A recently filed lawsuit could make South Carolina the second state in the nation to be forced to stop using vestiges of 19th century bigotry, in the form of the Blaine Amendments, to block 21st century education reform.
When Congress passed the CARES Act last March, it included emergency educational relief funds that states could direct to schools and other educational institutions affected by COVID-19. With some of those funds, South Carolina created a grant program that would have allowed students to apply for need-based grants and use the funds to attend private schools of their choice. That grant program was timely, because private schools were proving themselves far more adept than public schools at responding to the educational challenges posed by COVID-19. Nearly three dozen Catholic parochial schools and eight historically black colleges planned to participate.
Predictably, the program was challenged by those intent on preserving the public school monopoly. While two decades ago, the challengers might have invoked the federal Establishment Clause, the Supreme Court made clear in its 2002 Zelman decision that there is no federal constitutional obstacle to including religious schools in this kind of neutral grant program. As a result, challengers had to dust off South Carolina’s version of the Blaine Amendment, a reconstruction-era provision that Supreme Court Justices have characterized as born of religious bigotry. The provision, which broadened in 1972, bars the use of public funds for the “direct benefit” of “any religious or other private educational institution.”
That challenge went all the way to the South Carolina Supreme Court, which struck the grant program down as a violation of that Blaine Amendment.
Fortunately, the federal courts will have the final word.
The Roman Catholic Diocese of Charleston and an association of universities that includes several historically black colleges are now pursuing their own challenge to South Carolina’s Blaine Amendment and its discriminatory effect on the grant program. In Bishop of Charleston v. Adams, the challengers argue that South Carolina’s Blaine Amendment violates the First Amendment. The challengers urge the court to consider not just the present-day discrimination inflicted by the Blaine Amendment, but also its “ugly history.”
The Blaine Amendment — in South Carolina and elsewhere — was not some anodyne measure to protect public schools, but a product of pernicious post-Civil War prejudice against Catholic immigrants and newly freed slaves.
A recent decision by the U.S. Supreme Court puts wind in the challengers’ sails. Last June, in Espinoza v. Montana Department of Revenue, the Court went well beyond its earlier Zelman decision, which made clear that religious schools could be included in school-choice programs and held that states may not exclude religious schools from grant programs like South Carolina’s.
The Court held that such discrimination against religious schools violated the Free Exercise Clause. The Court also recognized the sordid history of state Blaine Amendments, which proliferated in state constitutions in the latter half of the 19th century in response to a wave of Catholic immigration and with the express and bigoted purpose of disabling Catholic schools.
The Espinoza decision has opened the door to educational opportunities that have long been blocked by Blaine Amendments. Both state legislatures and state courts should get the message that state constitutional provisions prompted by 19th century bigotry cannot be the basis for 21st century discrimination. But state officials in South Carolina have missed this central lesson of Espinoza by arguing that South Carolina’s provision discriminates against non-religious private schools as well as religious schools. That argument would not pass muster in any other context — imagine a state defending a law expressly discriminating against one racial group by pointing out that others were denied the same benefits.
The answer to discrimination is not more discrimination, but to wipe the Blaine Amendments off the books. Allowing provisions that were discriminatory in their origins to deny educational opportunity today is a double constitutional offense. The District Court recently denied a motion for preliminary injunction — but noted both the discriminatory origins of South Carolina’s Blaine Amendment and that plaintiffs “have only begun to scratch the surface” at this stage of the proceedings.
Not only did the Court in Espinoza remind us that parents indeed have the right to direct the education of their children and that state programs that help students attend a wide variety of schools — public, private, and religious — are constitutional, but it also paved the way for additional educational opportunities by calling into question the discriminatory legacy of James Blaine. That historical attempt to thwart Catholic schools should not stand in the way of today’s efforts to empower students and parents to pursue educational opportunities at a wide range of religious schools and historically black colleges. If the Blaine Amendments stand in the way, they should get the axe.
Paul Clement is former solicitor general of the U.S. and partner at Kirkland and Ellis. Jeanne Allen is the Founder and CEO of the Center for Education Reform. Clement authored CER’s brief in Espinoza v Montana Department of Revenue, which was relied on heavily by the Court).