It seems ironic that a group named something as benevolent as “The American Civil Liberties Union” would be using a discriminatory law from the 1800s to prohibit disadvantaged Nevadans from obtaining quality education. But, that’s exactly what is happening.
In one of the two court cases aimed at stopping Nevada’s innovative Education Savings Accounts, the ACLU is arguing that the reform violates the state’s “little Blaine amendment,” which prohibits tax-dollars from being used on “sectarian” purposes — such as private religious schools.
Added to the Nevada Constitution in the fall of 1880, the amendment — which became section 10 of Article 11 — states that “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”
And so, the big question the courts will answer is “do ESA’s violate the Nevada Constitution?” Well, in short, no.
After all, the state is not directly funding any religious school, nor is it monetarily or implicitly supporting any specific “sectarian” purpose. Instead, ESAs merely empower parents to take control over a portion of the tax dollars that are allocated for their children’s education.
ESAs fund a student’s education, at the discretion of individual parents, and that’s a far cry from government funding a “sectarian” institution. In practice, parents deciding to spend their ESA at a religious private school is no different than other private citizens spending Medicaid funds at a private Jewish or Christian hospital. Nor is it any difference than a church receiving private donations from citizens that are currently collecting Social Security.
Funding education, after all, is not the same thing as funding a government-run education monopoly. ESA’s do the former, while our current system does the later.
But more intriguing than the constitutional argument over parent’s decision to spend their ESA funds at private schools, is the ACLU’s strange embrace of an amendment that is deeply rooted in anti-minority bigotry.
The amendment itself is storied in anti-Catholic angst, and like many other anti-religion constitutional clauses of the same era, was specifically designed to discriminate against minority groups and immigrants from Germany, Ireland and Italy.
Nativist 19th Century secret societies, including the Ku Klux Klan, the Know Nothings and the American Protective Association had been stoking animosity toward newly-arriving Catholic minorities for years. As it became obvious that a national attempt to pass the amendment was not feasible, many individual states began adopting their own version, with clearly sectarian motives of their own.
In Massachusetts, the predominantly protestant school system was the basis for the state’s “common school” model — and their version of the Blaine amendment, prohibiting tax-dollar funding of “sectarian” schools, allowed the protestant majority to legally monopolize the education sector.
In that state, the King James Bible continued to be taught in government-run “common schools,” but other religious teachings were effectively banned from the classroom.
In effect, the censorship of minority views — disguised as a well-intended law to keep government from playing religious favorites — was in full swing in the late half of the 19th century.
Some folks in Nevada were eager to jump onto the bandwagon as well in post-Civil War America.
As Steve Miller at the Nevada Policy Research Institute reported in detail, it all began in Nevada with a small Catholic orphanage in Virginia City.
In an attempt to effectively bully the small charity out of existence — handing a monopoly over to the government-run “secular” alternative — a group of legislators in Nevada managed to raise support for a state version of the so-called “Blaine Amendment.”
It was passed, enforced, taken to court — and it was ultimately upheld by a Supreme Court that essentially used popular prejudice against Catholicism to justify the law’s discriminatory design.
The impact of this late 19th century bigotry can still be felt today, as religious families are forced to fund “secular” government-run schools. Even more offensive, is the fact that — if the ACLU has its way — the state will be able to continue discriminating against families seeking a religious education by refusing them control over any portion of the tax dollars allotted for their child’s education.
In the end, the noise we’re hearing from the ACLU and opponents to school choice is deafening in its irony. The “American Civil Liberties Union” — claiming to be the defender of oppressed minorities — is actually clinging to a bigoted law from the 1800s that restricts, not expands, religious freedoms.
Perhaps someone needs to explain to the ACLU what, precisely, the term “civil liberties” actually means.
Michael Schaus is communications director for the Nevada Policy Research Institute.
