CHARLESTON — West Virginia Attorney General Patrick Morrisey’s office is leading a coalition of eight states in an amicus brief to the U.S. Supreme Court supporting a group of parents who are challenging Michigan’s Blaine Amendment that prohibits nonpublic elementary and secondary schools from receiving public aid.
Morrisey calls the amendment another example of government overreach.
Blaine Amendments are amendments to state constitutions intended to prevent the use of public funds to support parochial schools, specifically, Catholic schools. Since it was passed in 1970, the current Michigan Blaine amendment has prevented families from accessing schooling options of their choice.
The amendments are named after James G. Blaine, a 19th century politician from Maine,
The families challenging the Michigan amendment have saved money in a tax-exempt 529 plan and want to use those funds to cover the cost of private school tuition. The amendment prevents any public funds to benefit nonpublic schools, even funds from education savings accounts.
“This case is a prime example of government overreach,” Morrisey said. “These families have worked hard and saved money to give their kids the best educational opportunities they can, and now the state says they can’t because the schools they have chosen happen to be private or may be associated with a religious entity.
“But programs like West Virginia’s Hope Scholarship program prove that more school choice is better.”
Across the country, parents have been exploring alternatives to public schools in recent years. Those efforts ramped up during and after the COVID-19 pandemic.
“Michigan’s Blaine Amendment is problematic for several reasons,” Morrisey said. “First, it violates the U.S. Constitution’s Free Exercise Clause in the First Amendment and Equal Protection Clause in the Fourteenth Amendment.
“Second, the state is standing in the way of parents when it comes to their choice of school for their children and that’s just wrong.”
In the brief, the states say there are two issues at the heart of the case -- how states choose to distribute their powers and how parents choose to educate children. The brief says those issues “are about as important as they come.”
“Michigan’s Blaine Amendment doesn’t just offend equal-protection principles; ultra-restrictive amendments like Michigan’s can also stand firmly in the way of education-freedom policies like vouchers, education savings accounts, tax credits and more,” the 39-page amicus brief argues. “State experiments with nontraditional education models have proven popular among both parents and students. They are successful both academically and socially, too.
“As states try to find new ways to answer the exploding demand for school-choice options, strict Blaine Amendments block the path. The court should grant the petition to remove yet another tranche of unconstitutional actions blocking freedom in education.”
Georgia, Idaho, Iowa, Kansas, Montana, South Dakota and Utah joined the West Virginia-led brief. The case is styled Jill Hile et al. v. State of Michigan et al.
The two questions presented to the Supreme Court in the case are whether Michigan’s constitutional amendment barring direct and indirect public financial support for parochial and other nonpublic schools violates the Equal Protection Clause and whether the failure of a 2000 school-voucher ballot proposal purges the amendment of its religious animus for purposes of the Equal Protection Clause.
United States Supreme Court case number 23-1084