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When Washington state denied Joshua Davey a college scholarship, it may have inadvertently set in motion the next big step forward for the school choice movement. Both Washington state and school choice opponents nationwide rely on the so-called Blaine amendments to deny educational choice to anyone like Davey who chooses a religious school. When the U.S. Supreme Court hears his case, Locke v. Davey, tomorrow, it will have a golden opportunity to strike a blow for the free exercise of religion and for school choice. With one decision, the high court can remove a major impediment to school choice and sweep aside the current state-by-state legal battles threatening meaningful education reform. When the Court confirmed last year in Zelman v. Simmons-Harris that the First Amendment’s establishment clause does not require neutral school choice programs to exclude religious schools, it left a critical question unanswered: Can states, based on their own constitutions, exclude religious options without interfering with the free exercise of religion clause and other federal rights? The Court now confronts that question. DAVEY’S CASE Washington’s publicly financed Promise Scholarship program helps Washington residents who demonstrate superior academic performance and significant financial need to attend in-state colleges and universities. Davey qualified for a scholarship. But when he chose to attend a religious college and pursue a joint major in pastoral studies and business administration, the state told him he was no longer eligible. What disqualified Davey was the state’s interpretation of language of the Washington Constitution’s Blaine amendment, Article I, §11, which states that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Among the ways that Washington implements that language is a statute applicable to the Promise Scholarships, which provides that “no aid shall be awarded to any student who is pursuing a degree in theology.” Washington treated Davey’s pursuit of a pastoral studies degree as pursuit of a theology degree, thereby rendering him ineligible for the scholarship. Represented by lawyers from the American Center for Law and Justice, Davey filed suit in federal court, alleging violations of his rights under the free exercise clause of the First Amendment. Although the trial court ruled against Davey, he prevailed on appeal to the U.S. Court of Appeals for the 9th Circuit, in a 2-1 decision last year ( Davey v. Locke). Excluding Davey because of the religious nature of the education he selected, the 9th Circuit held, “necessarily communicates disfavor, and discriminates in distributing the subsidy in such a way as to suppress a religious point of view.” By agreeing to review the case, the Supreme Court has the opportunity to make clear once and for all that the First Amendment cannot abide such a violation. BLAINE’S SHAMEFUL PEDIGREE Though it may be hard to understand from today’s perspective, the point of Blaine amendments was precisely “to suppress a religious point of view.” Unlike the de-religified public schools we are familiar with today, as originally conceived and administered in the 19th century, the public schools were generically Protestant in orientation, “nonsectarian” only in the sense of not teaching any doctrines unique to any sect of Protestants. Among other objectives, the schools were intended to “Americanize” recent immigrants to the United States, among whom were large numbers of Roman Catholics. When Catholics’ objections to their children in public schools having to read the Protestant King James Bible, and to the pervasive anti-Catholic bias in many of the accepted textbooks, went unsatisfied, Catholic parochial schools were founded. Opposition to Catholic agitation for equal funding for their schools resulted in early versions of the Blaine amendments. And those formed the models for Rep. James Blaine’s unsuccessful effort to pass a federal constitutional amendment. The reaction of the Protestant establishment was swift and sure: It began an effort to enshrine in state constitutions amendments to make sure that no public funds were to be appropriated for sectarian (read: Catholic) schools. In Massachusetts, for example, where Horace Mann’s common school movement got its start earlier in the 1800s, one of the first things the nativist, xenophobic, and anti-Catholic Know Nothing Party did upon taking over the state government in 1854 was to pass one of the earliest Blaine amendments, to squelch the idea that Catholic schools had a right to equal funding. It was in response to later instances of this recurring “school question” that Blaine fashioned his amendment. And while his 1876 amendment failed to attain the two-thirds congressional supermajority required, the Republican majority in Congress had more than enough votes to require that all new states such as Washington subsequently entering the union include Blaine amendments in their constitutions. Washington’s law is a direct descendent of these bigoted efforts. In recent years, Blaine amendments (and similar types of state constitutional religion