The Battle After Blaine

Courts across the United States have been chewing on various aspects of the constitutional debate surrounding educational choice for decades, and parental freedom has prevailed in the overwhelming majority of those cases. Now, the U.S. Supreme Court is primed to use the Espinoza v. MT Dept. of Revenue case to settle the largest and longest-standing legal debate related to K-12 scholarship programs: whether state constitutional Blaine Amendments can be used to deny scholarship families the ability to choose faith-based private schools.

But will that ruling be the end of the conversation? Not if the teachers unions have anything to say about. Today, we’ll take a look at a raft of ballot initiatives in Missouri designed to circumvent the anticipated anti-Blaine ruling in Espinoza.

Blaine Refresher

For those just tuning in, Blaine Amendments are state constitutional provisions forbidding aid to “sectarian” schools and institutions. More than three dozen state constitutions include some type of Blaine Amendment in their constitution. And because most K-12 scholarship programs typically include faith-based education providers, these provisions are very often used by the teachers unions and other opponents of K-12 scholarship programs to launch legal attacks under the guise of maintaining the “separation of church and state.”

In reality, Blaine Amendments have little to do with preserving American ideals. They are discriminatory relics rooted in politically charged anti-immigrant and anti-minority sentiment from the 1800s. Today, they are most often used to deny people and education providers of faith access to otherwise available public benefit programs—including K-12 scholarship programs.

The constitutionality of allowing faith-based schools to participate in public benefit programs is well established under the First Amendment (see here, here, and here). Whether these programs violate the “separation of church and state” articulated by opponents is not in question—they do not. Instead, the opposite question now stands before the U.S. Supreme Court: whether forbidding parents from using K-12 scholarships at faith-based schools violates those parents’ rights to religious freedom under the First Amendment.

Espinoza Ruling

The U.S. Supreme Court will hear oral arguments in the Espinoza case early next year. Following the U.S. Supreme Court’s 2017 Trinity Lutheran decision, it seems very likely that the justices will use Espinoza as a way to finally settle the Blaine argument once and for all. Indeed, ACE Scholarships joined dozens of other organizations in filing an amicus brief asking the court to do exactly that. 

A ruling that Blaine Amendments can no longer be used to discriminate against parents or schools of faith in K-12 scholarship programs would be the most important education-related ruling since Brown v. Board of Education in 1954. It would also settle a debate that has been raging for the better part of two centuries.

Missouri Initiatives

Proponents of parental freedom and choice in education are not the only ones watching Espinoza closely. And they’re not the only ones anticipating a broad ruling against Blaine Amendments as they have been applied thus far.

The national and state teachers unions, who most often launch and bankroll legal attacks against K-12 scholarship programs across the country, understand that Espinoza could be a watershed moment in American education. And they’re taking serious—and seriously sophisticated steps—to make sure that moment does not compromise their ability to maintain a stranglehold on education systems nationwide.

Enter Missouri, where the Missouri NEA, a state affiliate of the goliath National Education Association, has filed six 2020 ballot initiatives (2020-117 through 2020-122 on this list) designed specifically to circumvent the most likely legal rationale for the impending SCOTUS ruling in Espinoza.

Each of these initiatives is slightly different, and it’s not yet clear which, if any, will make it through signature gathering and onto the 2020 ballot. However, all of the initiatives frame themselves around the misleading language of “equitably and adequately” funding public education in Missouri. In reality, that laudable goal is a Trojan horse. The union’s real intent is to forbid the state of Missouri from ever adopting a K-12 scholarship program regardless of any ruling in Espinoza.

To that end, the initiatives seek to do three important things:

  • Sidestep a court ruling forbidding discrimination against people of faith by permanently forbidding any scholarships or other funding from going to any private school, religious or non-religious, in Missouri
  • Ignore prevailing legal logic and regulate tax-credit-incentivized private giving toward K-12 scholarships as public funds, thereby forbidding the state from ever adopting a scholarship tax credit program. These programs, which provide state tax credits for private contributions to nonprofits like ACE Scholarships, are extremely popular with the public on both sides of the aisle and currently serve nearly 300,000 students across 18 states. Courts have nearly universally held that private contributions to such programs, including those incentivized with tax credits, do not constitute public money and therefore cannot be easily challenged in court.
  • Grant standing to sue to parties traditionally found to lack such standing, including any taxpayers, public school student, or school district. In general, lawsuits against scholarship tax credit programs brought by these parties—nearly always at the behest and direction of the unions—are thrown out of court because the parties cannot demonstrate direct harm from private contributions to private nonprofits. In essence, the union is granting itself the eternal and unlimited ability to sue any K-12 scholarship program in Missouri.

What Now?

Any of these initiatives would have the effect of permanently blocking disadvantaged Missouri students from accessing high-quality private schools through a state K-12 scholarship program. If successful, they would also create a roadmap for unions and others who would like to see any SCOTUS ruling against Blaine Amendments undermined in their own states.

ACE Scholarships, which serves approximately 150 students in Kansas City, Missouri, filed a public comment with the Missouri Secretary of State asking that any language circulated in relation to these questions explicitly tell voters that they are designed to cripple educational opportunity, not to ensure “adequate and equitable” public school funding. A number of our Missouri partner schools and several other organizations also submitted comments.

Missouri’s initiative process is complex. If and when the petitions are approved for circulation, the Missouri NEA will have until May to collect signatures from eight percent of the legal voters in six of Missouri’s eight congressional districts. If they succeed, the initiatives would move the final phase of hearings before being officially placed on the ballot.

ACE will be watching these initiatives closely as they work their way through the system and participating in that process wherever possible. If you would like to learn more, please contact Ross Izard at



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