Washington Special Needs - Backgrounder

Litigation Backgrounder

Freeing Special Needs Children From Religious Discrimination in Washington State:
IJ-Washington Tackles Blaine Amendments That Limit School Choice and Educational Opportunity

 

The Issue in a Nutshell:

Under the federal Individuals with Disabilities Education Act, the state of Washington offers special education services to children in both public and private schools—all children in need, that is, except those whose parents choose religious schools.  

For parents like Shari and Derrick DeBoom, Washington’s policy forces an impossible choice.  Their son Michael suffers from attention-deficit, anxiety and motor-skills problems that hinder his ability to learn.  Michael is eligible for special education services under the IDEA, but Washington will not provide them at the school his parents have chosen for him, Lynden Christian School, because it is a religious school.  Instead, the state insists he travel to a public school for needed services.  But educational assistance like a specially equipped laptop for note-taking is useless outside the classroom where he needs to take notes.

So the DeBooms must either take their son out of the school of their choice or forgo needed assistance.  No parent should be forced to choose between their child’s physical needs and the school they believe is best for their child.

Washington is singling out families who choose religious schools and denying only their children the special education services they need to thrive.  Under the U.S. Constitution, that is religious discrimination and it is unconstitutional.

To justify its ban, Washington relies on the Blaine Amendments in its state Constitution—unfortunate relics of 19th-century anti-religious bigotry that are also the favored legal weapon of those who oppose school choice programs, like vouchers and tax credits, that offer educational opportunity.

To remove that weapon from the education establishment and to vindicate the rights of parents to choose their children’s schools from a wide array of options, the Institute for Justice on November 12, 2008, will file a federal lawsuit in the U.S. District Court for the Western District of Washington on behalf of the DeBooms and other families challenging Washington’s discrimination against special needs students.
 


Introduction

The special education section of the Washington State Superintendent’s office has a catchy motto emblazoned across the cover of its publications:  “Special Education . . . a service, not a place.”  Tell that to the many special needs children enrolled in Washington’s religious schools.  Washington has made special education entirely about place for these children, depriving them of the help they need simply because their parents place them in a religious school.

Under the Individuals with Disabilities Education Act (IDEA)[i], Washington receives federal funds to provide special education services to children with disabilities.  Because the IDEA is intended to help all students with special needs, not just those in public schools, it requires that a portion of these funds be used to provide special education services to students whose parents send them to private schools. 

Washington, however, discriminates against special needs children whose parents choose religious schools.  The state’s Superintendent of Public Instruction has enacted regulations that ban special education services at religious schools, meaning children must travel off-site to some “nonsectarian” location in order to access the services they need.  Meanwhile, students at non-religious schools, whether public or private, may receive services on-site.

At best, Washington’s regulations burden, disrupt and stigmatize special needs children in religious schools.  At worst, they render special education services useless for these children.  Consequently, many parents forego the services for which their child is otherwise eligible.  Many other parents forego their right to choose a religious school for their child and instead enroll the child in a public or non-religious private school, where they can access services on-site.  Washington’s regulations force these parents to choose between their child’s physical needs and the school they believe is best for their child—a choice no parent should have to make.

Washington justifies its discriminatory regulations with a pair of state constitutional provisions known as “Blaine Amendments.”  These provisions are rooted in the anti-Catholic and anti-immigrant bigotry that was rampant when Washington was admitted to the Union in 1889.  Despite their sordid history, Blaine Amendments are today used not only by Washington to deny educational opportunities for children with special needs, but also by opponents of school choice programs to deny parents the right to select the schools that are best for their kids. 

The U.S. Constitution requires government to be neutral toward religious options in public programs, neither favoring nor discriminating against religion.  That is why the Institute for Justice, on behalf of three families with special needs children, is challenging Washington’s discriminatory ban on special education services.  The purpose of the case is both to end discrimination against special needs children in the Evergreen State and to end all reliance on relics of 19th-century bigotry to deny children educational opportunities today.