clauses) have been among the primary obstacles school choice opponents have used to block families from freely choosing their educational providers — public, private, or religious. Opponents tried (and failed) to use Blaine amendments to stop school choice in Wisconsin, Illinois, and Arizona. They relied on a similar state constitutional provision in their unsuccessful efforts to thwart the Ohio program upheld in Zelman. Even since Zelman, opponents of educational and religious choice have clung to Blaine amendments. A coalition of teachers’ unions and other special interest groups challenging Florida’s school choice program dropped their federal claims when the Supreme Court in Zelman upheld choice in Cleveland, and now rely exclusively on the state’s Blaine amendment. In challenging Colorado’s new Opportunity Contract program, choice opponents did not even bother to raise federal claims, instead relying on the state constitution’s religion clauses. All but three states have a Blaine amendment or a similar clause, and opponents of educational freedom will continue to wage a state-by-state battle against choice. FREE EXERCISE VS. THE STATES This tension between federal free exercise rights and state constitutions, typified by these contemporary battles, goes at least as far back as 1947. That year, in Everson v. Board of Education, the U.S. Supreme Court held that the establishment clause applies to the states, and upheld a New Jersey program that provided transportation to all schoolchildren, including those attending religious schools. The Court intimated that to exclude students attending religious schools from such a facially neutral program would raise serious concerns under the free exercise clause. Notwithstanding this warning, a number of state supreme courts used their states’ Blaine amendments to strike down similar transportation programs. The same thing happened after the high court upheld New York’s law providing free secular textbooks to schoolchildren regardless of the sort of school in which they were enrolled, in Board of Education v. Allen (1968). Again the state Blaine amendments led some state supreme courts to invalidate the inclusion of students attending religious schools in similar textbook programs in their states, on the theory that it constituted aid to religious schools. Again the religious neutrality of the programs was ignored in discriminating against those families exercising their rights to choose an education for their children in religious schools. In Davey’s home state of Washington — among the most stringent interpreters of Blaine amendments — a single infamous case makes clear the tension between federal free exercise rights and state constitutions. Larry Witters, a blind college student who wished to attend a religious college to pursue a religious vocation, was eligible to have his tuition paid by the state vocational rehabilitation program. But state administrators refused, citing Washington’s Blaine amendment and the federal establishment clause as barriers. Witters sued, and in Witters v. Washington Department of Services for the Blind (1986) the U.S. Supreme Court ruled unanimously that it would not violate the establishment clause to pay his tuition. After the case was remanded to state court, the Washington Supreme Court blocked aid to Witters anyway, holding in Witters v. Washington Commission for the Blind (1989) that it would violate the state’s Blaine amendment. (A strong dissent pointed out that refusing state aid on the basis of religion violated the free exercise clause.) Now, thanks to another Washington college student, the U.S. Supreme Court finally has an opportunity to re-establish the paramount importance of federal free exercise rights, and end the confusion and conflict between state and federal jurisprudence on religious freedom. BURYING BLAINE There is good reason to think that the U.S. Supreme Court will do exactly that. After all, individual justices have already recognized the religious animus underlying the Blaine amendments and their progeny. Writing for a plurality in Mitchell v. Helms (2000), Justice Clarence Thomas stated, “hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. . . . This doctrine, born of bigotry, should be buried now.” Thanks to Joshua Davey, the Court now has an opportunity to do just that. Should it choose to bury the legacy of Blaine, it will remove a significant barrier to programs promoting parental choice in education, just as surely as it vindicates the rights of all of us to be free from discrimination based upon religion. Such a ruling would reaffirm the Court’s neutrality jurisprudence, and the rule that while states may not discriminate in favor of religion, neither may they discriminate against it. Thousands of schoolchildren trying to escape from failing public schools throughout the nation will owe an immense debt of gratitude to a young man from Washington state. Dick Komer is a senior attorney at the Institute for Justice in Washington, D.C., which filed an amicus brief supporting Davey with the Supreme Court in the pending Locke v. Davey case.

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