The United States Supreme Court heard arguments last month in Trinity Lutheran Church of Columbia, Inc. v. Pauley, a Columbia, Missouri case that has the potential to significantly change the application of church/state separation, including the funding of education. In this case, the church wanted to replace its pre-school playground with recycled tire rubber from the state of Missouri. The state refused, citing an 1875 state constitutional amendment – known as a Blaine amendment – that precludes the use of public dollars in “aid of any church.”
Blaine amendments rooted in anti-Catholicism
A little education history lesson is in order. In the 19th century public education had a pronounced Protestant influence. The reading of the Protestant King James Bible was “a common part of the curriculum.” Even Horace Mann, considered the father of the public school concept, “proposed Protestant religious devotional exercises be held in public school classrooms.” Not only were teachings of the Bible an integral part of public education in the 19th century, schools “did more than serve as surrogates for church instruction.” Schools were “the primary promulgators of the Protestant way of life.” In the mid-19th century, a wave of European immigrants, primarily from Ireland, increased the Catholic population dramatically. By the end of the Civil War, Catholics made up roughly 10% of the population. Along with their rising numbers came an effort to reduce the Protestant influence in the public schools, causing a backlash of anti-Catholic sentiment. The matter became a federal campaign issue in the 1870s.
In 1875, President Grant called for a constitutional amendment to forbid public money to sectarian schools. (In a 2000 Supreme Court decision – Mitchell v. Helms – the court noted “it was an open secret that ‘sectarian’ was code for ‘Catholic.’”) Grant’s go-to in Congress was James G. Blaine, a Maine Republican who had his eyes on the White House for the 1876 election (Mired in controversy, Blaine ultimately lost the 1884 election to Grover Cleveland). The House of Representatives overwhelmingly supported the amendment, but it fell four votes short in the Senate. Upon the defeat in Washington, attention centered at the state level where more success was seen in getting state constitutions to include some form of a Blaine amendment. In 1889, North and South Dakota, Montana and Washington had to include a Blaine provision in their initial constitutions as a condition for being granted statehood. Ultimately, 40 states either passed amendments to their current constitutions or included one in their respective original constitutions. Kansas is one of those states.
“No religious sect or sects shall control any part of the public educational funds.” – Article 6, Section 6 of the Kansas constitution.
The most egregious example of a state’s exclusive grip on education didn’t happen until the 20th century. In 1922 the voters of Oregon passed a Ku Klux Klan backed initiative called the Oregon Compulsory Education Act, which outlawed ANY private school, religious or other from even existing. Fortunately, the U.S. Supreme Court ruled the law unconstitutional before it took effect. In striking down the law, the Court said in reference to education “the child is not the mere creature of the State.”
Blaine amendments continue their powerful influence today
The irony – or perhaps hypocrisy – is that now, a century later, the public school system, which is supposed to be a bastion of acceptance, tolerance, and anti-discrimination, continues to justify their monopolistic stranglehold by relying on the bigotry entrenched in Blaine amendments. The effect is that it keeps students trapped in public schools that do not meet their needs. The education establishment continues the ruse of separation of church and state as a defense and fails to recognize the fundamental fact that education is supposed to be about the student, not the institution.
I have observed that the continuous barrage on every attempt to give students and families a shot at improving their lives by having educational choice has been led by voices of those who themselves attended private religious schools. I’m happy for them that they came from families who had the resources to choose what they considered a better education for their children. However, I find it a bit callous that they want to deny others the same shot at a better education solely because they lack the financial means to do so.
Are these people really so heartless? I don’t believe so. I think they have become mere cogs in the establishment that exists simply for the proliferation of the establishment. In other words, their lobbying efforts are just to get more money for the institution of public education. This has been painfully obvious during the debate and deliberation of the new school finance law in the Legislature.
Public money to religious organizations is not contrary to the Establishment Clause
The foundation of the separation of church and state concept is an artifact of the Colonies breaking away from England and its sectarian dominated monarchy. Simply put, the Establishment Clause of the first amendment forbids our government to be run by a religion. But that doesn’t mean that the government cannot (or does not) provide money, either directly or indirectly, to religious institutions. That includes education right here in Kansas. The Kansas Comprehensive Grant gives money to needy Kansas college students who attend any four-year college or university in the state. This includes religious schools such as MidAmerica Nazarene and Kansas Wesleyan, to name just two. The grants are funded with state taxpayer dollars. The federal government provides tens of millions of dollars each year through Pell grants that can be spent at private religious schools.
State dollars also go to religious based health care providers through the Medicaid program at the state level, and Medicare at the national level. There is no reason K-12 education should be allowed to lean on a contorted interpretation of the Establishment Clause to continue a monopolistic practice. Here’s the contortion. The concept of church/state separation assures individuals be protected from the unwanted authority of an entrenched institution. Through the application of Blaine amendments, that idea has been turned on its head. Now it’s the institution (public education) which seeks protection from the unwanted authority of individuals (students) to choose an education that best fits their needs. While the powerful public education establishment sees state money to religious schools as an existential institutional threat, KPI stands firm that education is supposed to be focused on the student, not the institution.
A decision on the Missouri case is due this month. Regardless of how the Court decides, the case has shined a much needed light on Blaine amendments, exposing them for what they really are. Hopefully, it will at least provide a precedent that can be cited to allow an easier way for those Kansas students who now have no choice, to no longer be “mere creatures of the State.”
 DeForrest, Mark Edward, “An Overview and Evaluation of State Blaine Amendments: Origins, Scope and First Amendment Concerns,” Harvard Journal of Law and Public Policy, Vol. 26, 2003, pp 552-626