Now give low-income kids scholarships to private schools
An ugly vestige of bigotry recently tumbled from its pedestal. Its crumbled remains will no longer stand in the way of equal treatment in Colorado or any other state.
Less than two weeks ago, the U.S. Supreme Court ruled that Blaine amendments in state constitutions violate the First Amendment’s free exercise clause and can no longer be used to discriminate against parents who choose faith-based schools. The Blaine Amendment in Colorado’s constitution is now null and void.
Should the state legislature or a reform-minded school board decide to aid students in nonpublic K-12 schools, (the state already helps students in private preschools and universities), opponents can no longer appeal to constitutional language borne of 19th Century anti-catholic and anti-immigrant animus. With Colorado’s Blaine Amendment on the ash heap of history, our state has a real opportunity to help poor and middle-class families who are struggling financially in these difficult economic times.
On June 30th, the High Court ruled in Espinoza v. Montana Department of Revenue that the state’s Blaine Amendment discriminated against families whose children attend or want to enroll in faith-based schools. The state legislature had enacted a tax credit for taxpayers who donate to nonprofit organizations that provide tuition scholarships for students to attend secular or faith-based private schools. After the Montana Supreme Court struck down the program for violating the state’s Blaine Amendment, the Institute for Justice appealed to the U.S. Supreme Court on behalf of parents including single mom Kendra Espinoza who needed the financial assistance.
Currently, 37 states including Colorado have Blaine amendments in their state constitutions. Named after Congressman James Blaine of Maine for his efforts to add such language to the U.S.
Constitution, the amendments prohibit aid to “sectarian” schools. In the mid-19th Century, the emerging public schools were commonly Protestant in character, requiring, for example, the reading of the Protestant King James Version of the Bible in classrooms. With the backing of the Ku Klux Klan and members of the nativist Know Nothing Party, prohibitions on aid to “sectarian” schools were added to state constitutions. See Justice Alito’s concurring opinion in Espinoza for a deeper historical dive.
Blaine provisions took a hit when the Supreme Court ruled three years ago in Trinity Lutheran vs. Comer that Missouri violated the First Amendment by denying an otherwise eligible recipient a public benefit because of religion. The state had denied a preschool run by a Lutheran church a public grant to resurface its playground on grounds that funding a faith-based institution would violate the state’s Blaine Amendment. The Supreme Court ruled the decision unconstitutional. The High Court then ordered the Colorado Supreme Court to reconsider its 2015 ruling against the Douglas County voucher program in light of the Trinity ruling.
Two weeks ago, justices delivered the final blow. If a state provides support to families who choose nonpublic schools, it cannot discriminate against parents who choose faith-based schools. “The Constitution forbids laws that prohibit the free exercise of religion,” wrote Justice Gorsuch in his concurring opinion, “That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”
The Espinoza ruling means that if an enterprising school district in Colorado, the state legislature, or the voters themselves through a ballot initiative create a tax credit for scholarships or a voucher program, the Blaine provision in the Colorado constitution cannot stand in the way. Our state already offers College Opportunity Fund vouchers for students to attend public or private secular or faith-based universities. Taxpayers receive an income tax credit for contributions to promote child care in Colorado including faith-based organizations.
The timing of the Espinoza decision could not have come at a more opportune time. Poor and middle class families are struggling financially. Scholarship organizations and private schools are receiving fewer donations. While Congress may vote to provide relief for parents in another COVID relief bill, a longer-term solution is needed. More than half of states have a voucher or tax credit law to support students from low and middle income families. Now is the time for Colorado to join them in supporting diverse education options for families. In the ashes of discrimination, let’s plant opportunity.