School Choice Roadblocks: Blaine Amendments

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School choice policies, whether vouchers, education savings accounts or charter schools, open doors for children and families across the country, allowing families stuck in poor school districts to send their children to better schools. Unfortunately, enacting choice policies is not as simple as it sounds.

Writing in National Affairs, Jason Bedrick, education policy analyst at the Cato Institute, and Lindsey Burke, fellow at the Heritage Foundation, explain one of the biggest obstacles to school choice: Blaine amendments.

State constitutions vary, but most include limits on a state’s ability to use taxpayer dollars to fund religious schools. These “Blaine amendments” — named after a former senator from Maine — were first enacted in the nineteenth century to prevent Catholic schools from receiving public funds. Today, opponents of school choice have used them to file legal challenges against school choice programs.

How do choice programs fare against Blaine amendment challenges? Vouchers have struggled in some states, with courts deeming voucher funds to be an appropriation of taxpayer money to religious schools. However, according to Bedrick and Burke, scholarship tax credit programs have survived all Blaine amendment challenges. Tax credit programs allow taxpayers to make donations to nonprofit scholarship organizations which fund scholarships for public school children. Those children can use the funds to attend a school of their choice while taxpayers receive credits for their donations. When opponents of Arizona’s scholarship tax credit program challenged under the state’s Blaine amendments, the Arizona Supreme Court ruled in favor of the program, reasoning that no public money was involved, as taxpayer dollars never entered the state treasury.

What about education savings accounts (ESAs), the latest school choice development? ESAs put funds into special bank accounts, allowing parents to withdraw funds and use them for all manner of educational programs and services, from tuition to textbooks to tutoring. Just two states — Arizona and Florida — have enacted ESAs so far. Bedrick and Burke say it’s not clear how courts will approach the ESA model but note that one Arizona Supreme Court upheld ESAs after a constitutional challenge in 2014.

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