BOSTON — Parents who want to send their children to private religious schools in Massachusetts and many other states are barred from using public funds to offset tuition.
Advocates for expanded school choice programs say so-called Blaine amendments, which were written amid anti-Catholic fervor in the late 1800s, prohibit families from using public vouchers or tax credits to help pay for parochial schools in 38 states, including Massachusetts.
This week, a Boston-based think tank signed onto a Montana lawsuit challenging those restrictions and asking the U.S. Supreme Court to intervene.
In a court filing, the Pioneer Institute argues the restrictions were "motivated by religious animus, and should be held to be in violation of the First and 14th Amendments."
"[These] amendments across the country have inflicted significant harms on religious individuals and immigrants for well over a century," the petition reads. "We urge this court to clarify, as it has done so many times in the past, that religious antagonism is antithetical to the constitutional scheme of the United States."
The lawsuit was filed on behalf of Kendra Espinoza, a single mother who sought to send her two daughters to a Catholic school in Montana but couldn't afford it.
A state school choice program created under Gov. Steve Bullock, a Democrat, allowed for a tax credit to fund scholarships for students to attend private religious schools. But the state's Department of Revenue enacted a rule to prevent parents from using the scholarship for religious schools.
Espinoza and others sued last year. The state’s high court struck down the program, citing the state's Blaine amendment.
"Kendra Espinoza, like so many other parents, sought the education that best suits the needs of her children," said Jim Stergios, Pioneer's executive director. "It is hard to believe that an amendment steeped in anti-Catholic bias still stands in her way 130 years after its passage."
Massachusetts was the first of 38 states to adopt Blaine amendments, championed by the anti-Catholic Know-Nothing Party, which came to power in state elections of 1854. The amendments' namesake was U.S. House Speaker James Blaine, a Maine congressman who in 1875 led an effort to amend the U.S. Constitution to ban public funding for Catholic schools.
Blaine's bid to change the U.S. Constitution ultimately failed, but dozens of states enacted their own restrictions banning the use of public money for parochial schools.
Pioneer has long been a vocal critic of the restrictions, backing state legislation to repeal the Blaine amendment and even leading a campaign to remove a portrait of Know-Nothing Gov. Henry Gardner, who served from 1855 to 1858, from a prominent display outside the House of Representatives chamber at the Statehouse. To date, the portrait hasn't been removed.
Critics of school choice say publicly funded scholarships and tax credits unfairly siphon taxpayer money away from public schools.
The state's voters have rejected several attempts to allow the use of public education funds for private schools, most recently in 1986. Two other attempts were rejected following legal challenges.
"Every attempt to change the state Constitution to allow for that has failed badly," said Max Page, vice president of the Massachusetts Teachers Association, the state's largest teachers union. "Public funds should not be used for private schools. We're firmly opposed to that."
On Beacon Hill, state officials and lawmakers are considering a long-sought overhaul of the education funding formula designed to help Massachusetts' neediest children. Education advocates say taxpayer-funded charter schools already divert nearly $600 million a year in Chapter 70 education away from cash-strapped public school districts. Diverting public money to private schools would only worsen the funding gaps, union leaders say.
On a national level, Education Secretary Betsy DeVos has pushed efforts to boost funding for charter schools and to create federal vouchers to attend private schools.
DeVos has proposed $5 billion a year in federal tax credits for donations made to groups offering scholarships for private schools, apprenticeships and other educational programs.
Eighteen states already offer their own scholarship tax credits, including Alabama, Arizona, New Hampshire and Virginia, according to the National Conference of State Legislatures. Most aim to help students from low-income families or those with disabilities.
Pioneer and other advocates for school choice are hopeful that the Supreme Court's new conservative majority will take up the case and ultimately rule in their favor.
Justice Brett Kavanaugh, who was tapped by President Donald Trump to fill a vacancy on the court, has been supportive of vouchers and the use of public facilities for religious activities.
In 2017, the high court ruled that states couldn't deny grants to religious organizations for playground resurfacing while providing grants to similar, but non-religious organizations. Denial of the grant, the justices ruled, violated the "free exercise" clause of the First Amendment.
Even if the high court rules the amendments unconstitutional, Massachusetts and other states would have to vote to amend their constitutions and create a tax credit or voucher program.
"It would still require legislative action," said Michael Gilleran, a Boston-based attorney representing Pioneer in the legal challenge. "Whether that would happen in Massachusetts is another question."
Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at firstname.lastname@example.org