Your guide to the intersection of school choice, the courts and the constitution.
In 2020 and 2022, the nation’s highest court threw a one-two punch at state bans on religious schools’ eligibility to participate in education choice scholarship programs.
Some supporters hailed Espinoza v. Montana and Carson v. Makin as panaceas, the end of constitutional provisions that excluded religious institutions from public programs. Some opponents decried them as a breathtakingly radical breakdown of church and state separation.
But recent legal and legislative actions at the state level show that as usual, reality is a lot more messy. Neither side can claim total victory.
“The typical Blaine Amendments (those that prohibit public funding of religious, or sectarian, schools) are no longer a legal barrier to choice—period,” said Michael Bindas, an attorney with the Institute for Justice who argued the second landmark case, Carson v. Makin, before the U.S. Supreme Court on behalf of families.
However, some state constitutions contain what Bindas calls “Blaine variants” that prohibit public funding of all private schools, religious or not. The high court’s rulings focused on constitutional provisions that excluded religious schools.
“Carson and Espinoza do not speak directly to the federal constitutionality of public/private Blaine Amendments, because these provisions do not target religious schools alone; they discriminate against all private schools,” he said.
A no-aid provision in Wyoming’s constitution even prompted Gov. Mark Gordon to use his line-item veto on the state’s 2024 education choice bill to avoid triggering a court challenge. It says the state cannot “loan or give its credit or make donations to or in aid of any individual, association or corporation, except for necessary support of the poor.”
The federal rulings, and those broader state Blaine variants, have shifted the fight to states, with legal battles now in South Carolina, Alaska and Kentucky. In Michigan and Massachusetts, education choice supporters are fighting back with lawsuits of their own.
Striking back at Blaine
The latest salvo comes from Massachusetts, where two families represented by IJ filed a federal lawsuit against the state on Monday. The case stems from a state law that guarantees that all students are entitled to special education services, no matter what type of schools they attend. Yet even though the law entitles all children to the services, a regulation makes access to services practically unobtainable for private school students. The reason? A Blaine variant. Regulators at the Massachusetts Division of Elementary and Secondary Education say that services delivered at a student’s private school violate the state’s no-aid clause.
“Massachusetts guarantees special education for all kids who need it. All we want is for Massachusetts to honor that guarantee,” said Josh Harrison and Miriam Segura-Harrison, whose son can’t receive the reading services he needs at his Jewish day school.
In Michigan, five families represented by the Mackinac Center for Public Policy and Bursch Law have asked the U.S. Supreme Court to hear a case involving its Blaine amendment. The amendment, approved in 1970 and deemed one of the most draconian in the nation, has prevented families in the Great Lakes State from benefiting from a 2017 federal law that allows money saved in tax-exempt 529 accounts to be spent on K-12 private school tuition.
Ground zero becomes a new battleground on two fronts
In Montana, ground zero in the first of the two landmark U.S. Supreme Court decisions in 2020, the education choice fight is back in the headlines. Instead of a small tax-credit scholarship program, the latest fight centers on a new education savings account program for students with disabilities. (A separate lawsuit has been filed over the state’s charter school program.)
Among other claims, the lawsuit argues the program runs afoul of the Treasure State’s Blaine amendment, which bans “appropriations for religious, charitable, industrial, educational, or benevolent purposes to any private individual, private association, or private corporation not under the control of the state.”
EdChoice Legal Advocates recently petitioned the court to intervene to protect the program, which is scheduled to start in the 2024-25 school year.
Thomas M. Fisher, EdChoice’s vice president and director of litigation, said the law makes the state Office of Public Instruction, a government agency, responsible for reimbursing parents’ education expenses.
“Opponents might say there’s a direct appropriation to parents, but there’s really not,” he said. “I think that probably finds a home within the Montana constitution.”
Different states, same funding argument
Aside from Blaine, plaintiffs also alleged that the program will “shake out Montana’s public education piggy bank” and redirect money to private school students at the expense of those who deprive students who stay in district-operated schools. That’s a common argument in other states, including Florida and Oklahoma, where the courts found that the plaintiffs lacked standing to sue and couldn’t prove the program harmed public schools.
“When scholarship students leave, districts still receive some state and federal funds and don’t have to bear the cost of that student’s education,” Fisher said.
