"Whoever digs a pit will fall into it, and a stone will come back on him who starts it rolling."
That slapstick humor from the book of Proverbs has rarely been better illustrated than in the current drive for school choice. Pro-voucher Protestants excited by the Supreme Court's late-June green light have now run into stop signs placed in state constitutions by some of their ancestors a century or so ago.
Those stop signs are called Blaine Amendments, and 37 of the 50 states have them. Delaware's is typical: No state money "shall be appropriated to, or used by, or in aid of any sectarian, church, or denominational school." But it's the story behind those amendments that could make all the difference in a U.S. Supreme Court analysis of the constitutionality of these provisions.
Most cover stories in WORLD have what journalists call a "face" and a "nut graf." The face is usually a person who can add human interest to what otherwise might be a dry story. The "nut graf" in one paragraph gives the essence of the tale. This story is unusual in that the "face" is a man who died over a century ago, House Speaker (and presidential candidate) James G. Blaine. The nut graf can be one sentence: The state constitutional roadblocks that educational choice now faces grew out of anti-Catholic bigotry, anti-Southern politics, and the myth of educational neutrality.
Voucher proponents over the coming months will be emphasizing the role of anti-Catholic bigotry in the passage of Blaine Amendments, and it was a central one. But the other elements were important too, and we'll attempt to look at all of them.
WHEN JAMES G. BLAINE died in 1893, the great orator Chauncey Depew predicted that "his name will rank with Lincoln's." The Washington Evening News stated, "He has carved his name on the rock of enduring fame, where it will remain when the waves of countless years have rolled against it and receded from it." But 40 years later Blaine biographer Charles Russell gave an accurate summation: "No man in our annals has filled so large a space and left it so empty."
Blaine, born in Pennsylvania in 1830 to a loosely Presbyterian father and a Catholic mother, was brought up as a secularist. He moved to Maine in 1854 and edited newspapers in Kennebec and Portland before gaining election to Congress in 1862. As biographer Edward Stanwood put it, "A facile pen, a wonderful memory, a tendency to intellectual combativeness, and a social disposition" underlay his success both in journalism and politics. In 1868 Blaine became Speaker of the House of Representatives, and by the autumn of 1875 seemed the likely successor to President Ulysses S. Grant.
As the leaves fell in Washington, though, Blaine and other Republican strategists saw that he and the GOP had some problems. The 1874 elections had produced a Democratic majority in the House of Representatives for the first time since the Civil War, in part because wartime tensions had diminished while concern about GOP connections to big business scandals had increased. Republicans such as Senators Oliver Morton of Indiana and John Sherman of Ohio, along with Wisconsin Governor C.C. Washburn, looked for ways to re-energize the Northern Protestants who formed the Republican base.
Probable candidate Blaine himself had some weaknesses along those lines. Some Protestant voters were nervous about his semi-Catholic ancestry and the charges of corruption that dogged him. Blaine issued a statement emphasizing six generations of Protestant ancestors (on his father's side) and noting that he attended church regularly. But what about an issue that could drive a wedge into the Democrats and excite many Republicans?
Then, as now, most parents were deeply concerned about the education of their children. Education in America had traditionally been in the hands of private, often church-led schools paid for by parents, with scholarships provided to needy students. But since the 1840s tax-supported government schools had spread throughout the Northern states. The intellectual leader of the movement was Horace Mann, a Unitarian who had overcome opposition from some Northern Protestants by assuring them that the new, secularized public schools could still include daily reading from the King James Bible and generic moral instruction.
That would not have been enough to clinch Mann's victory but for concern among many Protestants about the growing number of Catholic immigrants, largely from Ireland. Opposition to such immigration, and concern that children going to Catholic schools would grow up to oppose American liberty, led to riots in the 1840s and 1850s, including one in Philadelphia in 1844 that resulted in 13 deaths and the burning down of a Catholic church.
