by Glenn Cordelli

The United States Supreme Court recently issued a ruling in a Maine case (Carson v. Makin) that is another major victory for parents trying to find the education option that best meets the needs of their children. This case involved the Maine school tuitioning program that provides tuition assistance to parents in towns that do not offer certain grade levels to send their children to other schools for those grades. Parents may elect to send their children to private schools with the tuition assistance. The case resulted from families wanting to send their children to private, religious schools.

School tuitioning in Maine began back in 1873 and is the second oldest school choice program in the nation (second to Vermont). In 1982, however, that was changed to restrict tuition payments to nonsectarian or non-religious schools.

A decade later, the U.S. Supreme Court issued a ruling in the Zelman v Simmons-Harris case. The State of Ohio had assumed control of the Cleveland schools and instituted a scholarship program. Under the program, tuition assistance was provided to low income families so that their children could attend the public or private school of their choice including a religious private school. A group of Ohio taxpayers filed suit claiming that the program violated the Establishment Clause. In a 5-4 decision, the court found that the program was Constitutional. In the majority opinion written by Justice Rehnquist, he stated that “the Ohio program… permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.” Maine then considered revising their restriction on payments to nonsectarian schools but it was not passed by their legislature.

In 2018, a suit was filed on behalf of three Maine families who wanted to send their children to religious schools. They alleged that the Maine restriction violated the Establishment Clause as decided in the Zelman case. A U.S. district court ruled in favor of Maine and the Commissioner of Education (Makin). The decision was appealed to the U.S. Court of Appeals. At approximately the same time that the court was hearing the case, there was another case being heard before the U.S. Supreme Court – Espinoza v. Montana Department of Revenue.

In June of 2020, the Supreme Court issued their landmark ruling in favor of Ms. Espinoza and Montana families. The issue was a familiar one – a family using a tax credit scholarship program to send their child to a religious school which had been denied by the state. The state argument was that an amendment in their state constitution prevented public funds going to a religious school. Their so called “Blaine amendment” was one similar to one in our N.H. Constitution. In his opinion, Justice Alito wrote that if a state decides to fund private education institutions, it cannot discriminate against parents who choose to send their children to religious schools.

Now back to the pending Maine case. Several months after the Espinoza decision, the First Circuit Court of Appeals ruled for the state despite the Espinoza decision. The parents appealed to the U.S. Supreme Court and we now have their decision. Again, the Supreme Court has ruled that religious schools cannot be discriminated against if public funds are provided to families and they can then choose the school for their children. As Chief Justice Roberts wrote for the court “As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

In New Hampshire, we opened our town tuitioning program to religious schools in 2021 on the basis of the Espinoza decision. That same year we put into law our Education Freedom Accounts program that provides funds to families to send their children to the school (religious or not) of their choice or a variety of other education options. What comes next? I will re-introduce a constitutional amendment to repeal our Blaine amendment. It is a stain on our historic Constitution. Blaine amendments were born of bigotry when in the late 1800s Catholic families were arriving from Europe (Ireland especially). They arrived to find our then “public” schools teaching children from Protestant Bibles. This became quite an issue and a period of anti-Catholicism followed. Congressman Blaine of Maine introduced an amendment to our U.S. Constitution to prohibit public funds going to sectarian schools (sectarian or sect as code for Catholic schools). The amendment fell one vote short in the U.S. Senate but states began adopting “mini” Blaine amendments to their constitutions – including New Hampshire.

New Hampshire needs to repeal this now unconstitutional amendment.

There are now multiple U.S. Supreme Court decisions, including Zelman, Espinoza and Carson, that invalidate the state Blaine amendments which were passed to prohibit “public” funds going to religious institutions. John Blaine of Maine is dead and the N.H. Blaine amendment needs to have the same fate. There can be no excuse not to repeal this remnant of anti-religious, anti-Catholic bigotry. The U.S. Supreme Court has spoken and now it is time for our legislature to speak by voting for the repeal and sent it to a vote of the people of New Hampshire.