Jim Kelly is President of Solidarity Center for Law and Justice, P.C., and Founder and General Counsel of Georgia GOAL Scholarship Program, Inc., Georgia’s largest K-12 tax credit student scholarship program.

During its upcoming term, in Espinoza v. Montana Department of Revenue, the Supreme Court will decide whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools. In considering the case, the court will examine whether state agencies, such as Montana’s Department of Revenue, can rely on “Blaine Amendments” to deny parties direct or indirect access to public funds for use in schools operated by religious groups.

Montana’s Blaine Amendment is based on an 1875 proposal by U.S. Representative James Blaine of Maine to amend the U.S. Constitution to prohibit states from using money raised by taxation, or from providing public lands, for the support of schools that are under the control of religious sects or denominations. In Espinoza, Montana officials cited the state’s Blaine Amendment as the basis for denying parents seeking to educate their children in the religious schools of their choice access to a K-12 scholarship program funded by state income-tax-credit-eligible contributions to private nonprofit scholarship organizations. Because there are 37 states whose constitutions contain Blaine Amendments, the question raised by Espinoza has national significance.

Most likely, during its deliberations, the court will consider the deep history evidencing the anti-Catholic animus at the root of the adoption of the Blaine Amendments in the second half of the 19th century. This evidence reflects a nativist fear that providing public funds for the education of millions of children from Catholic European immigrant families would embolden the anti-democratic “Papists,” who, allegedly, would be loyal to Rome, not to liberal republican values.

Of course, supporters of the Blaine Amendments made it clear that any prohibitions on the use of public funds for K-12 education conducted by “sectarian” institutions would not prevent the continued moral education of public-school children in accordance with Protestant Christian teachings that, in their view, were foundational to America’s greatness and survival. Thus, by adopting Blaine Amendments, state officials were not arguing against the teaching of religion in public schools – they were arguing in favor of a monopoly for the teaching of a “common,” pan-Protestant civic religion.

Ultimately, the Supreme Court made it clear that the teaching of Christian morality in government-funded public schools is unconstitutional. Since that time, educators have grappled with what many politicians and religious leaders view as the consequences of a secularized public school system, including youth anxiety, depression, substance abuse, violence, crime and trauma. To restore some semblance of moral formation in public schools, along the way, educators have called for in-school “civic education,” “values clarification,” “character education” and, lately, “social and emotional learning.” They have also facilitated “released time” for off-campus religious education and making available public-school classrooms on an after-school basis for youth groups engaged in the moral education of children.

Thus, as part of its deliberations in Espinoza, the court may consider whether reliance on Blaine Amendments is enabling states like Montana to engage in moral education that, to use Justice Clarence Thomas’ phrasing from the Supreme Court’s opinion in Good News Club v. Milford Central Schools, is not logically different in kind from the Christian moral education provided in the private religious schools in which Kendra Espinoza and the other petitioners are educating their children. Montana’s reliance on the Blaine Amendment to discriminate against Christian and other religious schools engaged in the moral education of students, in favor of the “social and emotional learning,” known as SEL, in which Montana public schools are engaging, raises serious First Amendment and equal protection concerns.

Montana public schools are teaching mental and behavioral health and social and emotional thoughts, beliefs, attitudes and practices to students in their classrooms all day, every day. In 1995, Montana developed the Montana Behavioral Initiative, which school officials describe as “a proactive approach in creating behavioral supports and a social culture that establishes social, emotional, and academic success for all students.” The MBI components are designed “to assist educators, parents, and other community members in developing the attitudes, skills, and systems necessary to ensure that each student, regardless of ability or disability, leaves public education and enters the community with social and academic competence.”

Further evidencing the natural, nontheistic (as opposed to supernatural, theistic) religious nature of SEL, in July 2016, the Montana Office of Public Instruction published the Montana Health Enhancement Standards Model Curriculum Guide for K-12 Health and Physical Education. For grades 9-12, the Montana Guide provides for the thorough inculcation of children in thoughts, beliefs, attitudes and practices pertaining to their mental and behavioral health, including their social and emotional well-being. The Performance Indicators and Health Goals applicable to students in grades 9-12 include many private and sensitive subjects about which parents have the primary right to teach their children. These include, but are not limited to, life skills, good character traits and behaviors, self-esteem, self-respect, social-emotional environment, societal norms and health, personal values and beliefs, responsible decision-making, building resistance skills, conflict avoidance, conflict resolution, mind-body connection, depression, loss and grief, co-dependence, marriage, parenting, sexual attitudes and conduct, friendship, mental health and disorders, suicide, adjusting to family changes, coping with stressful life changes and dating skills.

The recent transformation of K-12 public education from a purely academic undertaking into a holistic religious naturalist model for the social, emotional and academic training of students is a national phenomenon, in which most states are engaged. The Collaborative for Academic, Social, and Emotional Learning, a leading proponent of SEL across the country, has recognized five “core competencies” that schools should include in their SEL programs: self-awareness, self-management, social awareness, relationship skills and responsible decision-making.

The transformation is also a global trend, which the United Nations Educational, Scientific and Cultural Organization and its affiliated Mahatma Gandhi Institute of Education for Peace and Sustainable Development are leading. In order to “transform education for humanity”, the UNESCO-MGIEP programs “are designed to mainstream SEL in education systems, innovate digital pedagogies, and put youth as global citizens at the center of the 2030 agenda for Sustainable Development.”

In Good News Club, the Supreme Court held that denying the Good News Club, a Christian youth-development organization, after-school access to a public-school cafeteria constituted impermissible viewpoint discrimination against the “purely” religious approach the club took toward the moral and character education of children. Montana public school officials have determined that, throughout each school day, they will teach students mental and behavioral health and social and emotional thoughts, beliefs, attitudes and practices consistent with a religious naturalism. Yet, Montana is denying the petitioners equal access to a scholarship program funded by contributions for which taxpayers receive a state income-tax credit. In light of the court’s decision in Good News Club, Montana should not be able to discriminate against petitioners by denying them equal access to generally available K-12 student aid to communicate their preferred viewpoints about mental and behavioral health and social and emotional thoughts, beliefs, attitudes and practices to their children at the accredited nonpublic Christian schools of their choice. Hopefully, in Espinoza, the court will consider this unique, but critical, aspect of the case.

Posted in Espinoza v. Montana Department of Revenue, Featured, Symposium before oral argument in Espinoza v. Montana Department of Revenue

Recommended Citation: Jim Kelly, Symposium: Do Blaine Amendments create a public-school monopoly over moral education?, SCOTUSblog (Sep. 17, 2019, 10:56 AM), https://www.scotusblog.com/2019/09/symposium-do-blaine-amendments-create-a-public-school-monopoly-over-moral-education/