Some writers wanted to stop all immigration, but others looked to public schools to save America. An article in The Massachusetts Teacher in 1851 stated that children of immigrants "must be taught as our own children are taught. We say must be, because in many cases this can only be accomplished by coercion.... The children must be gathered up and forced into school, and those who resist or impede this plan, whether parents or priests, must be held accountable and punished."
The Civil War brought out in the North an emphasis on sacrificing individual rights to preserve the Union, and that carried over into the educational debate. Andrew Coulson's book Market Education quotes a statement from California's education superintendent that children should be taught to consider teachers as "superior to the parent in point of authority." The Wisconsin Teachers' Association declared in 1865 that "children are the property of the state." The National Teachers' Association (precursor to the National Education Association) in 1866 published claims that "the duties which a citizen owes to the government are prior to any personal or individual claims."
Some biblical Protestants in the North still put theological duties first and emphasized parental responsibility for educating children, but they were outnumbered. Blaine represented well a generation that embraced a myth of educational neutrality, the idea that school subjects could be taught without any reference to God. By the 1870s the only section of the country where governmental authority over schooling received sharp, popular attack was the South, and that also played into the thinking of GOP strategists.
R.L. Dabney, a theologian who had been Stonewall Jackson's adjutant-general and would go on to help found the University of Texas, engaged in a press debate with Virginia's new superintendent of schools in 1876. Dabney argued that "if secular education is to be made consistently and honestly non-Christian, then all its more important branches must be omitted, or they must submit to a mutilation and falsification, far worse than absolute omission. It is hard to conceive how a teacher is to keep his covenant faithfully with the State so as to teach history, cosmogony, psychology, ethics, the laws of nations, as to insinuate nothing favorable or unfavorable touching the preferred beliefs of either the evangelical Christians, Papists, Socinians, Deists, Pantheists, Materialists, or Fetish worshippers, who claim equal rights under American institutions. His pedagogics must indeed be 'the play of Hamlet, with the part of Hamlet omitted.'" (For more of Dabney, see p. 32.)
But Blaine and other Northern Republican leaders were not listening or did not care. Blaine perceived an opportunity to hit both Catholics and Southern whites, two groups largely lost to the GOP anyway, and win crucial support among Northern advocates of a bland Protestantism. He gained the support of President Grant, who had only a superficial knowledge of Scripture but hated Catholicism, which Grant called a center of "superstition, ambition and ignorance." The president on Dec. 7, 1875, proposed a Constitutional amendment that would require states to establish government-funded schools, forbid those schools to teach any religious tenets, and prohibit any government funds from going to religious schools.
Blaine introduced such an amendment the following week. Vermont Senator Justin Morrill wrote, "The Catholics will rave, but I suppose there is not one who ever voted for free-men, free-schools, or the Republican party in war or peace." Ohio Senator Sherman crowed that "the Priests from the Pope down have been so foolish as to assail our common schools. Their position is untenable." An April, 1956, issue of The Catholic Historical Review cites many other examples of anti-Catholic sentiment surrounding the legislative debate.
What became known as the Blaine Amendment easily passed the House of Representatives in 1876 by a 180-7 vote, but 98 congressmen abstained. That prefigured a more contentious Senate debate involving the issue of whether the amendment gave the federal government too much power over the states. The Nation, then a new political magazine, favored Blaine's measure but in March, 1876, predicted that it would fail and speculated that Blaine did not care: "All that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes."
Blaine's popularity in the House also did not carry over to the Senate, where senators such as William Wallace Eaton of Connecticut showed little desire to further an "election dodge.... This whole business originated with the Hon. James G. Blaine.... It was one of his dodges to get a nomination." And Blaine surprisingly did not get that nomination. Concerned with charges that Blaine had accepted bribes-"Blaine, Blaine, continental liar from the state of Maine" has gone down in political history as one of the most effective negative campaign chants ever-the GOP convention chose "clean" Rutherford Hayes by a slight majority. The Senate then turned down the Blaine Amendment by four votes.