 

The IDEA

The IDEA is a federal law that grants funds to the states to provide special education services to children with disabilities.  For every eligible child with a disability, school districts must make available a “free appropriate public education” in conformity with an “individualized education program” (IEP):  a written statement of an educational program that includes the special education services the district will provide if the child is enrolled in a public school.[ii]

However, school districts are also required to spend a “proportionate share” of their federal funds on services for children whose parents choose to send them to private schools within the district, whether religious or non-religious.[iii]  The IDEA refers to such students as “parentally placed private school children.”

When the school district designates a parentally placed private school child to receive special education services, it must develop a “services plan” outlining the services the child will receive.[iv]  The U.S. Department of Education has made clear that, absent some compelling reason to the contrary, these services should be provided at the child’s school:  “[I]n the interests of the child, [school districts] should provide services on site at the child’s private school so as not to unduly disrupt the child’s educational experience, unless there is a compelling rationale for these services to be provided off-site.”[v]  To that end, the IDEA expressly authorizes states to provide services at private, including religious, schools[vi], and the U.S. Supreme Court has held that doing so is perfectly permissible under the Establishment Clause of the U.S. Constitution.[vii]

 

Washington’s Discriminatory IDEA Regulations and Their Victims

In spite of this, Washington state has banned special education services at religious schools.  Specifically, Washington’s Superintendent of Public Instruction has announced:

  • “No services, material, or equipment of any nature shall be provided to students on the site of any private school or agency subject to sectarian control or influence.”[viii]
  • “No services, material, or equipment of any nature shall be provided to any private school or agency subject to sectarian (i.e., religious) control or influence.”[ix]

As a result of these discriminatory regulations, special needs children attending religious schools must travel off-site to some “nonsectarian” location to access the special education services they need.  Students attending non-religious schools—whether public or private—may receive services on-site, where they do the most good.[x]  By banning services at religious schools, Washington’s regulations harm the very children the IDEA requires it to help. 

 

Michael DeBoom

Michael DeBoom is an eighth-grader with attention-deficit, anxiety and motor-skills problems that seriously impair his ability to learn.  Two years ago, while Michael was a student at Lynden Christian School, the Lynden School District determined he was eligible for special education services through the IDEA.  The school district wanted to provide him, at Lynden Christian, a paraeducator to work with him and his teachers to modify his curriculum and a specially equipped laptop to help him with note-taking. 

Because of Washington’s discriminatory regulations, however, the school district was told by the state that it could not provide these services at Lynden Christian.  Michael and his teachers would instead have to travel to a public school to access them.  That would have been incredibly disruptive for Michael and virtually impossible for his teachers.  Moreover, a laptop would have been useless off-site—he needed it to take notes in the classroom.  Michael’s parents, Shari and Derrick, offered to purchase a laptop on their own if the school district would simply equip it with appropriate software.  Even this was prohibited, however.  Michael therefore had to forego the services. 

Without the services, Michael did not make adequate progress during the following year.  At the end of seventh grade, Lynden Christian informed Shari and Derrick that it was unable to keep him as a full-time student without the services of a paraeducator trained in curriculum modification, which Michael was eligible for—but, because of Washington’s discriminatory regulations, unable to receive—under the IDEA.  Determined to keep Michael at Lynden Christian, Shari and Derrick searched for a qualified paraeducator whom they could hire on their own to work with Michael at the school.  They found one but could only afford to hire her for two hours a week, which was insufficient.

Consequently, Shari and Derrick were forced to enroll Michael part-time in a public school, where he can receive special education services under an IEP.  Because they are so committed to his attending Lynden Christian, however, they have also arranged for him to attend afternoon classes there.

Traveling between two schools is disruptive and burdensome for Michael.  It is also stigmatizing and stressful.  Most importantly, however, time spent at the public school is time Michael is not spending at Lynden Christian, the school his parents believe is best for him.

