By: Jamie LaRue

In 1875, President Grant called for the establishment of free public schools. It was, in part, a response to a wave of European immigration. Schools, like public libraries, were supposed to Americanize the foreigners. Close on the heels of this proposal, Republican Congressman James Blaine pushed for a constitutional amendment that would have forbidden the expenditure of public money on “denominational” or “sectarian” schools. While the bill passed in the House, it failed in the Senate, and never became law.

Nonetheless, over time, some 38 states, mostly as they joined the union, adopted versions of the “Blaine Amendment” in their own constitutions.

Many American Protestants of the time, particularly the white majority, feared the Catholic Irish, who were often portrayed in the media as drunken barbarians. “Irish Need Not Apply” was a common storefront sign.

Quickly it became clear that the public school system was an unabashed tool for the promotion of Protestant evangelical beliefs, and often did involve explicit religious instruction. In response, Catholic leaders formed a parallel system for education. But the Blaine Amendments meant that Catholic schools were denied public funding.

Over time, leaning on the idea of the separation of church and state, public education became less overtly religious. (Often, the best ideas in our Constitution seem to take a little time to find their feet.) Today, the language of the Blaine Amendment seems pretty neutral: public funding isn’t for religious schools, period, not Muslim, not Catholic, not Baptist. Moreover, with the election of JFK, it appeared that the smoldering anti-Catholic sentiment of politicians, the Ku Klux Klan, and the typical voter had passed into history.

But a series of court decisions has flipped the story: now, some argue, it’s a sign of religious bigotry to deny funding to schools if the only reason is religious. In 2002, SCOTUS found that some religious educational programs may indeed receive public funding without violating the First Amendment, particularly when the local public school is failing. Then came 2016’s Trinity v. Lutheran, about public money impermissibly, according to the court, denied to a religious school for playground equipment.

Now, a case on “school choice” and the Blaine Amendment is headed from Montana to the US Supreme Court.

As reported in the Atlantic, Espinoza v. Montana Department of Revenue will decide if states may discriminate against religious options in generally available scholarship programs. The Supreme Court of Montana, in its majority opinion, concluded that the tax-credit scholarship program violates the Blaine Amendment, even though it is funded entirely through voluntary, charitable, private donations incentivized by the state’s tax credit. The United States Supreme Court has agreed to take the case. The case is being argued by the Institute for Justice, a conservative think tank.

Full disclosure: I was the lead plaintiff in a 2011 ACLU lawsuit, based on Colorado’s Blaine Amendment, challenging public school vouchers to religious schools. It too was struck down by the state Supreme Court. It, too, might have gone to SCOTUS if the school board hadn’t decided to let it drop.

But I still think the prohibition against public expenditures for religious schools makes sense. I have three reasons.

1. Public money should serve public purposes. It is in our national interest to have strong STEM programs in our schools, to grow scientific and technological expertise. How can we justify expenditure taxpayer dollars on instruction that denies evolution, and claims the universe is only 6,000 years old?
2. But giving the state a veto over the teaching of religious beliefs within a school is equally wrong. One’s personal beliefs are private.
3. The precedent isn’t just for Christian schools. Will it apply to Islamic madrassas? Schools to proclaim the truths of the Flying Spaghetti Monster? To date, most of the current conservative thinking is clearly to bind Christianity and the state more closely together; an “establishment” that is a direct violation of the First Amendment.

So the co-mingling of public and private religious funds is injurious to both.

But we’ll see what the Supreme Court has to say about it, and probably by this summer.

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Jamie LaRue is a former public library administrator, former director of the Freedom to Read Foundation and ALA’s Office for Intellectual Freedom, and a current consultant and speaker.