Tag Archives: blaine amendments

I misinterpret things my mom tells me to do all the time. Somehow “pick up your toys” sounds a lot like “go watch T.V.” when my favorite show is on. Those phrases are interchangeable to me. But, treating words that aren’t synonyms as interchangeable can have consequences–as I find out when my mom catches me watching Nickelodeon instead of doing my chores. In recent years, the meaning of sectarian has been conflated with the meaning of religious–especially in the debate surrounding Blaine Amendments. In his article in the Federalist Society Review, “Why Nineteenth Century Bans on ‘Sectarian’ Aid Are Facially Unconstitutional: New Evidence on Plain Meaning,” the Independence Institute’s constitutional jurisprudence expert Rob Natelson defines the critical difference between “sectarian” and “religious,” and the consequences this misinterpretation has led to in private school choice. Mr. Natelson’s article is comprised of three primary sections that support his claim: 1. Nineteenth Century Constitutional Provisions Show that “Sectarian” Had a Meaning Separate from “Religious” or “Denominational” This section focuses on the drafting of state constitutions and how the terms religious, denominational, and sectarian are used separately. Each has a distinguished meaning and are not used interchangeably in their respective clauses. 2. The Nineteenth […]

Just last week, the newly elected Douglas County school board voted to officially abolish the district’s innovative school voucher program. Consequently, the district will also be rescinding its involvement in the Supreme Court case that will determine the constitutionality of voucher programs here in Colorado. Ross Izard, the senior fellow of the Independence Institute Education Policy Center and a noteworthy supporter of the “choice” defendants of the DougCo case, wrote an affecting op-ed titled A suburban school board just set back educational opportunity for all Americans that was published in The Hill and describes the consequences of removing the groundbreaking voucher program from Douglas County. Douglas County’s voucher program has long been in the spotlight– the constitutionality of Blaine Amendments was originally questioned and brought to court in 2011. Since then it has been a divisive debate, especially so in this year’s school board election. Other events, such as the role Betsy DeVos in school choice, have additionally stoked the fire of the school voucher debate, putting the DougCo decision on a national stage. Following the results of the election, the union backed, anti-school choice board members have dictated the end of a unique program that had the potential to bring improved […]

This week is a big week in the world of education law. Today, the U.S. Supreme Court will take up its first case related to state constitutional Blaine clauses. We talked about these ugly little pieces of constitutional language in some detail last week when I highlighted the Independence Institute’s new paper, Blaine’s Shadow: Politics, Discrimination, and School Choice. Check out that paper if you need some historical background on Blaine clauses and what they mean for education today. Before you ask, the court isn’t considering the Dougco voucher case tomorrow. We’re still waiting to find out whether SCOTUS will hear that one. Instead, the high court will hear oral arguments in Trinity Lutheran v. Pauley, which deals with a Blaine-related case out of Missouri. We’ve talked about that case in passing over the year or so since I wrote about it in detail, but a refresher is probably in order. From my previous post: Here’s the skinny: Missouri runs a program under which organizations can apply to the state for grants. That’s not unusual. But here’s the trick: these “grants” do not come in the form of money. They come in the form of scrap rubber. That rubber is used […]

James G. Blaine. You’ve heard that name before, right? Of course you have. I’ve written about Congressman Blaine a number of times, usually in the context of Douglas County’s ongoing legal battle against so-called “Blaine Amendments” through its first-of-its-kind local voucher program. Or maybe I should say programs (plural), as the district’s other voucher program made things pretty complicated for a while before a debatable court decision and a new decision by the board put an end to most of the legal craziness. But while we’ve talked a fair amount about Blaine and the state constitutional clauses named after him, I’m not sure we’ve ever really known the full story. There’s a lot of important history and drama and politics buried behind the simple narrative that most folks just don’t know.  Ross Izard, my favorite policy nerd, set out to tell that story—and to explain why it matters from a constitutional perspective—in his most recent issue paper, Blaine’s Shadow: Politics, Discrimination, and School Choice. 