 

Rachael Apodaca

Rachael Apodaca, an eighth-grade girl with Down syndrome, has also suffered from Washington’s discriminatory regulations.  Rachael’s mom Dee believes Lynden Christian is the best school for her. 

Because Rachael had been evaluated and deemed eligible for services under the IDEA, Lynden Christian’s administration inquired if the Lynden School District would provide her special education services at the school.  The district considered providing a paraeducator at Lynden Christian to modify curriculum for Rachael and other students with disabilities.  As the school district was pursuing this possibility, however, it was advised that Washington’s regulations barred it from providing the paraeducator at Lynden Christian. 

Dee could have enrolled Rachael in a public school, where she would have received special education services in reading, writing, math and speech therapy under an IEP.  But that would have required Rachael to attend the public school five days a week, and Dee does not believe public school is right for Rachael.  Dee therefore home-schools Rachael part-time and sends her to Lynden Christian part-time.  Rachael also has to travel to a public school seven times a month for speech therapy.

The time, cost and effort of home-schooling Rachael are burdensome and stressful for Dee.  If Rachael were able to receive special education services at Lynden Christian, she could receive more of her education at the school her mom believes is best for her.

 

Skyler Hamilton

Skyler Hamilton is yet another victim of Washington’s discriminatory regulations.  Skyler attended first grade at Lynden Christian, where he thrived.  Then he was diagnosed with brain cancer.  He missed his entire second-grade year to undergo surgery, chemotherapy and radiation.  The Lynden Christian staff and families were incredibly supportive, visiting Skyler in the hospital regularly, providing meals for his family, and sending him constant well-wishes and messages of encouragement.

Skyler’s cancer and treatments left him with substantially limited use of the right side of his body, a nervous system condition that impaired his coordination, and significantly weakened legs, requiring him to use a wheelchair.  Skyler also suffered significant impairments in information processing and short-term memory and therefore required substantial academic support.

Skyler’s parents, Margaret and Dan, were determined to send him back to Lynden Christian.  Because of the extent and nature of his disabilities, however, the school could accept him on only a limited basis if he did not have access to certain special education services.  The school’s administration, blocked in its attempts to secure special education services for Michael DeBoom and Rachael Apodaca, informed Margaret and Dan that, because of Washington’s regulations, Skyler would not receive any services at Lynden Christian through the IDEA.

Margaret and Dan were forced to enroll Skyler in a public school.  But because Margaret and Dan believe so strongly that Lynden Christian is the best school for Skyler, they also made arrangements for him to attend classes there two afternoons a week.  A retired grandmother volunteered to provide him assistance that he might be able to receive under the IDEA were it not for Washington’s discriminatory regulations.

Traveling between two different schools is disruptive, stressful and burdensome for Skyler, who is still substantially weakened from the treatments he underwent to fight his cancer.  And it detracts from the educational benefit he would receive were he in the classroom at Lynden Christian, the school his parents believe is best suited for him.

For each of these families, Washington’s regulations have forced an unpalatable choice between a child’s physical needs and the school that child’s parents believe is best for him or her.  That is a choice no family should have to make.

 

Blaine Amendments:  Discriminatory Relics of 19th-Century Bigotry

Washington’s justification for discriminating against students like Michael, Rachael and Skyler is a pair of state constitutional provisions with dubious origins:

  • “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”[xi]
  • “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment[.]”[xii]

Such provisions, known as “Blaine Amendments”[xiii] and found in some thirty-seven state constitutions[xiv], have a sordid history steeped in anti-religious—specifically, anti-Catholic—bigotry.  It is a history that justices of the U.S. Supreme Court have decried as a “shameful pedigree . . . born of bigotry” that “should be buried now.”[xv]

