Court to decide: Can discriminatory law end education program?

Old anti-Catholic law being used to keep funding from low-income, special needs children

WASHINGTON, D.C. –  Nevada activist groups continue their quest to block low-income and special needs children from receiving a quality education by using an anti-Catholic law from the 19th century to shut down a Nevada program. In a brief filed yesterday, Becket urged the Nevada Supreme Court to protect the children and the religious schools they attend from discrimination.

In 2015 the state of Nevada created the Educational Savings Account (ESA) program, which allows parents to use a portion of their public school funds to pay for books, tutoring and tuition, in an effort to improve education for Nevada children -- especially low-income and special-needs children. However, activist groups including the ACLU want to end the program simply because children may come into contact with religion. To do this, the groups are using the state’s Blaine Amendment, a 19th century law rooted in anti-Catholic bigotry. Earlier this year a lower court dismissed the case but the ACLU appealed to the Supreme Court.

“Nevada can do better than relying on outdated, xenophobic laws,” said Lori Windham, senior counsel of the Becket Fund for Religious Liberty. “A law that was created to discriminate against Catholics long ago shouldn’t become an excuse to bar children from the education they need or discriminate against all religious schools today.”

Blaine Amendments were passed during a wave of anti-Catholic bigotry during the 19th century and were designed to keep Catholic organizations—including orphanages, schools and charities—from having access to public funds. Public schools at the time used Protestant prayers, lessons and Bible readings. Today, those laws are being used by the ACLU and other groups against any school that is “too religious.” Because parents might use their ESA funds at religious schools, the groups want the entire program shut down. Both uses of the Blaine Amendment run afoul of the Constitution’s ban of religious discrimination.

"Nevada's program is designed to help children, especially low-income and special-needs children," said Windham. "You shouldn't use a law that once shut down an orphanage program that help children today." 

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians.