The Blaine Truth: How an obscure historical Nativism could (but doesn’t have to) undo school choice

OKLAHOMA CITY – Legislation proposed in the 2016 session of the Oklahoma Legislature, which convened on February 1, would empower parents and guardians to access their education tax dollars for uses they deem fit. 

Building on existing programs such as the Lindsay Nicole Henry Scholarships, which allow use of education tax dollars to assist special needs children, new legislation from state Rep. Jason Nelson, R-Oklahoma City, and Sen. Clark Jolley, R-Edmond, would allow parents to access, with limited parameters, any approved institution or program they consider best for their children.

Oklahoma City University Law Professor Andrew Spiropoulos said that the Nelson-Jolley legislation, and other programs for school choice, could run afoul of the legal rationale underlying the controversial state Supreme Court decision concerning the Decalogue (Ten Commandments), which a range of legal scholars have long deemed the root of Western law as rooted in the Judeo-Christian tradition. 
In a February 4 speech before the Oklahoma School Choice coalition, Spiropoulos reflected on the anti-establishment and anti-elite spirit which has animated so much of the presidential politics of 2016. He brought the situation home to the Sooner State in this way: 
“We hear a lot about popular anger at the elites. The state Supreme Court was surprised and its defenders were surprised at the popular reaction to the Ten Commandments decision. That’s interesting because a lot of us were surprised that the elites were surprised.” 
Examining the implications of the state Supreme Court’s edict issued last June, the constitutional law analyst said that the state justices’ use of long-dormant language in the Oklahoma constitution to slap down the Capitol Ten Commandments monument puts at risk a wide range of public programs benefiting diverse individuals.

(“Blaine” provisions in Oklahoma’s state constitution owe little to the language of the U.S. Constitution or the Bill of Rights. Named for James G. Blaine, a “Nativist” who wanted to reshape the First Amendment in his own anti-Catholic image during the Nineteenth Century, versions of it were adopted into state constitutions across the nation, including in Oklahoma. However, his proposed federal amendment failed.)
While federal courts have in recent years steadily eroded anti-school-choice rationales under federal law — saying that well-designed programs to benefit individuals rather than institutions can withstand judicial scrutiny in education and other areas — in some states the Blaine legacy is being used to impede school choice programs.
Prof. Spiropoulos reached several bold conclusions while delivering a wide-ranging analysis of American – and Oklahoma – law. He argued passionately that to assure the rights of parents to raise their children as they deem best, Education Savings Accounts (ESAs) have become indispensable.

The professor’s address was entitled, “A Mosaic of Opinions: The Ten Commandments and Educational Choice.” 
While different versions of ESAs from the pair sponsors kicked off the Legislature, the reform can be described as a means though which students eligible for free or reduced-price lunches under federal guidelines might receive up to a set amount (less than 100 percent) of funding that would have supported their child’s education if they were placed in a public school. Families with higher incomes could benefit, but on a declining scale.  
Parents in the ESA program might receive debit cards or some other mechanism, the use of which would be limited to a state-approved list of institutions or vendors. The benefit flows to students and parents, not to institutions.
In his address at the Advance Center for Enterprise, meeting facility of the Oklahoma Council of Public Affairs, Spiropoulos told members of the coalition – and several guests, including some opponents of parental choice – “ESAs would allow a gift that until now has been reserved for the wealthy.”
Spiropoulos said to this reporter, “To satisfy the popular demand for traditional education, I cannot think of any public policy that has as good a chance to stem the tide of cultural decay than ESAs.”
ESAs, Spiropoulos declared, bring “empowerment of those without great resources. In times of economic strain especially, ESAs are easy to understand. Thousands of dollars that would otherwise be spent contrary to your values can be spent in ways that support those values.”
He continued, “ESAs empower individuals, not institutions, so they have the best chance of being sustained” in the process of judicial review.
Speaking to the broad spectrum of conservatives, libertarians and others sensitive to human liberty, he contended, “We need to unite … around this reform.” 
As for the U.S. Supreme Court, despite his jabs at certain precedents of recent decades, Spiropoulos says he is among analysts who “can count five votes at the U.S. Supreme Court for repealing the ‘endorsement’ argument” (a rationale that contends public institutions cannot prefer religion over irreligion).
However, he said, “In the long run it seems unlikely the court will allow religious consensus to guide public policy or to be taught in public schools.”
Sadly, “We can never go back. There is now no consensus on morality, there is polarization. The public schools will not be allowed, cannot go choose to go back. 
“So what can we do? We have to accept that our principals and standards cannot any longer be conveyed through public schools.”
Pointing to the institution where he sends his own children, Spiropoulos said, “There is no substitute for having a school clothed with morality and ethics, a place where spiritual values pervade the school.”
He concluded, “Through the power of money and of the purse, people are (without ESAs) economically coerced to send their kids to schools that support values contrary to their own. So, the ESAs are essential.” 
To be clear, he said, “We must continue to support those who seek to make schools, including public schools, the best place they can possibly be. And, we must recognize that the Blaine Amendment cannot be reconciled with the First Amendment.”
He reasoned, “The [judicial] precedent in Oklahoma is that a service provided directly to recipients is allowed as a matter of their choice.”
However, Spiropoulos is worried because the state jurists have for more than a year “sat” on a case involving the Lindsay Nicole Henry Special Needs Scholarships, which clearly allow parents to access educational services, even at faith-based institutions.
The delay in rendering a decision on the Henry Scholarhips comes as levels of the Oklahoma judiciary are fighting among themselves.
Presently, as Spiropoulos pointed out, the state Supreme Court is “poaching” on the turf of the Court of Criminal Appeals because of disagreements over jurisdiction and legal results.

It’s no surprise that the struggle over the role of the judiciary is not limited to philosophers of the right or left, or among advocates of federalism or an “evolving” constitution, but is unfolding within the judiciary itself.