In the mid-19th-century, public schools were a far cry from the public schools of today.  Viewed as a tool for assimilating the various immigrant groups then entering the United States, they were overtly used to teach explicitly Christian and, at least implicitly, Protestant, values.[xvi]  It was standard practice, for example, for Protestant prayers to be recited and the Bible—specifically, the King James version of the Bible—to be read in the public schools.[xvii]  Students who refused suffered beatings and expulsion.[xviii] 

As time passed and the waves of immigrants became increasingly Catholic, tensions rose.  These new Americans found it unacceptable that their children were being educated from this decidedly Protestant perspective.  At the same time, skepticism grew in a very nativist America about the loyalty of Catholics and the compatibility of Catholicism with American citizenship.[xix]  Out of—indeed, capitalizing on—this climate, James G. Blaine rose to prominence.

In 1875, Blaine was an influential Republican congressman gearing up for a presidential run.  He actively courted the anti-Catholic vote, and one of his vehicles for doing so was a proposed amendment to the U.S. Constitution designed to preserve the generic Protestantism taught in the public schools, while foreclosing any aid whatsoever to so-called “sectarian”—at the time, not-so-thinly-veiled code for Catholic[xx]—schools.[xxi]  Rather than representing any ideal of separation of church and state, Blaine’s amendment was intended to appeal to anti-Catholic sentiment that was then, and is now, repugnant to the Constitution.  As one court explained, “The Blaine Amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what was perceived as a growing ‘Catholic menace.’”[xxii]

Fortunately, after passing the House overwhelmingly, the Blaine Amendment failed by four votes to get the necessary two-thirds majority in the Senate.[xxiii]  Unfortunately, however, the matter did not die there.  After Blaine left Congress, Sen. Henry Blair of New Hampshire took up the cause.[xxiv]  With anti-Catholic sympathies equal to, if not greater than, Blaine’s[xxv], Blair tried again to amend the U.S. Constitution to prohibit “sectarian” instruction yet require public schools to educate children “in virtue, morality, and the principles of the Christian religion.”[xxvi] 

Like Blaine, Blair was unsuccessful in his attempt to amend the U.S. Constitution.  Unfortunately, however, he and his cronies accomplished through the back door what they could not accomplish through the front:  As new states entered the Union, Congress required them to include Blaine Amendments in their own constitutions.[xxvii]   Thus, when Congress authorized the admission of Washington, along with Montana, North Dakota and South Dakota, into the Union, it also required the adoption of state constitutions providing “for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control.”[xxviii]

Washington’s constitutional framers went even further than Congress required.[xxix]  They mandated that “schools maintained or supported wholly or in part by the public funds . . . be forever free from sectarian control or influence,” [xxx] and prohibited the “appropriat[ion] . . . or appli[cation]” of any public money to “any religious . . . instruction.”[xxxi]  These are the very provisions the state relies upon today to deny special education services to Michael, Rachael, Skyler, and other special needs kids whose parents choose religious schools.

Unfortunately, and notwithstanding this sordid history, Washington courts routinely invoke these provisions as grounds for excluding religious options from public programs.  For example, the Washington Supreme Court has barred a blind student from using vocational rehabilitation funds to pursue seminary studies[xxxii]; forbidden a program that provided textbook and tuition assistance grants for needy students at public and private, including religious, schools[xxxiii]; and struck down a program that allowed students from private, including religious, schools to ride public school buses.[xxxiv]  Although, in 2002, the court upheld a state grant program that could be used at religious colleges,[xxxv] the court went out of its way to emphasize that the Washington Constitution is “more proscriptive” when it comes to elementary and secondary schools.[xxxvi]  The court thus invited the state to continue relying on relics of 19th-century bigotry to deny educational opportunities to children today.

