Washington Policy Center: U.S. Supreme Court anti-discrimination ruling means the end of Washington state’s notorious Blaine Amendment

Last June, the U.S. Supreme Court ruled 6-3 in Carson v. Makin that state officials cannot discriminate against families who choose to use generally available public tuition assistance programs to send their children to private religious schools. This and similar cases in effect have repealed Washington state’s notorious Blaine Amendments, a measure adopted in the 1880s to ban public assistance to private “sectarian” schools, primarily targeting Catholic schools.

Now that the U.S. Supreme Court has ended state policies that discriminate against parent-directed aid for private schools, states with programs that offer families general public aid cannot use the Blaine Amendments to deny families access to private religious schools.

Legal commentators summarize this line of cases as follows: “Over the years, the Supreme Court has gradually moved from the principle of ‘no aid’ to religion to one of ‘neutrality,’ which permits aid, provided it is available to a wide range of recipients, not just religious ones.”

In Carson v. Makin, the U.S. Supreme Court effectively struck down the Blaine Amendments in 36 state constitutions, including Washington. The case involved Maine’s high school tuition assistance program, a long-standing state policy which gives families public money to pay the cost of private school when a public high school is not available in the area.

The Carson and Nelson families sued the state when Maine officials prevented them from using this state-funded program to send their children to private religious schools. Officials would allow the families to send state education funding to a private, nonreligious school, however, setting up the clear anti-religious discrimination the court considered in the case.

The Supreme Court ruled in favor of the families. Chief Justice Roberts wrote in his opinion, “… we have repeatedly held that a state violates the Free Exercise Clause [to the U.S. Constitution] when it excludes religious observers from otherwise available public benefits.”

The Free Exercise Clause of the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” As explained in Carson, the First Amendment requires education officials in Maine to be neutral regarding religion, neither favoring nor discriminating against parents who may select religious schools.

Roberts also explained in Carson that the First Amendment prohibits Congress from making laws “respecting an establishment of religion.” Carson does not involve the state establishing religion because in Zelman v. Simmons-Harris (2002) the Supreme Court said Ohio’s voucher program does not violate the establishment clause because religious schools in Ohio receive this funding through the individual choices of families, and not at the direction of the state. Ohio parents are free to choose nonreligious private schools as well, indicating the voucher program is not an “establishment” of religion created by the state.

In Washington state powerful special interests in the public schools have long argued the state’s Blaine Amendments bar lawmakers from introducing education choice bills offering families public support to send their children to private school.

The U.S. Supreme Court has now made it crystal clear this position violates basic civil rights. Lawmakers no longer need to amend the state constitution to create a popular school choice program.

Lawmakers in Washington state are now free to debate choice bills like the four bills introduced during the 2022 legislative session. These bills would have given families who want options up to $10,000 to send their children to private school. If the state Legislature were to pass these bills, private religious schools must be included the list of possible options families have to educate their children. With the ending of the Blaine Amendments, anti-religious discrimination by state officials is no longer permitted. You can learn more about how Education Savings Accounts work at fundstudentsfirst.com.

Programs like these would further the state’s paramount constitutional duty “to make ample provision” for the education of every child living within its borders.

Liv Finne is director of the Washington Policy Center’s Center for Education. Finne holds a law degree from Boston University School of Law and a Bachelor of Arts degree from Wellesley College. She left civil litigation practice to raise two children and work as business partner for a small business she owns with her husband. Finne and her husband live in Seattle. Members of the Cowles family, owners of The Spokesman-Review, have previously hosted fundraisers for the Washington Policy Center and sit on the organization’s board.