Bench Memos

Law & the Courts

The Long History of Blaine Amendment Bigotry

Children attend a catholic school in Berlin, Germany, January 22, 2016. (Hannibal Hanschke/Reuters)

How many shades of bigoted can the Blaine amendments be? Best known for the anti-Catholic bigotry that animated their passage in the 1800s, the state Blaine amendments — laws designed to prevent the flow of state funds to religious schools — are less known for their racist heritage. The Supreme Court’s decision to examine these laws once more in the case of Espinoza v. Montana Department of Revenue offers the chance to take a closer look at the bias that underwrote these laws — a bias still impacting religious people and institutions and racial minorities today.

The Espinoza case involves a Montana school-choice tax-credit initiative. The state legislature passed a dollar-for-dollar tax credit for contributions to private scholarship programs. But the state’s tax office excluded religious schools from receiving program scholarships. The office and the state’s highest court point to a provision in the Montana constitution that broadly prohibits public funds “for any sectarian purpose or to aid any church, school, academy . . . controlled in whole or in part by any church, sect, or denomination.”

The Montana ban is not unique. Thirty-seven states have some form of “No-Aid” provisions. These state Blaine amendments invidiously exclude religious institutions from accessing generally available public benefits. The secularization of our public square probably leads many Americans to shrug off this kind of blatant religious discrimination. The nefarious history of these laws, however, is worth a second look.

The anti-Catholic origins of Blaine amendments are well-known. The influx of Catholic immigrants in the mid-1800s spawned everything from usage of slurs like “papist” and “mackerel snapper” to legal efforts to marginalize them, most especially their schools. U.S. public schools at the time were overwhelmingly and explicitly Protestant, and they didn’t want Catholic schools cutting into their turf by way of equal access to public funds.

When, in 1875, a federal Blaine amendment failed to pass, some states, including Alabama and Georgia, adopted what became as known as the “Little Blaines” or “State Blaine amendments.” As Reconstruction ended, some Southern states were compelled to provide public funds for the education of the children of former slaves as a condition of re-entering the Union. Blaine amendments provided a means for ensuring that black families would be unable to access public funds to send their children to Christian denominational schools started after the Civil War.

An amicus brief filed in the Espinoza case by the Georgia GOAL Scholarship Program traces how these “No-Aid” provisions were deployed against rural blacks. According to the brief, by virtue of Georgia’s Blaine amendment, state aid could not be used at the independent sectarian schools organized by black churches. Instead, black children were “shunted to grossly inadequate public schools and provided only a rudimentary industrial education to prepare them for lives of menial service rather than lives of learning, critical thinking, development and citizenship.”

Their timing was convenient. In Georgia, for example, lawmakers had long supported private Christian schools with government funds. “Once Georgia lawmakers decided it was necessary to provide a limited K-12 education to black, as well as white, children,” the brief asserts, “they developed a newfound concern over the ‘separation of church and state’. . . . In this way, they avoided any need to fund private K-12 schools created by African American religious leaders.”

Eventually, the Ku Klux Klan realized that Blaine amendments were an effective way to marginalize not just Catholics but also blacks and Jews. According to the U.S. Commission on Civil Rights, the Klan became one the “principle backers” of state Blaines, effectively lobbying nationwide for their passage, from Oregon to Maine.

The racist relics of their efforts persist today, only the minorities impacted have increased. In New Mexico, for example, activists tried to use the state’s Blaine to end a textbook lending program benefiting religious schools that served primarily Hispanic and Native-American students. Those students were seeking better educational alternatives, and the religious schools participating in the public textbook program boasted literacy and graduation rates that were vastly higher than kids in neighboring public schools. These religious schools were acting, as they so often do, as racial equalizers, offering low-cost or free education to minority students who would otherwise be trapped in terrible public schools.

A recent Harvard Kennedy School study shows growing support among black and Hispanic parents for alternatives to public schools — no doubt because, 65 years after Brown v. Board of Education, the Supreme Court’s decision ending the legal segregation of public schools, minority kids continue to get the short end of the stick from public education. Will the state Blaines continue to frustrate the futures of America’s minority children?

Born in anti-Catholic bigotry and nurtured by racial discrimination, Blaine amendments disproportionately hurt minority children. The Court in reviewing Espinoza can finally remedy 150 years of religious and racial discrimination and strengthen the educational opportunities available to our children — regardless of race, color, or creed.

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