 

Why Barring Special Education Services at Religious Schools Violates the U.S. Constitution

Washington courts may approve of state discrimination against religion, but the U.S. Supreme Court has adopted instead a rule of neutrality:  “State power is no more to be used so as to handicap religions, than it is to favor them.”[xxxvii]  In a long-running series of cases, the Court has emphasized the federal Constitution’s requirement of neutrality toward religion, striking down laws that target religion for discrimination.[xxxviii]  Thus, regardless of the discriminatory provisions within its own constitution, Washington must be neutral in its public programs, neither favoring nor disfavoring religion.  It may not single out families who choose religious schools, such as the DeBooms, Apodacas and Hamiltons, and deny only their children the special education services they need to thrive.

One court has already held just that.  In Peter v. Wedl[xxxix], the 8th U.S. Circuit Court of Appeals held it unconstitutional for a Minnesota school district to deny IDEA services on-site at a religious school while allowing services at non-religious private schools.  Like Washington, Minnesota had a regulation that limited the provision of services to “neutral”—meaning nonsectarian—sites.[xl]  The court concluded that this regulation drew an “unconstitutional distinction between private religious schools and private nonreligious schools” and therefore violated the Free Exercise and Equal Protection Clauses of the U.S. Constitution.[xli]

Unfortunately, the 9th U.S. Circuit Court of Appeals came to the opposite conclusion.  In KDM v. Reedsport School District[xlii], the court held it permissible for an Oregon school district to force a blind child with cerebral palsy to travel off-site to a firehouse in order to access the services of a vision specialist.  The court reasoned that because the services provided at the firehouse were adequate, the child’s parents had not been forced to choose between the services and their right to educate their child at a religious school.[xliii]  In a stinging dissent, Judge Andrew Kleinfeld observed, “Discriminating against religious schools in a program of otherwise general availability makes no sense as a strategy for avoiding an establishment of religion, because treating everyone the same without regard to religion is hard to see as ‘establishing’ anything—except equality.”[xliv]

As KDM’s parents were pursuing review of the Ninth Circuit’s decision by the U.S. Supreme Court, Oregon began the process of amending its discriminatory regulation to allow services on-site at religious schools.[xlv]  The Supreme Court declined review[xlvi], so the Ninth Circuit’s opinion, despite the change in Oregon’s regulation, still stands.  With this case, the Institute for Justice will urge the Ninth Circuit to revisit its ruling, adopt the approach of the Eight Circuit, and stop, once and for all, the use of state Blaine Amendments to deny educational opportunities for children like Michael, Rachael and Skyler.

 

Clearing a Path for School Choice by Reining in Blaine

A ruling that state Blaine Amendments may not be used to deny religious options in education would have a significant impact far beyond special education.  It would be a substantial victory for the cause of school choice:  the right of parents, rather than government, to choose the schools that are best for their children. 

School choice is an increasingly popular issue in state legislatures nationwide as more and more states consider expanding educational options to help children get a better education, spur public school improvement, and save taxpayer dollars.[xlvii]  There are currently 27 school choice programs that take a variety of approaches toward one goal:  empowering parents to select the schools that are best for their kids.  They include publicly-funded scholarship programs; tax credit programs that grant businesses or individuals a tax credit for donations to private, nonprofit scholarship-granting organizations; and personal tax credit or deduction programs that offer parents a tax credit or deduction for tuition and other education-related expenses incurred in sending their own children to school.

Momentum is clearly on the side of choice.  In fact, 15 school choice programs have been enacted since 2002.  That was the year the U.S. Supreme Court rejected the then-favored argument of school choice opponents:  that programs that include religious options are impermissible under the Establishment Clause of the U.S. Constitution.  In its historic Zelman v. Simmons-Harris[xlviii] decision, the high Court upheld an Ohio voucher program that saved thousands of poor and mostly minority children from Cleveland’s dismal public schools.  The Court declared that religiously-neutral programs that allow parents to freely choose among a wide array of educational options—including religious schools—are permissible under the U.S. Constitution, just as Pell Grants and the G.I. Bill have always allowed students to choose religious colleges if they wish.

