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Supreme Court Frees States From Oppressive Blaine Amendments; School Choice Is Within Reach For Legislature

Last week SCOTUS told Montana, and by extension, the other 49 states that they can't exclude religious schools from generally applicable school choice programs simply because they are religious. This should have been the self-evident conclusion of anyone who read the First Amendment through the lens of history. The idea that the founders would have allowed states to discriminate against religious schools is foolish. 

At the time of the founding, many states had established religions. It was only the federal government that was prevented from establishing a religion. It was also barred from interfering with states’ establishments. The relevant phrase is “Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof.” (emphasis added) The constitution has since been amended, and most of the rights codified in the Bill of Rights have been applied to or “incorporated against” the states - that is why state police can no longer search a home without a warrant in violation of the Fourth Amendment. But many First Amendment scholars argue that the establishment clause cannot be applied to states, since it was a protection of states’ rights from the federal government. It makes no more sense than trying to incorporate the Tenth Amendment, which reserves powers to the states and the people, against the states. Both amendments protect the sovereignty of states from federal power. How could that become a limitation on state power?

So what did the Supreme Court do, and what are the practical effects? Montana had a tax scholarship program, similar to Oklahoma’s Equal Opportunity Education Scholarship, which allowed donors to give tax-deductible money to a scholarship organization, which would then be distributed to students to be used to help cover tuition at any qualified private school. Religious schools were allowed in the program on the same terms as any other school. Montana has a Blaine Amendment in their constitution - one that says the state may give “no aid” to religious schools. The Montana Supreme Court invalidated the entire scholarship program because it could find no other way to balance the competing claims of the state provision and the federal Establishment Clause. 

The US Supreme Court reminded the Montana court that when a state law conflicts with the US Constitution, the state law must fall. SCOTUS ruled that eliminating an entire program to make sure that no religious person or institution is positively impacted by the program is the kind of discrimination that violates the Free Exercise Clause. SCOTUS has not said, in so many words, that the program must be allowed to resume. It has only said that the reasoning the Montana court provided for striking the program down is unacceptable.The Montana Supreme Court will have another opportunity to review the program and rule on its constitutionality in light of the new holding from SCOTUS. Typically, courts that are overruled like this are properly chastened, and reverse course on their prior rulings. Occasionally, one will try to find a different path to get the same result. 

What does this mean for Oklahoma? It means the ball is firmly in the legislature’s court. There is no excuse for the legislature to continue sitting on its hands on school choice. It was understandable, until last week, that a legislator might not want to take the political risk of fighting for school choice, only to have the program undone by Oklahoma’s own Blaine Amendment. Today that is no longer an obstacle. The ruling will not, by the way, return the 10 Commandments Monument to the Oklahoma State Capitol. But it will prevent the Oklahoma Supreme Court from invalidating school choice measures that let parents choose the best school for their kids. 

There is a moral right and a moral wrong. Making school choice available to ALL students - giving them the means to get a real education where a monopolistic system is failing - is the morally right thing to do. The problem with voucher pilot programs was not with the “voucher” part, it was with the “pilot” part. Any family who wants to get their kids out of terrible public schools should be given the means to do so - the state should be in the business of funding students’ education, not in the business of making sure schools continue to stand as employment programs for adults. 

Teachers don’t realize it, but they would benefit from school choice as well. Right now, they are employed by a monopsony - the public schools employ the vast majority of teachers. If a teacher dislikes their district, their only option is move to another district. School choice would increase demand for non-public schools, meaning more teachers would be able to work for someone other than the public districts, who too often prize avoiding angry calls from parents over educating students and holding them to high standards. If teachers don’t feel a school has their back, they will be able to move to a school that does. Odds are these will be the same schools that do the best job educating students, too. This will create a virtuous cycle, where more students want to come, so more teachers are hired. 

The only losers in school choice are teachers unions and cowardly bureaucrats. Let’s put students first, teachers second, and get the added benefit of improving society. Forcing union bigwigs and bureaucrats to find a new line of work is a fair trade if it means teaching our kids. Legislature, let’s make real school choice a priority this year. 

Mike Davis is a Research Fellow at 1889 Institute. He can be reached at

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

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