By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project
Yesterday, the New York City Council voted to use $19.8 million in city funds to pay for security guards for private and parochial schools. This channeling of taxpayer dollars to religious schools seems as though it should raise a conflict with Art. XI, § 3 of the New York Constitution, commonly known as the “Blaine Amendment.”
The Blaine Amendment states:
“Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught…”
This prohibition on using public money to support religious schools seems both broad and clear on its face, but has nevertheless been narrowed through case law, most notably the 1967 case Board of Education v. Allen. In Allen, the Court of Appeals upheld a program requiring “all school boards to purchase and to loan textbooks on an equitable basis to all pupils residing in the school district who are attending … any public or nonpublic school.” (emphasis added).
In the face of a Blaine Amendment challenge, the Court of Appeals—New York’s highest court— found that the book loan program had “no intention to assist parochial schools as such,” but was rather “meant to bestow a public benefit upon all school children, regardless of their school affiliations.” Holding that “not every State action which might entail some ultimate benefit to parochial schools is proscribed,” it found the program constitutional. In contrast, a 1970 trial court case, Iona College v. Nyquist, found that a direct financial grant to Iona College, a Catholic institution, did violate the Blaine Amendment.
Decades later, a 2002 report by then-New York Attorney General Eliot Spitzer analyzed various proposed aid programs to non-public schools. The report argued that programs in which the “primary beneficiaries… are the students in both public and non-public schools, not the schools those students attend,” do not violate the Blaine Amendment. It stressed that it was “constitutionally significant for purposes of the Blaine Amendment that the textbook statute upheld in Board of Educ. V. Allen…provided that secular textbooks be loaned to the children enrolled in schools, not to the schools themselves.”
The bill recently passed by the City Council seems to provide a substantial financial benefit directly to parochial schools rather than to students, and may thereby violate the Blaine Amendment. On the other hand, the hiring of security guards is intended to benefit students in all schools, rather than being simply a direct financial grant to a parochial school. If a court were to find no Blaine Amendment violation on that basis, then what type of grant would possibly be considered impermissible, apart from perhaps a direct unrestricted financial grant? Any grant to a not-for-profit religious school will in some way benefits its students. Should a challenge to this bill arise and reach the Court of Appeals, the Court should take the opportunity to salvage the Blaine Amendment and ensure that taxpayer funds are not used to subsidize religious education.