But school choice opponents—primarily public school teachers’ unions—continued their state constitutional attacks, arguing that, regardless of whether choice programs are permissible under the federal Constitution, they violate state Blaine Amendments.

Using Blaine Amendments to attack school choice is not new, nor has it been particularly successful.  Even before the U.S. Supreme Court’s Zelman decision, state courts in Wisconsin[xlix], Arizona[l] and Illinois[li] rejected challenges to school choice programs on Blaine Amendment grounds.  Nevertheless, the attacks continue.[lii]

A ruling that Washington may not deny special education services to special needs children at religious schools would help clear the path ahead for school choice by stopping these attacks and ending reliance on discriminatory Blaine Amendments to thwart educational opportunity.  Most importantly, it would help vindicate the rights of parents to choose their children’s schools from a wide array of options, including public, private and religious schools.

 

Litigation Team           

The lead attorney in this case is Institute for Justice Washington Chapter (IJ-WA) Staff Attorney Michael Bindas.  Assisting Bindas will be IJ Senior Attorney Richard Komer, IJ-WA Executive Director William Maurer, and IJ-WA Staff Attorney Jeanette Petersen.

The Institute for Justice is the nation’s leading legal advocate for school choice.  The Institute helped win a tremendous victory for school choice in the U.S. Supreme Court when it represented parents participating in Cleveland’s school voucher program.[liii]  IJ also successfully defended Milwaukee’s school voucher program[liv], as well as tax credit programs in Illinois[lv] and Arizona[lvi], from legal attacks by school choice opponents.  The Institute is currently defending Arizona’s voucher program for special needs and foster children, as well as its individual and corporate tax credit programs.

For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:

Lisa Knepper, Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203

Phone:  (703) 682-9320
Fax:  (703) 682-9321
lknepper@ij.org

 


[i] 20 U.S.C. § 1400 et seq.

[ii] 20 U.S.C. §§ 1412(a)(1) & 1414(d); 34 C.F.R. § 300.101.

[iii] 20 U.S.C. § 1412(a)(10)(A)(i)(I).

[iv] 34 C.F.R. § 300.132(b).

[v] Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46,540, 46,596 (Aug. 14, 2006).  See also H.R. Rep. No. 108-77, at 95 (2003) (“The Committee wishes to make clear that local educational agencies should provide direct services for parentally-placed private school students with disabilities (as for most students) on site at their school, unless there is a compelling rationale for such off-site services.   Such intent indicates the preference that providing services on site at the private school is more appropriate for the student and less costly in terms of transportation and liability.”).

[vi] 20 U.S.C. § 1412(a)(10)(A)(i)(III) (“[S]ervices to parentally placed private school children with disabilities may be provided to the children on the premises of private, including religious, schools, to the extent consistent with law.”); see also 34 C.F.R. § 300.139(a).

[vii] Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

[viii] Wash. Admin. Code § 392-172A-04075(3).

[ix] Id. § 392-172A-04075(2).

[x] See id. § 392-172A-04070(2) (“Equipment and supplies used with students in a private school or agency may be placed on nonsectarian private school premises for the period of time necessary for the program.” (emphasis added)); see also id. § 392-172A-02050(2).

[xi] Wash. Const. art. IX, § 4.

[xii] Wash. Const. art. I, § 11.

[xiii] While implicitly acknowledging Article 9, section 4 as a Blaine Amendment, the U.S. Supreme Court in Locke v. Davey, 540 U.S. 712 (2004), observed that the parties in that case had not established that Article I, section 11 is also a Blaine provision.  See id. at 723 n.7.  Subsequent scholarship, however, has demonstrated that it is.  See, e.g., Mark Edward DeForrest, Locke v. Davey:  The Connection Between the Federal Blaine Amendment and Article I, § 11 of the Washington State Constitution, 40 Tulsa L. Rev. 295 (2004).  This case will further demonstrate the link between Article I, section 11 and the Blaine movement and highlight the anti-religious bigotry that motivated its inclusion in the Washington Constitution.

