February 17, 2003
Voucher proponents target Blaine amendments
___By Barbara Neff
___Religion News Service
___WASHINGTON (RNS)--Supporters of school voucher programs are going on the offensive in the courts to fend off threatened attacks on the programs based on state constitutional clauses, known generically as Blaine amendments.
___If they are successful, the outcome not only would enhance school voucher programs but also undermine expected constitutional challenges to other faith-based initiatives, including the drug treatment programs President Bush called for in his State of the Union address.
___The Supreme Court rejected federal constitutional challenges to voucher programs last summer. The court ruled the government could provide indirect funding to religious institutions by giving parents school vouchers and leaving the actual choice of schools to them.
___Bush has asked for $75 million for pilot school choice and voucher programs in the fiscal year 2004 budget he sent to Congress Feb. 2.
___Voucher supporters, however, fear future assaults by opponents wielding state constitutional provisions--the so-called Blaine amendments and their like--and experts agree such attacks are likely.
___The 19th century Blaine amendments take their name from Sen. James Blaine, who initially proposed a federal amendment precluding states from aiding sectarian schools. He said the amendment was intended to retain the Protestant nature of the country's public schools while refusing Roman Catholics' requests for funding for their schools. The federal amendment failed, but many states adopted the measure, some as a condition of their admission to the union.
___"The federal angle is now gone, so they are going to bring state challenges every place they can," said Ira Lupu, professor of constitutional law at George Washington University.
___The Institute for Justice, a libertarian public interest law firm, which has successfully defended a number of existing state voucher programs, recently launched a pre-emptive offensive against voucher opponents by filing suits in states with educational funding programs that exclude religious schools. The institute claims state constitutions' clauses that restrict government funding of religious institutions should be struck down as unconstitutional.
___Dick Komer, senior attorney at the institute, said his organization has brought suit in Washington and Maine and soon will file in Vermont and Colorado. Each of these states has at least one educational program or policy that denies funds based on constitutional religious clauses.
___In Washington, which doesn't have a voucher program, the institute is challenging a policy that prohibits state public university students from student-teaching at religious schools. Last year, the state lost a case challenging a state scholarship fund that excluded students majoring in religious studies.
___According to a report Lupu recently published, 37 states have Blaine amendments, 29 states have provisions explicitly forbidding financing of religious schools and 10 states extend the limitations to both direct and indirect funding. He cautioned that it's not the state constitutional language but how the state courts interpret that language that determines its ultimate impact.
___"There are two layers here," Lupu said. "How will state courts interpret their constitutions, and, if they interpret it in ways that say vouchers may not be used in religious schools, then there will be federal attacks."
___The Institute for Justice considered such interpretations when devising its strategy on vouchers, Komer said. "We looked for the states that had existing school-choice programs that are being limited by the state supreme court or the state religious clauses to exclude religious schools."
___But if this matter makes its way to the Supreme Court, justices could find themselves in a dilemma.
___Five justices voted to uphold a Cleveland school voucher program last summer--William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. But their ruling allowing government funds to be used to send students to private or parochial schools could conflict with their general support for states' rights.
___"The same justices who ruled in favor of the Cleveland program are also the justices who are most insistent on protecting the power of the states," Lupu said. "They're going to be in conflict, with their philosophies of approving vouchers but also protecting state authority."
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