There is a strange anomaly in American Constitutional Law as it has come down to us through the courts: the freedom of private schools, including religious schools, to educate children according to their parents' wishes is guaranteed in that no public school monopoly over education is allowed. But when it comes to public funding, religious schools have generally been excluded.

This is because any direct subsidy to religious schools has been construed to violate the Establishment Clause of the First Amendment of the U.S. Constitution, and because even indirect aid to such schools through scholarship programs or voucher plans given to students and their families has been held to violate state constitutional provisions. These provisions are called Blaine Amendments, and 38 states have them -- including Massachusetts -- which enacted a prototype of what would become known as Blaine amendments in the 1850s, when Massachusetts had a Know-Nothing governor and Know-Nothing state legislature. These Blaine amendments prohibit government funds going directly or indirectly to "sectarian" education.

This categorical exclusion of religious private schooling from public funding is anomalous, because people pay for public education through their taxes, and Catholic and other religious parents who want to send their children to religious schools in effect have to pay twice: once for the public schools through their taxes, and again for the private school through tuition and other charges. Needless to say, this constitutes a rather severe tilting of the playing field in favor of public schools, with deleterious effects, particularly in the inner cities, where private and Catholic schools outperform public schools in a host of ways.

It's also anomalous in that most modern countries allow private religious schools to participate in public funding: Great Britain, France, Canada, Italy, etc. The United States is virtually alone in categorically forbidding such funding.

There's a lawsuit now pending at the United States Supreme Court, which could change the legal landscape considerably. On June 28, the last day of the Court's term, it was announced that they were going to hear the case of Espinoza v. Montana Department of Revenue. I am not a stranger to this litigation because, last April 12, I filed an amicus brief on behalf of Pioneer Institute urging the Supreme Court to hear the case. Pioneer Institute is an independent, non-partisan, privately funded research organization in Massachusetts that is concerned with public policies that restrict religious freedom and educational opportunity for children.

Working with attorney Michael Gilleran, and a dream team of five Harvard Law students who researched and drafted the brief, we argued in our filing that the Court should hear the case because "the history of the proto-Blaine Amendment in Massachusetts is instructive on the l9th century religious bigotry in Montana and elsewhere that stands between petitioner Ms. Espinoza's children and a good education."

The anti-Catholic animus that was behind the prohibition on funding for sectarian education was explained in Justice Stevens' dissent in 2002: "Catholics sought equal governmental support for the education of their children in the form of aid for private Catholic schools. But the 'Protestant position' on this matter ... was that public schools must be 'non-sectarian' (which was usually understood to allow Bible reading and other Protestant observances) and public money must not support 'sectarian' schools (which in practical terms meant Catholic). And this sentiment played a significant role in creating a movement that sought to amend several state constitutions (often successfully), and to amend the United States Constitution (unsuccessfully) to make certain that government would not pay for 'sectarian' (i.e. Catholic) schooling for children." For more on the anti-Catholicism that was behind the so-called Blaine amendments, see our amicus brief at bit.ly/scotusbrief.

The fact that the U.S. Supreme Court is willing to examine the constitutionality of such persistent anti-Catholic bigotry gives solid ground for hope this coming Supreme Court term. Indeed, the fact that the decision to hear the case was promulgated during the Fortnight for Freedom called by the U.S. Catholic bishops to pray for religious freedom in our country is patently providential. And another ground for hope is the younger generation of law students like graduating 3Ls Grant Newman and Annika Boone, and 2Ls Anastasia Frane, Benjamin Fleshman, and James McGlone, who were willing to step forward and apply their ample learning and talents to defend religious liberty. May it not be in vain.



- Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.