In the wake of the Supreme Court's decision that educational
vouchers do not violate the U.S. Constitution, attention is
turning to the states, where most of the actual voucher
programs to be proposed will be crafted.
It is widely believed that a major obstacle to such programs
consists of what are known as "Blaine Amendments" -- clauses
added to a number of state constitutions in the late 1800s
and early 1900s that broadly forbid use of government funds
in the service of religious institutions.
They are named after U.S. Congressman James G. Blaine, who
sought in the 1870s to similarly amend the U.S. Constitution,
an effort that failed. All the same, as many as 35 states
have constitutional provisions that will likely be invoked by
voucher opponents as preventing school choice programs.
New York's Blaine Amendment, which prohibits state aid to
religious schools "directly or indirectly," is widely
perceived to be one of the most restrictive of such
provisions; and many "experts" have been quoted in the media
to the effect that any voucher program in New York would be
shot down under the state constitution.
Not so, say Agudath Israel's executive vice president for
government and public affairs Chaim Dovid Zwiebel and
associate general counsel Mordechai Biser. "The 'experts' are
wrong; they are ignoring clear legal precedent. The Blaine
Amendment is no barrier to vouchers in New York State."
The Agudath Israel attorneys made their point in a legal
memorandum addressed to New York's Governor George Pataki,
Senate Majority Leader Joseph Bruno, Assembly Speaker Sheldon
Silver and several other state officials who will be
deciding, in the months ahead, whether to promote a voucher
program in the Empire State.
The memo relies heavily on a decision by the state's highest
court in 1967 -- the last time New York's Court of Appeals
had occasion to interpret the state's Blaine Amendment -- in
which New York's textbook assistance program was upheld
against constitutional attack.
Despite the fact that children in religious schools across
the state benefited from the textbook program no less than
children in public schools, the court ruled that there was no
violation of the Blaine Amendment "since there is no
intention to assist parochial schools as such."
This decision, the Agudath Israel memo contends, would be
directly applicable to any voucher program, since such
programs' purpose is not "to assist parochial schools as
such," but rather to help parents by maximizing their range
of educational options. "So long as the range of options
includes both religious and non- religious entities, and so
long as there is no special incentive for parents to choose
the religious option," the Blaine Amendment is not
offended.
Rabbi Biser notes that Agudath Israel representatives are
already busy in other states across the country as well,
working with local voucher proponents to devise acceptable
proposals in their respective jurisdictions. These efforts
have attracted substantial notice, as in Chicago where a
meeting among various voucher proponents convened by Agudath
Israel Midwest director Yechiel Kalish was reported
prominently in the Chicago Tribune.
"The Supreme Court gave our cause a major victory," reflects
Rabbi Biser, "and now our work really begins."
