Removing Florida’s Blaine Amendment may not help advance school choice

A proposal advanced last week by a panel revising Florida’s constitution would eliminate an oft-cited barrier to private school choice.

The proposal has already incited teeth-gnashing among voucher critics. But they elide the fact that courts have already begun to weaken Blaine Amendments, and could undo them entirely.

Indeed, the threat to Blaine Amendments pose to school choice in Florida has been greatly exaggerated.

Step Up For Students president Doug Tuthill said Florida’s education choice movement has no concerns about Florida’s Blaine Amendment. “Florida’s Blaine Amendment is not an impediment to expanding education choice,” he said.

People my age grew up with a phrase emblazoned in our minds: “Separation of church and state.” We learned about it in eighth-grade civics, alongside freedom of speech and the right to bear arms.

Private school choice opponents often suggest letting parents use publicly funded vouchers to pay tuition at religious schools must somehow violate our nation’s deeply held principles.

But for 15 years and counting, they’ve been wrong. The U.S. Supreme Court ruled in Zelman v. Simmons-Harris that our nation’s founding document allows vouchers for religious schools. The programs simply have to be religiously neutral. They have to treat Jewish, Christian, Muslim, Hindu and secular schools equally.

In a sense, the Zelman ruling merely codified for K-12 what had been going on in higher education for generations. Veterans who returned from WWII could use the G.I. Bill to attend religious seminaries. Still, the precedent was a huge win for the school choice movement. It also elevated the importance of another barrier, still on the books in roughly two-thirds of the states. The so-called “Blaine Amendments” bar public funding of churches or “sectarian” institutions.

Blaine Amendments were born in the late nineteenth century, at a time of rising anti-immigrant sentiment. Many of those immigrants were Jews and Catholics from Ireland or Eastern and Southern Europe.In a presentation to a panel of Florida’s Constitution Revision Commission, Ben Gibson, a lawyer and member of the Florida Board of Education, walked through the history. The implication was clear. Florida could use its unique, once-every-two decades process of revising the state constitution to take a relic of bigotry off the books. In so doing, it would also wipe away a legal precedent that has been used to threaten school choice programs in the state.

The First District Court of Appeal in 2004 cited Florida’s Blaine Amendment to block the Opportunity Scholarship Program, a voucher championed by Gov. Jeb Bush. But less than two years later, the state Supreme Court shelved that logic. It struck down the voucher program, instead, by citing an entirely different section of the constitution — one of the revision commission might also address.

In the decade since Bush v. Holmes, other private school choice programs have flourished. And courts have issued several rulings that place them on stronger constitutional footing.

  • The Florida tax credit scholarship program now helps more than 100,000 children pay private school tuition. Courts rejected a 2014 lawsuit that argued the program violated the Blaine amendment, finding the plaintiffs did not have standing to bring the challenge.
  • Gardiner Scholarships allow parents of children with special needs to purchase a wide range of educational services, including private religious schools. Court rulings in Nevada and Arizona suggest that kind of program, known as an education savings account, could be less vulnerable to a Blaine Amendment challenge conventional vouchers.
  • Florida’s most widely used voucher is for preschoolers. As the commission’s Deceleration of Rights panel heard Wednesday, any legal challenge would be complicated by the fact that the state constitution mandates Voluntary Pre-K. When the Legislature first proposed creating the program, the ACLU threatened to sue to stop it. More than a decade later, though, no lawsuit has been filed.
  • The McKay Scholarship program, a more conventional voucher for children with special needs, may appear more vulnerable. But supporters may find comfort in a recent Oklahoma Supreme Court ruling that rejected a Blaine Amendment challenge after concluding vouchers for special needs children serve a secular purpose.

The Oklahoma court’s logic is gaining traction nationwide. The U.S. Supreme Court recently hinted it’s poised to gut Blaine Amendments altogether. The school choice case that might have prompted such a ruling hit a snag when anti-voucher candidates swept a Colorado school board election. But the threat Blaine amendments pose to private school choice continues to diminish.

Floridians might want to get ahead of any federal high court ruling. They might want to clear away any constitutional doubts about other, politically popular programs the state provides through faith-based organizations.

But a warning from a prominent real estate lawyer might be relevant here. At the beginning of the Deceleration of Rights panel’s meeting, he raised a political caution about a measure that would eliminate the government’s authority to limit immigrants’ property rights. There was one potential downside. What message would it send if the commission proposed it, and Florida voters rejected it?

Floridians had a chance to remove the Blaine Amendment in 2012. Despite protestations on this blog and elsewhere, that the proposal was not motivated by vouchers. Still, the teachers union poured money into opposing the ballot initiative. When voters rejected it, they gave school choice opponents a talking point for years to come.

No matter the motivations, a failed referendum on the 2018 ballot could backfire. That could help preserve the spirit of an outdated, bigoted and ineffective provision in our state’s governing document for another generation.

Step Up For Students publishes this blog.

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