Although school choice advocates in Washington state did not achieve their goal of getting a favorable judicial ruling on a restrictive amendment, they were victorious last week when the state changed its regulations to allow religious schools to use federal funds for special needs education.
Like other states, Washington receives funds from the federal Individuals with Disabilities Education Act (IDEA), which requires states to spend part of the funds on private-schooled children. But unlike other states, Washington's superintendent of Public Instruction did not permit the children's parents to use the funds at religious private schools.
The state did not allow families with special needs kids at religious schools to use IDEA funds to buy even a hearing aid or a computer. Michael DeBoom, an eighth-grader with attention deficit disorder and motor skills problems, qualified for special education services, including a special laptop computer to help him take notes in class. But because he chose to attend Lynden Christian School, the school district was not allowed to use IDEA funds to buy it for him-or even buy the software for it. Rachael Apodaca, an eighth-grader with Down syndrome, had to leave Lynden Christian School because the state would not pay for a paraeducator there. Skyler Hamilton suffered from brain cancer that left him with short-term memory loss, loss of the use of his right side, and impaired coordination. Because Lynden Christian School could not use state funds, he had to travel back and forth between a public school and LCS each week.
In November 2008, the Institute for Justice sued the state for religious discrimination on behalf of these families, hoping for a judicial decision that would favorably interpret the state constitution's Blaine Amendment, which forbids public funds going to religious education. Lead attorney Michael Bindas said they were looking for "a very clear judicial decision that government may not rely on Blaine amendments to effect this kind of discrimination"
The Blaine Amendment comes up frequently in cases of school choice. It appears in 37 state constitutions and is a product of the 1800s when public education was essentially Protestant education and anti-Catholic sentiments were high. The amendments targeted Catholic education in particular, and congressmen required states to tack the amendment onto their constitutions before entering the United States of America.
At first, school choice opponents argued that programs like vouchers are unconstitutional under the first amendment, but once the U.S. Supreme Court put that argument to rest in Zelman v. Simmons-Harris, school choice opponents have turned to the Blaine amendment, "an unfortunate relic of 19th century anti-religious bigotry," said Bindas.
For instance, according to the Washington Supreme Court, because of the Blaine amendment a blind student can't use vocational rehabilitation funds to go to seminary. A program that provides textbook and tuition assistance grants for needy students can't help them if they go to private schools. Students from private schools can't even ride public school buses.
Institute for Justice is executing a broader strategy to get favorable judicial rulings on Blaine amendments nationwide. Attorneys did not achieve their goal of getting a judicial decision on the Blaine amendment in Washington since the state changed the regulations instead of completing the lawsuit, but Bindas claimed the regulation change as a success for special needs kids in the state and for "educational liberty."