Just last week, we covered some Jeffco-tinted news about a student walkout/protest in Douglas County School District.  But those aren’t the only waves Dougco has made recently, or even the most important. No, the most exciting news to come out of the district is that the conservative board majority voted Tuesday to restart its local voucher program, the first of its kind in the nation. This time, however, those pesky religious schools will have to sit out—along with any of the kids who wanted to attend them. The new program, now called the School Choice Grant Program, explicitly prohibits religious schools from participating. It also revisits the old program’s contentious charter school funding mechanism (and funding amounts), though that’s a conversation for another day. For now, let’s focus on the religious aspect. Most of you already know about the original Choice Scholarship Program, so we won’t spend a lot of recounting all of the details. It’s been a while since we talked about the Dougco case’s legal slog in any detail, though, so I think it’s a good idea to pause and consider what’s going on here and what it means.

I would normally start a Monday morning post with a cheerful message. Nobody wants doom and gloom on the first day of the week. Unfortunately, today’s post will have to tackle a decidedly sadder and more concerning event: the surprising death over the weekend of U.S. Supreme Court Justice Antonin Scalia. For those who don’t follow the proceedings or makeup of the U.S. Supreme Court closely, Justice Scalia was an intellectual and legal titan. Appointed to SCOTUS by Ronald Reagan in 1986, he almost single-handedly led a “conservative revolution” on SCOTUS that has left an indelible imprint on the high court’s thinking and reasoning. A staunch believer in constitutional originalism, he supported the idea that the U.S. Constitution ought to be read in light of what it actually says, not interpreted through the warped lens of the political fads of any given administration or era (imagine that). In many ways, one could argue that it was Scalia who brought the intellectual firepower needed to push constitutional originalism into the mainstream. His ideas, critiques, and arguments will echo for decades to come, and have forever changed the conversation surrounding constitutional law in America. One day 100 years from now, long after […]

Yesterday, we talked Dougco. Because I’m a fan of loosely connected thematic writing, we’re going to do the same today in a more peripheral sense. Don’t worry, today’s post will include markedly less discussion about the nether regions of the male body. Some of you may remember that there was a pretty important—and pretty disappointing—Colorado Supreme Court decision about Dougco’s local voucher program last June. The program was struck down under an incredibly broad interpretation of our state’s Blaine Amendment. The decision was so sweeping, in fact, that Justice Allison Eid had this to say about it in a dissenting opinion: Today, the plurality interprets Article IX, Section 7 as prohibiting the expenditure of any state funds that might incidentally or indirectly benefit a religious school. This breathtakingly broad interpretation would invalidate not only the Choice Scholarship Program (“CSP”), but numerous other state programs that provide funds to students and their parents who in turn decide to use the funds to attend religious schools in Colorado. The plurality’s interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to such schools, as the schools, in the words […]

By now, my faithful readers should be familiar with Douglas County School District’s embattled first-of-its-kind local voucher program, the Choice Scholarship Program (CSP). I was super excited about an amicus brief written by my friends at the Friedman Foundation and the Independence Institute way back in August of last year, and could barely contain myself during oral arguments before the Colorado Supreme Court last December. It’s been a very, very long wait since then. That wait is now over, though the news is both good and bad. The bad news is that while the court did decide that the plaintiffs lacked the standing to bring a taxpayer suit under the School Finance Act, it also ruled that the CSP is unconstitutional under Article IX, Section 7 of the Colorado Constitution. That section, frequently called a Blaine Amendment, ostensibly prohibits the state from providing direct aid to religious institutions, including religious private schools. However, other high court rulings have found that vouchers are designed to provide aid to students, not to the religious institutions themselves. I’ll spare you the legal citations (you know how I feel about legalese) and let my big policy friends do the detailed analysis. Cato’s Jason Bedrick and […]