The intersection of the U.S. Supreme Court, the establishment clause, and religious schools has a surprisingly short history. “Before the 1960s there was virtually no litigation on this topic,” says Douglas Kmiec, a professor at Pepperdine School of Law and an adviser to voucher advocates. Indeed, Kmiek points out that in the early 1900s, when an anti-immigration senator, James Blaine, led a movement to amend the Constitution to preclude public funding of religious schools, no one argued that the establishment clause already blocked the flow of tax money to religious schools.

And in the Supreme Court’s early applications of the establishment clause to cases involving sectarian schools, says Kmiek, “the message of the court was accommodation.” The justices upheld tax reimbursements for parents who paid to bus their children to religious schools in 1947′s Everson v. Board of Education. Twenty-one years later, in Board of Education v. Allen, the Court again sided with the religious schools, ruling that the state could furnish textbooks to children in parochial schools.

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