[xiv] The states with Blaine Amendments are:  Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin and Wyoming.

[xv] Mitchell v. Helms, 530 U.S. 793, 828-29 (2000) (plurality); see also Zelman v. Simmons-Harris, 536 U.S. 639, 719-21 (2003) (Breyer, J., dissenting).

[xvi] See Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments:  Origins, Scope, and First Amendment Concerns, 26 Harvard J.L. & Pub. Pol’y 551, 558-60 (2003); John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 297-99 (2001); Robert F. Utter & Edward J. Larson, Church and State on the Frontier:  The History of the Establishment Clauses in the Washington State Constitution, 15 Hastings Const. L.Q. 451, 464 & n.62 (1988).

[xvii] See Jeffries & Ryan, supra note 16, at 298-300; DeForrest, supra note 16, at 558-60; Zelman, 536 U.S. at 720-21 (Breyer, J., dissenting).

[xviii] See Jeffries & Ryan, supra note 16, at 300; DeForrest, supra note 16, at 561-62; Zelman, 536 U.S. at 720-21 (Breyer, J., dissenting).

[xix] See Jeffries & Ryan, supra note 16, at 300-03.

[xx] Mitchell, 530 U.S. at 828 (plurality).

[xxi] See Joseph P. Viteritti, Blaine’s Wake:  School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657, 670-72 (1998); DeForrest, supra note 16, at 564-73.

[xxii] Kotterman v. Killian, 972 P.2d 606, 624 (Ariz. 1999)

[xxiii] Steven K. Green The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 38 & n.3 (1992).

[xxiv] See Joseph P. Viteritti, Davey’s Plea:  Blaine, Blair, Witters, and the Protection of Religious Freedom, 27 Harv. J. L. & Pub. Pol’y 299, 313 (2003); Utter & Larson, supra note 16, at 461-62, 464; DeForrest, supra note 13, at 302.

[xxv] See, e.g., Viteritti, supra note 24, at 313; Utter & Larson, supra note 16, at 465 & n.67.

[xxvi] See Utter & Larson, supra note 16, at 461-62, 464.

[xxvii] See DeForrest, supra note 13, at 302.

[xxviii] Act of Feb. 22, 1889, ch. 180, 25 U.S. Stat. 676 (1889); see also DeForrest, supra note 13, at 302; see generally Utter & Larson, supra note 16, at 458-67.

[xxix] DeForrest, supra note 13, at 310-11, 319-20.

[xxx] Wash. Const. art. IX, § 4.

[xxxi] Wash. Const. art. I, § 11.

[xxxii] Witters v. State Comm’n for the Blind, 771 P.2d 1119 (Wash. 1989).

[xxxiii] Weiss v. Bruno, 509 P.2d 973 (Wash. 1973), overruled in part on other grounds, Gallwey v. Grimm, 48 P.3d 274 (Wash. 2002).

[xxxiv] Mitchell v. Consol. Sch. Dist. No. 21, 135 P.2d 79 (Wash. 1943); see also Visser v. Nooksack Valley Sch. Dist., 207 P.2d 198 (Wash. 1949).

[xxxv] Gallwey v. Grimm, 48 P.3d 274 (Wash. 2002).

[xxxvi] Id. at 287 (citation omitted).

[xxxvii] Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 18 (1947).