But that did not end the matter. Blaine remained a prominent GOP leader for the next 16 years and served twice as Secretary of State. He became his party's presidential nominee in 1884, only to lose narrowly to what one of his supporters called the party of "Rum, Romanism, and Rebellion." And other Blaine supporters kept alive his bigotry and political strategy by placing "Blaine Amendments" in state constitutions. Many Northern states did so voluntarily, and Congress often required Western territories joining the union to enact such articles. Some Southern states, animated by anti-Catholicism and losing the Dabney vision, joined in at various times.
The Becket Foundation for Religious Liberty has detailed the history of many Blaine Amendments and reported recent judicial interpretations of them. The Ohio Supreme Court ruled that the Cleveland voucher plan did not violate Section 2, Article VI of the Ohio constitution, which states that "no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state," because through the voucher program school funds would reach such "sects" only through the "independent decisions of parents and students."
The Wisconsin Supreme Court concluded in Jackson vs. Benson that the Milwaukee school-choice plan did not violate that state's Blaine Amendment, which stipulates, "nor shall any money be drawn from the treasury for the benefit of religious societies, or religious and theological seminaries." The Court ruled that the phrase "for the benefit of" should be construed strictly and did not apply to incidental benefits.
Texas' Blaine Amendment is also vulnerable, according to a footnote in the Texas Supreme Court's 1995 decision in Edgewood Independent School District vs. Meno. Then-Justice John Cornyn-now the Attorney General of Texas and a candidate for the U.S. Senate-wrote that the Texas constitution does not require education for the public to be provided solely by a state agency: "As long as the Legislature establishes a suitable regime that provides for a general diffusion of knowledge, the Legislature may decide whether the regime should be administered by a state agency, by the [school] districts themselves, or by any other means."
Arizona's Supreme Court in 1999 examined that state's educational tax-credit law in light of Article 2, section 12 of the Arizona constitution: "No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment." The court in Kotterman vs. Killian upheld the tax credit, noting that no money "ever enters the state's control as a result of this tax credit.... Thus, under any common understanding of the words, we are not here dealing with 'public money.'" The Arizona court also noted that Blaine Amendments were a "clear manifestation of religious bigotry ... we would be hard pressed to divorce the amendment's language from the insidious discriminatory intent that prompted it."
Courts in other states with Blaine Amendments may also be deciding whether to construe them narrowly, construe them broadly but attack their constitutionality, or uphold them by kicking out any religious programs using money from state coffers. Missouri, for example, has a very thorough Blaine Amendment that forbids any government body ever to "pay from any public fund whatever, anything" that would "sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever." If a Missouri legislature were inclined to support school choice, it might be wise to follow the tax-credit route, whereby money that sustains the schools parents choose never gets into a public fund.
Of course, all these considerations may become moot if the U.S. Supreme Court gets involved in reviewing Blaine Amendments. That became more probable last month when a panel of the 9th U.S. Circuit Court of Appeals said that the State of Washington's Blaine Amendment action-denying a state scholarship to Joshua Davey, who intended to use it to study to be a pastor-violated the student's First Amendment right to the free exercise of religion.
Recent Supreme Court precedents-including Rosenberger vs. University of Virginia and Good News Club vs. Milford-have not supported government actions that discriminate against religious practices and institutions. So the Supreme Court may very well disavow the Blaine Amendments directly, or bury them along the lines of the majority opinion authored by Chief Justice William H. Rehnquist two months ago in Zelman vs. Simmons-Harris: "The Ohio program is entirely neutral with respect to religion (and permits) genuine choice among options public and private, secular and religious." When aid is given to parents, not directly to schools, it is directly supporting parental choice, and only indirectly the school that the parents choose.
And perhaps Justice Clarence Thomas will write the majority decision, for he has forcefully noted that "nothing in the establishment clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs." Joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy in Mitchell vs. Helms (2000), Mr. Thomas referred to the Blaine Amendments by noting, "Hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow." He emphasized that "this doctrine, born of bigotry, should be buried now."