Robert Natelson, a retired constitutional law professor who is allied with the ultra-conservative Heartland Institute, writes in this opinion article that the Supreme Court may well strike down the state prohibitions on funding religious schools (known as “baby Blaine Amendments) because of their origins in anti-Catholic bias. If this happened, it would pave the way for government to divert public funding to the vouchers for religious schools that Secretary of Education Betsy DeVos advocates for.
The Blaine Amendment was proposed by Speaker of the U.S. House of Representatives James G. Blaine in 1875. Blaine was an ambitious politician from Maine who ran for president in 1876, 1880, and 1884. He was interested in a wide range of issues, including trade, monetary policy, and foreign affairs. He is remembered today for the Constitutional amendment he proposed, which passed the House but not the Senate:
“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”
Although the Blaine Amendment was not adopted as an amendment to the U.S. Constitution, it was adopted by many states and incorporated into their state constitutions to prohibit spending public money on religious schools.
Natelson is right that the public schools of the nineteenth century were deeply imbued with Protestant teachings and practices. I wrote about the battle between Protestants and Catholics in my history of the New York City public schools (The Great School Wars). The arrival of large numbers of Irish immigrants in the 1840s, mostly Catholic, concurred with the beginnings of public school systems in urban areas.
In New York City, Bishop John Hughes (later Archbishop Hughes) fought the local school authorities over the content of the textbooks, which contained anti-Catholic selections, and the daily Protestant prayers and rituals in the schools. Hughes became politically active and demanded equal funding for Catholic schools, since the public schools–in reality, as he said–were Protestant schools. Even if they cleansed the textbooks of Protestant views of history, he said, the schools would still fail to meet the needs of Catholic children for a Catholic education. He did not want nonsectarian schools; he wanted Catholic schools. He proposed that the state fund both Catholic public schools and Protestant public schools. He ultimately lost the battle, but he determined to build an independent Catholic school system that was privately supported to make sure that Catholic children were not exposed to the Protestant teachings in the public schools. His example eventually persuaded the American Catholic Church to require all parishes to open their own schools, and to expect all Catholic children to attend them.
The Protestants who then ran the “public schools” in New York City tried to placate Bishop Hughes by expurgating textbook content that he found offensive. Their efforts did not satisfy Bishop Hughes because he did not want nonsectarian public schools. He wanted schools that taught the Catholic religion to Catholic children. He established such a system. I personally hope that it thrives, with the support of private dollars, but not with public dollars.
In the 1840s and 1850s, the Know-Nothing Party formed to advocate for white Anglo-Protestant nativism and to harass Catholics and immigrants. The popular press was rife with cartoons ridiculing Catholics and articles warning about the Catholic menace. Prejudice against Catholics and Irish immigrants occasionally turned violent, and churches and convents were burned to the ground.
The Blaine Amendment appealed to anti-Catholic sentiment among the dominant Protestant majority (Blaine’s mother was Irish-Catholic, and as Natelson points out, there is no evidence that he was prejudiced). Blaine was a member of the moderate faction of the Republican party and a strong supporter of black suffrage. (Ironically, Archbishop Hughes of New York was an opponent of abolitionism.)
Natelson maintains that the anti-Catholic origins of the Blaine amendment are reason to overturn them.
But it seems to me even more plausible to argue that the public schools today are not “Protestant schools,” that they are thoroughly nonsectarian in character, and that they fulfill the original promise of the Blaine Amendment, which is to serve all children on equal terms, regardless of their religion.
Thanks to the Supreme Court ruling Engel v. Vitale in 1962, forbidding state-sponsored prayer in the public schools, the public schools no longer impose any religious prayers or practices, as were common in most public schools well into the twentieth century.
The motives of James G. Blaine or Catherine Beecher Stowe or Horace Mann or Henry Bernard or any of the other nineteenth century founders of public schools are irrelevant today. They matter less than the reality and practices of public schools today that the Blaine Amendments permit and protect.
Because of the states’ Blaine Amendments, public schools across the nation welcome children who are of every religion or no religion, whether Catholic, Protestant, Muslim, Jewish, Hindi, Buddhist, atheist, or any other belief.
To rule against the Blaine Amendments would open the door to subsidizing religious schools with public dollars. On many occasions, voucher advocates have asked voters to repeal their state’s Blaine amendment to allow vouchers for religious schools, and in every state, voters said no. Betsy DeVos and her husband sponsored a referendum in Michigan in 2000 to roll back that state’s ban on vouchers, and voters rejected their proposal overwhelmingly. A proposal to permit vouchers was rejected by voters in Utah in 2007. Jeb Bush promoted a referendum to change the state constitution in Florida in 2012 (he called it the “Florida Religious Freedom Amendment”), and despite its deceptive name (who would vote “no” to “religious freedom”?), voters decisively said no.
