In the wake of the U.S. Supreme Court ruling in Zelman that the Cleveland voucher program does not offend the First Amendment, The Christian Science Monitor reports that state legislatures in California, Pennsylvania, Maryland, Kansas, Minnesota, and Maine will introduce voucher legislation this year. And in Washington, D.C., House Republicans say they will introduce legislation to create a voucher program for the District of Columbia.
But voucher programs face many hurdles at the state level. Last Monday, a Florida judge ruled that the state's school voucher law violates the state constitution's prohibition against the use of state revenue to aid any church, religious denomination, or sectarian institution. (On Friday, the same judge ruled that the voucher program could continue while the case moves forward on appeal, but that the state must set aside $2.5 million which will be given back to the public schools if the appeals court upholds his ruling against the voucher program.)
The Florida decision also draws attention to similar provisions prohibiting aid to religious institutions- known as Blaine amendments- in other state constitutions. Opponents of vouchers hope to use these provisions to challenge voucher programs nationwide, but advocates hope to strike first by filing lawsuits challenging the Blaine amendments themselves.
Blaine amendments were inserted into state constitutions in the late 19th Century at a time of strong anti-Catholic sentiment. James G. Blaine, "the man from Maine," a Republican Senator, proposed an amendment to the U.S. Constitution after Catholics, upset about the pervasive climate of Protestantism in the public schools of the day, sought funds to start their own schools. The amendment failed at the federal level but was taken up by many state legislatures.
While the Florida court has interpreted that state's Blaine amendment literally, courts elsewhere have ruled that barring students from using state funds to study in religious schools amounts to discrimination on the basis of religion, a violation of the federal Constitution's free exercise clause. Eventually the Supreme Court will need to rule on whether state-level Blaine amendments violate the U.S. Constitution. In the meantime, expect much squabbling in state courts.
"School's out, but fight over school choice is in," by Gail Russell Chaddock, The Christian Science Monitor, August 13, 2002
"Judge: State must put funds in escrow," by Daniel Grech and Joni James, Miami Herald, August 10, 2002
"The Next Voucher Battleground," editorial in The Wall Street Journal, August 7, 2002
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In his weekly EIA Communique, Mike Antonucci argues that the legal battles in state courts will make abundantly clear that the campaign against school choice is not about constitutional law, but about money and the survival of the teachers unions. The unions and their representatives have stated plainly that their goal is to destroy a program that they think is bad policy, he writes, not to uphold a Constitutional principle.
"The Machiavellian Campaign against School Choice," by Mike Antonucci, EIA Communique, August 12, 2002