Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, July 26, 2014

One Response to Michael about Blaine Amendments

Michael, you raise a good question about whether Blaine Amendments might be a "blessing in disguise" because they--albeit "unintentionally"--"shield many primary and secondary schools" from the choice to "capitulate to the secular orthodoxy or ween yourself from the government teat."

These are hard questions for schools. In a paper for a conference in Rome a few years ago, I presented various considerations, including the possibility that "withholding state financing to religious schools can affect their integrity and vitality as much or more as providing funds with conditions and controls attached":

When religious schools are denied financing while state [and secular private] schools receive it, parents face powerful financial disincentives against choosing religious schools for their children. To overcome that disadvantage, religious schools may have to change their programs to attract more donations, more applications, or more full-tuition-paying students instead of low-income students—all of which may compromise the school’s mission to teach the faith or educate the poor. Or schools may have to close altogether. Early in 2009, American newspapers reported that four Catholic secondary schools in New York City had been forced by fiscal necessity to join the state system as so-called charter schools. The change would permit them to receive funds but would require them to eliminate their religious components entirely, not just in selected classes as Supreme Court decisions like Lemon had required.

So I have a few reactions to your question:

1. To preserve their ability to choose their mission, Catholics and other religious groups should certainly try to increase their schools' financial independence so they are less exposed to the difficult choice of taking aid with strings or losing equal aid.

2. Nevertheless, whether the schools' integrity and vitality will be more threatened by taking aid or losing it depends on the situation, and on the kind of strings. Therefore, parents and schools should have the choice, even if the state has structured it as less than ideal. Blaine Amendments wrongly take the choice away from them.

3. If the societal opposition to Catholic or other religious doctrines and policies is so strong, it may not stop at putting strings on funding. Catholic and evangelical schools that violate antidiscrimination norms may face damages awards and fines even if they don't receive funding. Catholic schools have to figure out how to respond to that problem, entirely apart from Blaine Amendments.

(This sets aside, of course, the argument that secular regulation, such as nondiscrimination law, may sometimes actually push a school toward a better position even under Catholic teaching properly understood--the discrimination may be "unjust." But obviously how to understand Catholic teaching is for the school and religious leaders to decide, not the state.)

https://mirrorofjustice.blogs.com/mirrorofjustice/2014/07/one-response-to-michael-about-blaine-amendments.html

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