The voucher programs that now exist were installed by state legislatures circumventing their own state constitution and the will of the voters. The pro-voucher legislators say that the money goes to the family to spend wherever it wants, including religious schools. They go out of their way to try to disguise these voucher programs by calling them something else, like “opportunity scholarships,” “tax credits,” “education savings accounts,” “empowerment savings accounts.”
The legislators know that the public opposes funding vouchers for religious schools. Thus they try to avoid calling them what they are or calling for a public vote. Voters have repeatedly made clear that they do not want to pay their taxes to underwrite religious schools.
The founders were wiser than we are. The First Amendment states clearly that Congress is not allowed to establish any religion. The founders were well aware of the centuries of religious rivalry and factionalism that had brought constant war and bloodshed to Europe, and they did not wish to encourage it in their new nation. The word “education” does not appear in the Constitution. It is a responsibility left to the states. That does not mean that the federal government has no obligation to fund education, in support of the general welfare; it does. That does not mean that the federal government does not have the power to protect the civil rights of students; it does.
If the High Court takes up the state Blaine Amendments, I hope it will recognize that the founders knowingly decided to avoid state entanglement with religious establishments. Let the states decide what belongs in their state constitutions, by popular vote. Our public schools are no longer the Protestant public schools that Bishop Hughes fought against. They are an integral part of our democratic society. They are a public good, like the services of police and firefighters, like public beaches, libraries, and parks. Separation of church and state is a valuable principle that protects the church schools from government intervention and mandates. Religious liberty is best protected by keeping it separate from government dollars and government control.
(This article also appears on the Huffington Post.)
https://www.inthepublicinterest.org/report-the-failure-of-policy-planning-in-californias-charter-school-facility-funding/
He also says ” For example, the Southern California charter school chain Celerity, which was recently raided by the FBI as part of an ongoing fraud investigation, has received generous state and Los Angeles Unified School District (LAUSD) facilities funding despite having its charter revoked by the school district. The Los Angeles Times recently found that Celerity’s CEO has been paying for expenses like Armani suits and a black car service using public funds.”
And
Want to help ensure a quality public education is available to all kids? Spread the word about Spending Blind, let us know about charter schools near you, and start asking tough questions about funding in your school district.
There could be huge unintended consequences to this. What if most of the parents in a given area are Catholic and they all use vouchers and the public school has to close?
Does a “choice” of a Catholic school or no school “count” as a free public education?
It isn’t like colleges. Children can’t travel long distances to school. They can’t hop over to another state or county and go to school there.
If ed reform is redefining “public” to mean “publicly funded” than offering parents ANY school should suffice, right? The state could meet their obligation by just handing out vouchers.
That’s Betsy’s devout wish. Every child gets a voucher to use for any place they wish.
We actually had a town here that offered only a Catholic school around 1880. If you wanted to go to public school you had live somewhere else.
Didn’t this already happen in NY? A religious majority defunded the public schools leaving the public school kids with next to nothing?
I love how DeVos runs around promoting this as win/win and no risk- when that is so obviously not true.
The lack of concern for kids in public schools is stunning. They simply don’t care what happens to them.
The New York town is East Ramapo. The public school board is controlled by Orthodox Jews who do not send their children to public schools. They divert whatever money they can to their own religious schools.
http://forward.com/news/196685/is-hasidic-board-to-blame-for-gutting-public-schoo/
We need to challenge the concept that a chunk of public money belongs to students or families. It is public money that belongs to all to serve all. When the money pays for common schools, the boundaries are very clear. When we start paying for “backpack vouchers,” the public money can be spent on idiotic “choices,”or the public money can just disappear. This is irresponsible government. When public money is sent to public schools, there is accountability and oversight. We need to challenge all these fraudulent privatized schemes.
What do you mean ‘unintended’?
I don’t think ed reformers have thought this privatization thing thru. They could end up with a set of exclusively religious schools in a given area as the only “choice” for a free public education.
It could really be a disaster- whole communities with only one religion represented and no “public option” at all.
The cavalier recklessness with which this stuff is “planned” always amazes me. They’re willing to throw out public schools without a second thought.
God almighty, the public will almost CERTAINLY regret that. No one gives the slightest thought to potential downside. They’re basically fantasists.
The case the Supreme Court will decide is a Lutheran pre-school that wants the state to pay to repave its playground. If the Supreme Court agrees, then the state would be on the hook for every repair. Get a new roof, new plumbing, whatever.
Gorsuch is a zealot for religious freedom issues. I would say that the most important way to protect religious freedom is to avoid entanglement with the state. It will be interesting to see how this plays out.
I sometimes wish ed reform would continue to over-reach. At some point public school parents are going to insist someone in government represent their interests.
It’s ridiculous that we 5000 politicians none of whom advocate for public schools. We are not represented.
