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Discriminatory Blaine Amendment Used Against Education Savings Accounts in Nevada

Not long after Nevada created the nation’s first nearly universal education savings account (ESA) program for students last year, two lawsuits were filed to block the program that relied on discriminatory, historically anti-Catholic, provisions in the state constitution. Now the program is on hold following an injunction issued this month by a Nevada district court in one of the cases.

Carson City, Nev., District Judge James Wilson ruled on January 11 that the program “would cause irreparable harm to students in Nevada” by taking public funds out of the current public school system structure to create a “non-uniform system of schools.”

The case, Lopez v. Schwartz, was filed by the Education Law Center (ELC) in September on behalf of several parents. ELC argued that the program violated several provisions of the Nevada constitution, including Article 11, Section 2, which states in part that “any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund.”

“Article 11, Section 2 suffers from the same anti-Catholic taint that plagues the Blaine Amendment,” argued the Becket Fund for Religious Liberty in an amicus brief. The brief noted: “First, it was passed during a time of sweeping anti-Catholic sentiment and with an intent to remove Catholic influence on public schools, and second, it prohibits ‘sectarian’ influences on schools while leaving unharmed ‘generic’ religious practices in public schools.”

The groundbreaking ESA program, passed into law last summer, creates an account for students in which the state deposits an amount equal to 90 percent of the average amount spent by the state per student during that school year ($5,100 for the 2015-16 school year), or 100 percent for students with a disability or with a household income less than 185 percent of the federal poverty level ($5,700 for the 2015-16 school year).

Funds can be used for a variety of educational expenses, such as private school tuition (including religious schools), tuition at eligible higher education institutions, distance education, curriculum, tutoring, exam fees, transportation and specialized services or therapies for students with a disability.

To be eligible for the program, students must attend a Nevada public or charter school for at least 100 uninterrupted school days immediately prior to submitting an application. The first round of funding to the over 3,500 students who applied for the ESAs was scheduled to be sent out February 1.

Wilson ultimately concluded that plaintiffs “failed to carry their burden of proof” that the ESA program violated Article 11, Section 2, but said the program did violate  Article 11, Sections 6.1 and 6.2, and “irreparable harm will result if an injunction is not entered.”

Nevada Attorney General Adam Paul Laxalt appealed Wilson’s decision to the Nevada Supreme Court: “My Office is working diligently so that parents can enjoy the genuine educational choice envisioned by lawmakers this past legislative session, and remains focused on resolving the matter as quickly as possible to provide families with the certainty they deserve. A ruling from the state Supreme Court will do just that.”

The ACLU of Nevada and Americans United for Separation of Church and State filed a separate lawsuit, Duncan v. Nevada, against the ESA program back in August. In addition to relying on Article 11, Section 2, the lawsuit also argues that the ESA program violates Nevada’s Blaine Amendment found in Article 11, Section 10 of the state constitution: “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

“The education savings account law passed this last legislative session tears down the wall separating church and state erected in Nevada’s constitution,” Tod Story, executive director for the ACLU of Nevada, said at the time.

“To claim that the ESA Program funds ‘sectarian’ purposes is simply a modern spin on the same discrimination that birthed the Blaine Amendments,” the Becket Fund argued in their amicus brief in the case.

Blaine Amendments, named for former Speaker of the House and U.S. Secretary of State James G. Blaine, are provisions currently found in 37 state constitutions prohibiting the use of taxpayer funds at “sectarian” schools. After Blaine’s failed attempt to amend the U.S. Constitution with the proposal in 1875, versions of the amendment were “added to state constitutions in order to enforce the nativist bigotry of the day” against Catholics, according to The Beckett Fund for Religious Liberty. The provisions are now being interpreted to discriminate against non-Catholics as well.

“Activist groups are treating religious schools and the students who choose to attend them like second-class citizens,” said Diana Verm, legal counsel of the Becket Fund. “It is deplorable to see a discriminatory 19th century law being used to prevent children from access to quality education simply because the school may have religious ties.”

The lawsuit brought by the ACLU of Nevada and Americans United for Separation of Church and State is still awaiting a decision by the district court in Clark County, Nev., but the ACLU voiced support for Wilson’s decision in the Lopez case.

“The ACLU of Nevada is still diligently pursuing a permanent remedy to stop this unconstitutional voucher program,” said Amy Rose, legal director of the ACLU of Nevada. “We are pleased to see that another court recognizes that this program runs afoul of the Nevada Constitution.”

Laxalt, who is also defending the ESA program in the Duncan case, stated last week that the U.S. Supreme Court’s decision to hear a case challenging Missouri’s Blaine Amendment was a good sign for Nevada.

“My Office is encouraged by the U.S. Supreme Court’s decision that will be of crucial significance in our defense of Nevada’s Educational Savings Accounts,” he said. “The program is currently being challenged by the American Civil Liberties Union and Americans United for Separation of Church and State, who are asking state courts to twist the Nevada Constitution in ways never imagined, much less intended by our framers, barring parents and private schools with religious affiliations from participating in this important statewide program.

“Nevada’s Constitution does not require religious discrimination,” he continued, “and we are hopeful our nation’s highest Court will confirm that the U.S. Constitution does not allow that either.”

As The Cardinal Newman Society reported last week, a case challenging a discriminatory Blaine Amendment in Missouri’s state constitution will go before the U.S. Supreme Court this year to decide if the state can rely on the historically anti-Catholic constitutional provision in its denial of a grant to a Christian preschool meant to aid in resurfacing the playground with recycled tires.

The U.S. Supreme Court will also make a decision on February 19 to hear a case challenging Colorado’s Blaine Amendment. The Newman Society reported in December that petitioners are challenging a Colorado Supreme Court ruling that blocked scholarship funds to hundreds of families in Douglas County, Colo., who were supposed to be able to use the scholarship to attend a private school of their choice, regardless of a school’s religious identity.

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