REVIEW & OUTLOOK
The Blaine Game
The ACLU and its allies pick up the banner of the Know Nothings.
For sheer ugliness, few chapters rival the nativist movements and secret societies that ravaged American politics in the 19th century. So what does it say that the fight to keep the main legislative accomplishment of that era alive is being championed today by the National Education Association and the American Civil Liberties Union?
Last week the Supreme Court took up this issue, hearing oral arguments in Locke v. Davey. Ostensibly the case deals with the fate of a Washington state college student named Joshua Davey, who was stripped of a state scholarship he'd won when authorities learned he planned to use it to major in pastoral ministries.
But all sides understand that what's really at stake is the future of the so-called Blaine Amendment in the Washington constitution that provides the legal rationale for this discrimination--an amendment with roots in America's Know Nothing past. Altogether 37 state constitutions contain some form of this language, which is being used from Colorado to New York to challenge school choice initiatives.
The U.S. Supreme Court was supposed to have disposed of the question of tax dollars for religiously affiliated institutions in last year's Cleveland vouchers case, and that's half right. The Court did rule that vouchers do not violate the U.S. Constitution's Establishment Clause. The problem is that many state constitutions outlaw public money for "sectarian" schools. Though initially aimed at Catholic immigrants, these Blaine amendments today operate mostly to deny inner-city black and Latino kids a shot at a decent school.
Republican James G. Blaine, who narrowly lost the 1884 Presidential election, did not invent the amendments identified with his name. One of the first was passed in Massachusetts in 1854 when the Know Nothings captured the governorship and both houses of the legislature. But Blaine tapped into this anti-immigrant and anti-Catholic sentiment with a proposal to correct a "defect" in the federal Constitution. Though his Constitutional amendment failed by a handful of votes in Congress, parallel efforts at the state level were highly successful.
Part of the current confusion over these Blaine provisions has to do with language. Today we read "sectarian" as meaning religiously affiliated. But that's not how Blaine and his cohort read them. As the Becket Fund for Religious Liberty pointed out in a brief in the Mitchell v. Helms case involving federal aid for parochial schools, "sectarian" was code in those days for "Catholic." The publicly supported "common schools" of that era supported the "common" religion, which was a non-denominational Protestantism, and typically required readings from the King James Bible.
Four Supreme Court Justices (William Rehnquist, Clarence Thomas, Antonin Scalia and Anthony Kennedy) picked up on that in their plurality opinion in Mitchell, referring specifically to the "shameful pedigree" behind the Blaine provisions. "This doctrine," they wrote, "born of bigotry, should be buried now."
Locke gives the Supreme Court the chance to do just that. Though a federal district court initially sided with the state, even the infamous Ninth Circuit Court of Appeals could not stomach Washington's move to take a student's scholarship away from him simply because he wanted to study theology instead of, say, philosophy. And the list of organizations that have filed amicus briefs urging that the Court bury Blaine once and for all reflects a remarkably ecumenical coalition of libertarians, conservatives, blacks, Catholics, Evangelicals and Orthodox Jews--everyone from the Institute for Justice and the Landmark Legal Foundation to the Becket Fund and the Black Alliance for Educational Options.
On the other side, meanwhile, the NEA and ACLU fly the Blaine flag with help from the National School Boards Association, the Anti-Defamation League, and a group of scholars funded by Americans United for Separation of Church and State. In short, pretty much the same people who have been working overtime to ensure that poor American children stay trapped in failing public schools. And now they're placing all their chips on the Supreme Court deciding that the Know Nothings had it right after all.