You need to look more carefully at the “back issues” of the case. The state of Missouri has a program, to provide recycled tire chips to playgrounds. The playground operator must make an application, and the state has to approve it.
The Lutheran school made application for the program, and met all of the requirements. The state turned down their application, because the operator was a religious school. (The playground is not secured by a fence, and any child in the neighborhood can use the playground)
The school sued (primarily) on the 14th amendments “equal protection” clause. Are the children who use the playground, as equal as other children, to the state providing for their safety?
If the court finds for the plaintiff (the school), this will NOT mean, that the state has to pay for roof repairs, etc. If the decision goes for the school, then the children will be equal with the other children in the state, whose playgrounds have been made safe by the tire-chips program.
The case is before the SCOTUS because it has implications far beyond those of playground rubber. More states would wind up subverting the will of voters to fund religious playgrounds, buildings, libraries, payrolls, and fences and guns to keep the grizzlies at bay.
See
https://governor.mo.gov/news/archive/governor-greitens-announces-new-policy-defend-religious-freedom
Governor Greitens (Missouri) announced that the state will provide the tire chips to the playground! (Hooray!)
The children who play there, will have a safer playground.
This action will not affect the court case, which is scheduled for oral arguments April 19.
the Supreme Court has produced a three-part test: A statute pertaining to contact between government and religion does not constitute establishment of religion if the statute has “a secular legislative purpose” (again: knees), it neither advances nor inhibits religion, and it does not involve “excessive government entanglement with religion.”
This deserves a secular Amen!
Opening the door to fund schools other than public schools was an enormous mistake. Now we must contend with charters that constantly bribe and extort their way into a larger piece of the pie. As a result of charters, now we must contend with vouchers or neoliberal tax credits (closet vouchers). Public schools continue to be ignored by states and cities whose responsibility it is to provide common schools. Charters are not public schools, regardless of how they are sold to the public. Our public schools and 90% of our young people that attend public schools are an afterthought, an “inconvenience,” to the very people responsible for providing public education. Our educational policies are being dictated by corporations, billionaires and right wing extremists. It is time for local communities to stand up and stop this madness. Our children have a right to free public education. Privatization has failed to deliver on its promises, and it is a scheme to take public funds and public power away from the public and send it to private entities.
Given all the harmful effects of high stakes testing, non public schools (religious and secular private) have become an escape hatch for students whose brains don’t match our sort by birth year system. If the religious schools are taking public funds, there will be pressure for the voucher students to take the mandated tests. This already happens for “purchase of service” students that districts send to private schools for students with disabilities and behavioral issues. Voucher proponents should be careful what they wish for.
That Engel vs Vitale argument is strong. So is the 1st Amendment prohibiting the establishment of religion.
Regarding the Trinity school in Missouri, me, I’ve been to Missouri and am certain that grass grows there. I additionally believe children play on grass. Pretty sure they do. Trinity should have skipped the melted tire mats and let grass grow. But no, now we have this big, federal case about it that could lead to Protestant, Catholic, Baptist, etc. schools dominating, starving out nondenominational education, creating the most powerful form of segregation, school applications with religious affiliation requirements, established and funded by the Government. Who will get into the Protestant schools? Who will be able to teach in them? Who will regulate the expenditure of government funds by them? How will Bill Gates be able to ruin my life with Common Core testing if I have to teach in a Jewish school? They don’t have a Common Core circumcision test. Pass/fail. Pretty sure. I don’t even speak Hebrew!
I hope we have good lawyers. Thanks to Diane and HuffPo for providing such strong arguments.
I believe in freedom of religion, but allowing religion to dictate to government is dangerous and divisive. The beauty of our secular, common schools is that they bring all types young people together and encourage mutual respect and tolerance. We don’t want to be Northern Ireland or Saudi Arabia.
Google to Emma Brown’s page 1 piece in the Washington Post, “To DeVos Fla. shows the school choice way”, for the latest on DeVos’s sick crusade against public schools. — Edd Doerr
Exactly. No religion in our Public Schools!
What about all the public funds being funneled into private schools in Borough Park? There are millions of dollars being spent on private religious school construction and additions to already existing private religious schools. I know Borough Park isn’t East Ramapo, but it would be good to know how much of the money being poured into these schools is public.
Cuomo wants tax credits for his Orthodox Jewish and RC supporters
State sponsored religion is arguably false faith. The religious right should look closely at what it means to win this one.
If the members of a religious group need government aid to survive, they have a problem.
Plenty of theocracies in the middle east . Hows that working out for them ? About as good as it did in Europe. I’ll spare everyone the Jefferson quotes
“They are a public good, like the services of police and firefighters, like public beaches, libraries, and parks. Separation of church and state is a valuable principle …”
Exactly.
Thank you for keeping us current and for fighting on the political and current events in education, Diane.
Best regards,
-Shira