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144 YEARS IN THE MAKING: On June 30, 2020 The U.S. Supreme Court validated a parent’s right to direct the education of their children. In the case, Espinoza v. Montana Department of Revenue, the court found that a provision in Montana’s Constitution that had the effect of denying parents the choice of attending religious schools is discriminatory and violates the free exercise clause of the U.S. Constitution. Such provisions, commonly called a “Blaine Amendment” (and described in detail below) have existed in 37 state constitutions. The Espinoza decision portends the beginning of their demise.

The court’s decision was a victory for education opportunity and excellence. Wrote Chief Justice John Roberts in the 5-4 majority opinion, “Drawing on ‘enduring American tradition,’ we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children.”

The decision sent shock waves through the traditional education establishment. As the Institute for Justice put it, “While this ruling effectively invalidates nearly every Blaine amendment, there is more to be done to ensure that this ruling is enforced, specifically by wiping bad case law off the books and establishing school choice programs in every state.”

Throughout the United States, 37 state constitutions had “Blaine Amendments” — named after 19th century Congressman James Blaine nearly 150 years ago — that unfairly prohibited aid to religiously affiliated schools that could otherwise be given to secular schools. Because of these Amendments, millions of families have been denied the ability to give their children the best education possible. Over the years, in state after state, your government and its lawmakers have often avoided enacting educational reforms that give parents choices over private schools, having been led to believe that giving parents the power to use their tax dollars to choose a school other than their public school is unconstitutional. But now the high court has said what many have known for years – that what is actually unconstitutional is denying parents their rights over a diverse range of education choices, religious or not.

Kendra Espinoza and several other mothers challenged this bigotry that Montana courts permitted in protection of that state’s Blaine Amendment. They took their case to the U.S. Supreme Court, fighting not just for their kids but for all who suffer i state-sponsored discrimination.

Thankfully, our nation’s highest court buried this “doctrine borne of bigotry” – as the Court called it – saving the educational successes that were in jeopardy in Montana and throughout the nation. Justice prevailed and the Blaine Amendment was overruled, empowering countless underserved Montana students to be given new opportunities to obtain and continue a quality education of their parents’ choosing without fear of having it taken from them.

Now it’s time to remove those 18th century Amendments from the law books in every state!

Text of amicus brief filed by CER in support of Espinoza

Blaine Amendments are a shameful assault on parental rights, equality of opportunity, freedom of choice, and, of course, the First Amendment itself. But here’s the awful truth: that’s why Blaine Amendments were written in the first place! It’s sad but true.

During the height of the Know-Nothing Era in the 1800s, the Blaine Amendment was specifically designed to target and forcibly assimilate new immigrants to the U.S. who held non-Protestant religious beliefs by preventing them from attending their own schools. While it failed at the federal level, it was adopted by dozens of states. And while they were originally aimed mainly at Catholics, they were eventually used to hurt the entire faith-based education community and those it serves. Across the nation, Blaine Amendments egregiously gave license to local government authorities to hinder parents from doing what they know in their hearts is best for their kids. And with each day these outdated products of prejudice were allowed to stay on the books, more and more students were put at risk.

As the Institute for Justice has written, “Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.”

Why The Supreme Court Ruling Against An Obscure 19th Century Act Of Bigotry Will Improve Education For Millions

(Forbes, July 2020)

"The Problem With The Blaine Amendment" by Jeanne Allen

(The Huffington Post, August 2017)

The Bigotry of Blaine No More

(National Catholic Register, July 2, 2020)

To help parents and lawmakers apply the ruling in the Espinoza case to their own states, CER commissioned the foremost constitutional lawyer in the nation to provide a roadmap for states.

In Making the Most of Espinoza to Advance Education Opportunity, states can now learn precisely how they can  move swiftly to wipe Blaine Amendments off the books and remove the barriers to restrictions on educational choices that are rooted in religious discrimination. In the paper, Kirkland and Ellis partner and former Solicitor General Paul Clement – who has argued more than 100 cases before the Supreme Court – argues that

 “In some states, legislation may be sufficient to enjoin application of a Blaine Amendment. In other states, an advisory opinion (from the Attorney General or state supreme court) may be the preferred course. In still other states, it may be necessary to bring a declaratory judgment action seeking a court ruling. And a state’s particular law and circumstances may call for some combination of these efforts — even all three.”

States that are doing just that – challenging their Blaine Amendment, include South Carolina and Kentucky.

In addition, because they know they have legal standing now, several states having recently enacted or expanded education opportunity programs that allow parents to direct funds to the schools or programming of their choice.  This is particularly vital in light of how devastating the impact of Covid has been on the nation’s school children. But many more laws, like Montana’s will likely be challenged.

How can you and your state take action to advance or defend education choice? Here are a set of information blocks that will help inform and educate you about what it takes to ensure that no longer is your state harboring vestiges of religious bigotry in its state’s constitution.

Read the Full Report "A Memorandum: Making the Most of Espinoza v. Montana Department of Revenue to Advance Education Opportunity"

(November 2020)

Watch: Espinoza: Implications and What's Next

BREAKING: THE SUPREME COURT STRIKES DOWN DISCRIMINATION IN EDUCATION, AGAIN

Lawsuits, policy actions and challenges using Espinoza as a sword to fight discrimination are happening all over the country.

South Carolina: On May 11, 2021, a highly anticipated District Court decision in a lawsuit filed by the Archdiocese of Charleston, Bishop of Charleston vs. Adams did not strike down South Carolina’s Blaine Amendment but has definitely cast down the gauntlet for continued legal work with this quote from the Court’s decision, “The Plaintiffs have only begun to scratch the surface of what will no doubt be a well-litigated challenge to the no-aid provision on the merits…”

Vermont: The State Board of Ed took the bold step of ordering 3 school districts to reimburse families for tuition paid to religious schools, something only possible since the High Court lifted the constitutional cloud on choice in Espinoza v. Montana.