Are Blaine Amendments Now Dead?

[Apep 645]

Today SCOTUS released Espinoza v. Montana Dept. of Rev., which holds that Montana's Supreme Court could not invalidate an entire tax credit aid program on the basis of a no aid to sectarian school provision. If the ministerial exceptions to Title VII hold up, do we see broad legislative support for private school vouchers in parts of the country?

[crash_davis 23465]

can you cliff notes for those of us who are unversed in this and too lazy to google?

[Apep 645]

I don't want to provide cliff notes, because this thread could get cloaked very easily.

Blaine amendments are a relic of 19th century anti-Catholic bias. They are state constitutional provisions that forbid the funding of sectarian schools. Today the Supreme Court basically held that they are unconstitutional in most situations. IF a state decides to subsidize private schools, it must also subsidize religious private schools unless they are seminaries or the like. Title VII deals with anti-discrimination provisions. Right now there are a couple of cases from California involving age discrimination and disability discrimination claims by teachers at religious schools. There is a "ministerial exception" to Title VII. The question is how broad is it? If these teachers are considered ministerial or the holding is broad, religious schools largely won't be subject to Title VII. If states can fund religious private schools via vouchers and can discriminate against otherwise protected classes, public school might be mostly dead in large parts of the country.

[crash_davis 23465]

So we're going to become even more polar in our education and learnings? Like public money going towards teaching that the Earth is only 6000 years old? That would be crazy.

But then I just read that Churches, which pay no taxes, were possibly given Covid federal relief monies (you know, tax money).

 

The US is a fucking banana republic with a fake Gucci belt.

[RPM 26566]

Barry Goldwater is hitting 9,000 RPM in his grave.

[bolverk 30246]

How about we just refrain from giving any public money to any private school?

[TwiceHorn 31996]

52 minutes ago, Apep said:

Today SCOTUS released Espinoza v. Montana Dept. of Rev., which holds that Montana's Supreme Court could not invalidate an entire tax credit aid program on the basis of a no aid to sectarian school provision. If the ministerial exceptions to Title VII hold up, do we see broad legislative support for private school vouchers in parts of the country?

This is a First Amendment case.  Not a TItle VII case.  I suppose one could leak into another, but they are doctrinally separate.

I don't see this as a particularly controversial ruling.  The fact that Blaine Amendments stayed on the books for a century is remarkable.

The first question, and the bigger one, is why are state governments giving money to private schools, at all?  Once you answer that question satisfactorily, forbidding it from sectarian schools is pretty obviously based only on hatred or dislike of religiously affiliated organizations.

The biggest legal problem I see is that because this is discrimination or unequal treatment based on religion, and implicates the First Amendment, strict scrutiny applies.  Which means the rule is constitutional only if the state can advance a compelling interest behind the rule.  Well, the statutes were clearly enacted specifically to deprive Catholic schools from funding, which is exactly NOT a compelling state interest, but in fact an unlawful one.  Did it somehow become compelling over the last century?  I mean, I'm all for discrimination against certain types of evangelicals, but I don't think it's good government policy.

Edited June 30, 2020 by TwiceHorn

[TwiceHorn 31996]

4 minutes ago, bolverk said:

How about we just refrain from giving any public money to any private school?

Exactly.  That's kind of the whole idea of the "private" school.

[TwiceHorn 31996]

41 minutes ago, Apep said:

I don't want to provide cliff notes, because this thread could get cloaked very easily.

Blaine amendments are a relic of 19th century anti-Catholic bias. They are state constitutional provisions that forbid the funding of sectarian schools. Today the Supreme Court basically held that they are unconstitutional in most situations. IF a state decides to subsidize private schools, it must also subsidize religious private schools unless they are seminaries or the like. Title VII deals with anti-discrimination provisions. Right now there are a couple of cases from California involving age discrimination and disability discrimination claims by teachers at religious schools. There is a "ministerial exception" to Title VII. The question is how broad is it? If these teachers are considered ministerial or the holding is broad, religious schools largely won't be subject to Title VII. If states can fund religious private schools via vouchers and can discriminate against otherwise protected classes, public school might be mostly dead in large parts of the country.

On further reflection I can kind of see your issue.  But it would appear that the ministerial exception only would affect the employment of teacher types if they perform a pastoral function.  I don't see it as opening the door to a private school discriminating against students.