[xxxviii] E.g., Good News Club v. Milford Cent. School, 533 U.S. 98 (2001); Rosenberger v. Rectors & Visitors of Univ. of Va., 515 U.S. 819 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Widmar v. Vincent, 454 U.S. 263 (1981); McDaniel v. Paty, 435 U.S. 618 (1978).  See also Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990) (upholding a law criminalizing possession of peyote because it was neutral with respect to religion and emphasizing that “government may not . . . impose special disabilities on the basis of religious view or religious status”).  Some commentators have suggested that the Supreme Court’s opinion in Locke v. Davey, 540 U.S. 712 (2004), marked a departure from these cases, which demand neutrality toward religion.  Locke, however, merely carved out a narrow exception—public funding for the religious training of ministers—to the general rule requiring equal treatment of religious and non-religious options.  In fact, the college scholarship program at issue in the case permitted the choice of religious schools; it only prohibited scholarship students from pursuing a religious vocation—i.e., majoring in “devotional theology”—with their scholarships.

[xxxix] 155 F.3d 992 (8th Cir. 1998).

[xl] Id. at 994.

[xli] Id. at 997.

[xlii] 196 F.3d 1046 (9th Cir. 1999).

[xliii] Id. at 1050-51.

[xliv] Id. at 1056 (Kleinfeld, J., dissenting) (internal quotation marks, footnote, and citation omitted).  Five additional judges subsequently joined Judge Kleinfeld in urging the court to reconsider its opinion.  See KDM v. Reedsport Sch. Dist., 210 F.3d 1098 (O’Scannlain, J., dissenting from denial of reh’g en banc).

[xlv] See 40-1 Or. Bull. 180 (Jan. 1, 2001); see also Or. Admin. R. 581-015-2455(7) (2008).

[xlvi] KDM v. Reedsport Sch. Dist., 531 U.S. 1010 (2000).

[xlvii] See generally Alliance for School Choice, School Choice Yearbook 2007, http://www.allianceforschoolchoice.org/UploadedFiles/ ResearchResources/Yearbook_Final.pdf.

[xlviii] Zelman v. Simmons-Harris, 536 U.S. 639 (2003).

[xlix] Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).

[l] Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999).  Kotterman upheld Arizona’s individual tax credit program against a Blaine Amendment challenge.  In 2004, school choice opponents filed a second lawsuit against the program, alleging that, even after Zelman, it violates the Establishment Clause of the U.S. Constitution.  A federal district court rejected that claim in 2005, and the plaintiffs appealed.  The case has been argued and is awaiting decision from the 9th U.S. Circuit Court of Appeals.

[li] Toney v. Bower, 744 N.E.2d 351 (Ill. App. Ct. 2001); see also Griffith v. Bower, 747 N.E.2d 423 (Ill. App. Ct. 2001).

[lii] Since Zelman, an Arizona trial court dismissed a Blaine challenge to Arizona’s corporate tax credit program; the case is currently on appeal to the Arizona Court of Appeals.  School choice opponents also challenged Arizona’s voucher programs for disabled and foster care students, claiming the programs violated Arizona’s two Blaine Amendments.  In May 2008, the Arizona Court of Appeals held that the programs:  (1) did not violate the state constitution’s bar to public money being “appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment”; but (2) did violate the Arizona Constitution’s “Aid Clause,” which the court declined to characterize as a true Blaine Amendment.  See Cain v. Horne, 183 P.3d 1269 (Ariz. Ct. App. 2008).  That decision, however, is currently being reviewed by the Arizona Supreme Court.  In another post-Zelman case, the Colorado Supreme Court avoided resolving a Blaine challenge to a Colorado school choice plan, striking down the program on other grounds.  Owens v. Colo. Cong. of Parents, Teachers, and Students, 92 P.3d 933 (Colo. 2004).  Finally, a Florida appellate court ruled against that state’s Opportunity Scholarship Program on Blaine Amendment grounds, but on appeal the Florida Supreme Court failed to reach the issue, instead striking the program down under the state constitution’s “uniformity” provision for education.  Bush v. Holmes, 919 So.2d 392 (Fla. 2006). 

[liii] Zelman, 536 U.S. 639.

[liv] Jackson, 578 N.W.2d 602.

[lv] Toney, 744 N.E.2d 351; Griffith, 747 N.E.2d 423.

[lvi] Kotterman, 972 P.2d 606.


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