COLUMN -- School Vouchers: Constitutionality is a false issue

Wednesday February 23, 2005


Two philosophical issues define the battle over the educational access grant legislation proposed by Sen. David Hann, R-Eden Prairie, and Rep. Mark Buesgens, R-Jordan. The legislation would grant low-income families in St. Paul and Minneapolis up to $4,600 in tuition aid at accredited private schools, including church-affiliated schools.

The first is the nature of "public" education, discussed in last week's column; the second is constitutionality of access grants used at religious schools.

Debating Hann on MPR Feb. 9, Sen. Steve Kelly, DFL-Hopkins, chairman of the Senate Education Committee, confused the constitutionality issue with a lack of legal and historical knowledge.

Responding to Hann's position that the bill would pass constitutional muster, Kelly argued that the Minnesota Constitution expressly prohibits state funds from flowing to religious schools. Referring to a provision that requires parents to endorse state checks payable to private schools, Kelly gratuitously accused Hann and Buesgens of a scheme to "engage parents in money laundering," funneling state money to religious schools.

Article 13, Section 2 of the Minnesota Constitution, titled "Prohibition as to aiding sectarian schools," reads: "In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught."

To Kelly that clause rules out the use of vouchers at religious schools; however, neither history nor law is on his side.

The prohibition clause was not in the original Minnesota Constitution. It was added in 1877 as part of the wave of so-called "Blaine Amendments," named for Maine Rep. James G. Blaine. Blaine was a member of the radical Republican movement, which in post-Civil War America held a majority in many state legislatures, including in Minnesota.

Blaine Amendments were a direct result of the nativist, anti-Catholic bigotry, which was a recurring theme in American politics during the 19th and early 20th centuries. With the presidency in mind, Blaine attempted to ride anti-Catholic sentiment by amending the U.S. Constitution to prohibit direct public aid to Catholic schools.

That attempt failed, but over the next 15 years prohibition of aid to "sectarian" schools was imbedded in 29 state constitutions, including Minnesota's.

However, Blaine Amendments are not just simple bigotry. They have a precise legal foundation.

"The plain language of Blaine Amendments is not targeted at voucher programs," states Richard Komer, a senior attorney at the Institute for Justice, a public interest law firm. "Blaine Amendments were a response to Catholic schools seeking direct aid on an equal footing with public schools, which in the reality of the times were de facto 'Protestant' schools."

Only in relatively modern times has public education donned the mantle of "secular" education. Until the 20th century, when courts began extending the U.S. Bill of Rights to the states under the 14th Amendment, state support for openly religious but nondenominational schools was not uncommon.

The great "common school" movement of the progressive era was overtly religious. Its purpose was creating the virtuous citizens needed to maintain a republic, and "virtue" meant instilling religion — specifically a "non-sectarian" generic version of Protestantism.

The "melting pot" metaphor in practice was attempted conversion to Protestantism of European Catholic immigrants. The tool was public education. Catholics rebelled. As taxpayers, they wanted equal aid for a Catholic school system.

"Blaine amendments address the question of direct public aid," said Komer. "Not vouchers. A voucher is not direct aid for a religious school. Parents use it to purchase education for a specific child. That is not aid; that is an exchange of value."

The distinction is important. Parents seeking educational opportunities for their children are not, as Kelly insultingly contends, co-conspirators in a money-laundering scheme. Parents purchase education from schools of their choosing. The state provides funds to families, not aid to "sects." Parental choice breaks the direct link between state and church.

Article 13, Section 2 of the Minnesota Constitution was born in bigotry; further, in plain language that requires no judicial sleight-of-hand, it legally prohibits only direct state aid to religious schools and is legally irrelevant to the question of vouchers. Courts have so ruled in Wisconsin and Ohio. Constitutionality of the Hann-Buesgens bill is not an issue. At best, it is a red herring; at worst it has a dead fish odor of ripening bigotry.

MEA CULPA: I've been spelling Senator Kelley's name incorrectly, dropping the second "e." Apologies.