[TwiceHorn 31996]

I guess the reason Blaine Amendments stayed on the books so long is that state governments rarely tried to give money or benefits to private schools until recently.  So there was no basis for a challenge.

[Apep 645]

1 hour ago, TwiceHorn said:

This is a First Amendment case.  Not a TItle VII case.  I suppose one could leak into another, but they are doctrinally separate.

 

There are two Title VII "ministerial exception" cases that will be decided later this week. Being able to fire parochial teachers without Title VII oversight, (if that is how it comes down), and getting state funding would change education in unforeseen and major ways.

[TwiceHorn 31996]

1 hour ago, Apep said:

There are two Title VII "ministerial exception" cases that will be decided later this week. Being able to fire parochial teachers without Title VII oversight, (if that is how it comes down), and getting state funding would change education in unforeseen and major ways.

As noted subsequently, I can see your point.  I don't really see even this Court expanding the "ministerial exception" to teachers in religious schools.  

However, I think the net effect of this decision is going to be fewer schemes to provide public funds to private schools.

[DanRydell 799]

4 hours ago, TwiceHorn said:

This is a First Amendment case.  Not a TItle VII case.  I suppose one could leak into another, but they are doctrinally separate.

I don't see this as a particularly controversial ruling.  The fact that Blaine Amendments stayed on the books for a century is remarkable.

The first question, and the bigger one, is why are state governments giving money to private schools, at all?  Once you answer that question satisfactorily, forbidding it from sectarian schools is pretty obviously based only on hatred or dislike of religiously affiliated organizations.

The biggest legal problem I see is that because this is discrimination or unequal treatment based on religion, and implicates the First Amendment, strict scrutiny applies.  Which means the rule is constitutional only if the state can advance a compelling interest behind the rule.  Well, the statutes were clearly enacted specifically to deprive Catholic schools from funding, which is exactly NOT a compelling state interest, but in fact an unlawful one.  Did it somehow become compelling over the last century?  I mean, I'm all for discrimination against certain types of evangelicals, but I don't think it's good government policy.

I certainly don't dispute that most, if not all, Blaine Amendments arose out of anti-Catholic sentiment. But one doesn't have to have a hatred or dislike of religiously affiliated organizations to think they shouldn't receive public money. That's fucking nonsense. Separation of church and state is intended to protect the independence of churches as much, if not moreso, than protecting the state from religious influence.

Edited June 30, 2020 by DanRydell

[TwiceHorn 31996]

3 hours ago, DanRydell said:

I certainly don't dispute that most, if not all, Blaine Amendments arose out of anti-Catholic sentiment. But one doesn't have to have a hatred or dislike of religiously affiliated organizations to think they shouldn't receive public money. That's fucking nonsense. Separation of church and state is intended to protect the independence of churches as much, if not moreso, than protecting the state from religious influence.

It's not giving money to a church directly.  It's giving money to church schools, when it gives money to other schools similarly situated, but not religious.

I believe you could have a rule that said we'll give money to private schools, including church schools, as long as the church doesn't get any of it.  But if you're saying all private schools get money, you can't carve out an exception for church schools.

I should make clear that I am operating from the position that giving state money to church schools does not violate the Establishment Clause, which goes back nearly 30 years, at least and is a different question than that presented by this case.

As a general proposition, discrimination between religious and non-religious institutions is going to require a compelling state interest and a narrowly tailored discrimination.  You can't just incant "separation of church and state."

Edited July 1, 2020 by TwiceHorn

[TwiceHorn 31996]

Also, the legislative history of the Blaine Amendments and trying to justify them today is oddly reminiscent of Trump Administration rulemaking.

"Well, we had this horrible, unlawful thing in mind when we did it, but we've come up with all these other good and lawful reasons since then!"

[Wulaw Horn 19561]

On 6/30/2020 at 9:30 PM, TwiceHorn said:

Also, the legislative history of the Blaine Amendments and trying to justify them today is oddly reminiscent of Trump Administration rulemaking.

"Well, we had this horrible, unlawful thing in mind when we did it, but we've come up with all these other good and lawful reasons since then!"

I wish that I didn’t have to laugh at that/believe that this is actually what comes up when legal gets involved but

sadly lots of that shot reads exactly this way.