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By Jon A. Jacobsen, JD
(Past Schools’ Board President, Past College Adjunct Instructor, Past Educational Endowment Committee Board Member)

Author William “Bill” Donohue, JD, has outlined excellent commentary on School Choice and the US Supreme Court landmark Espinoza opinion issued by Chief Justice John Roberts.

The US Supreme Court ruled in a latter-2020 Montana case that a School Choice effort allowing students to be beneficiaries of a tax-credit scholarship program, may apply equally to students of religious schools, and are Constitutional. The state program, financed via private donors, is voluntary, offering participants a tax credit of a dollar-for-dollar. 

“In 2015, in order ‘to provide parental and student choice in education’ from grades K–12, Montana’s Legislature enacted legislation providing a small tax credit of up to $150 for individuals or businesses donating to private, nonprofit scholarship organizations that award scholarships for children to attend private schools, a program similar to those in 18 states. However, Montana’s Department of Revenue quickly issued a rule forbidding recipients from using their scholarships at religious schools. The department said this was required by the Blaine Amendment quoted above. Montana’s Supreme Court (had) upheld this rule, which cripples an organization called Big Sky Scholarships.” (G. Will, National Review.)

“This organization formed to receive and distribute funding targeted exclusively to low-income families and children with disabilities. One of the petitioners seeking a U.S. Supreme Court hearing (was) Kendra Espinoza, an office assistant and single mother who took a second job, as a janitor, to help pay her two daughters’ tuition at a nondenominational — not a Catholic — school. Without a Big Sky scholarship, her daughters (would) likely have to leave their school. As might the adopted daughter (from China) of another petitioner, Jeri Anderson.”  Ibid. 

“The petitioners argued in Montana’s Supreme Court that the Blaine Amendment is not applicable to Big Sky scholarships because it applies only to public funds, not private donations, which are not transformed into public funds merely because they — like most charitable contributions — are incentivized by a provision of the tax code. Furthermore, the money comes to religious schools not as ‘aid’ from a state institution but from parents choosing those schools from a number of options. They also argued that making religious schools ineligible for funds such as Big Sky’s would implicate both the U.S. Constitution’s guarantee of the ‘free exercise’ of religion and the ‘equal protection of the laws.’” Ibid. 

Roberts indicated no state must subsidize non-government schools, but if it were to do so, “it cannot disqualify some private schools solely because they are religious.”

The Montana statute was litigated because the state ignored its own prior antiquated Blaine Amendment that denied  any state funds for schools with a religious identity. Embarrassingly, Blaine was a Republican. 

The Montana Blaine amendment  language pretext for targeted anti-religious discrimination was cloaked as follows…”(t)here shall be no ‘direct or indirect appropriation or payment’ of public monies ‘for any sectarian purpose’ or to aid any institution ‘controlled in whole or in part by any church, sect, or denomination.’“ (G. Will, National Review.)

As indicated by Donahue’a publication from Catholic League, “(t)he original Blaine Amendment, named after Rep. James Blaine (Republican) of Maine, was proposed in 1876, but was never passed at the federal level. It did, however, prevail in the states. Montana is one of 37 states that has this amendment in its constitution.”

“The Blaine Amendment was rooted in anti-Catholic bigotry. It was designed to force Catholic students to attend public schools, which at the time required students to embrace Protestant teachings and practices.” (W. Donahue Ibid.) Iowa had pre-Blaine, Blaine-type language etched in its original Constitution, still intact [though unconstitutional], to this very day.

The 2020 Espinoza ruling is not a panacea to solve all school choice matters. However, it ends the stranglehold on education held by the government school monopoly for well over a century and a half. 

The opinion was decried by government monopoly socialists who hate the free market enterprise economy of competition and choice—including, unbelievably, a hatred even of charter public schools.

It is this State Representative’s opinion that too many members of the de facto uniparty and other allies including even the Ku Klux Klan, often are virulently against giving impoverished minority children the identically same School Choice alternatives afforded to affluent whites. 

“In 1922, the Klan succeeded in pushing for an Oregon law that forced every child to attend a public school. Three years later, in Pierce v. Society of Sisters, it lost, in a unanimous decision, in the Supreme Court.” (W. Donahue Ibid.)

Of note: The Democratic National Convention of 1924 was infamously known as the “Klanbake” Convention in NYC, as so many DNC Klan delegates and supporters traveled and encamped so as to deny Al Smith the Democratic nomination. A year later, Klansmen marched by the thousands on the Capitol in DC. In these years, also, the KKK did not want the U.S. to intervene against the murderous persecution campaign conducted by Mexico’s despot Plutarcho Calles. The KKK was against Republican President Coolidge’s acting in any way upon any Coolidge empathy for commercial and religious freedom in Mexico. 

The 2020 Espinoza opinion may usher in a new era against the remnants of Iowa’s early and ongoing history of targeted anti-religious bigotry, and it is a promising new era for minority student children, for all fellow Christians and Jews of various denominations, and truly an era of true distributive justice for men and women of all faiths, as well as all men and women of goodwill—and also including student children with Special Needs. 

As one distinguished religious school educator has indicated: “I taught many special needs students in my 30 years of teaching—numerous forms of dyslexia, diagnosed autistic, reading and math disabled, behavior disorders, and emotional issues. We also have taught special needs kids, who came from government public school special needs programs where students were failing there.”

“Let’s face it. Education is seeing more special needs children than ever before. So-called ‘Public’ government schools do not have the corner on the market.  So-called ‘Private’ religious-identity schools now have those students as well, along with those resources and needs.”

Continuing, the educator notes: “Whoever says ‘Private’ (Religious Identity) schools don’t teach and often better meet the needs of Special Education students—has never been in a ‘Private’ school.”

The irony, of course, is that ‘Private’ religious schools do not discriminate against Any One, regardless of race or creed, and often are more ‘Public’ and diverse than the so-called ‘Public’ government schools.

Do you believe in enterprise run completely and exclusively by a single government monopoly? Or do you believe in at least an incremental modicum of free market enterprise choice resulting from some competition? If you believe in the latter, you almost certainly are a conservative in 2021. You would not be a Democrat. You would be a Republican or Independent. However, even in 2021, some in the GOP remain obstinate—highly reluctant to vote to overturn in a significant, threshold-issue way, the shameful effects of Republican Blaine-type history of the 19th century. 

Espinoza frees up options—but not necessarily involving any sort of so-called “voucher” remedy, despite histrionics from the Left. Alternative free market enterprise competitive educational reforms need not even involve touching so much as a dollar of monies already appropriated in education budgets, either in districts or statewide. The promising School Tuition Organization (STO) infrastructure already in place touches not one cent, not a penny, in any way, shape, or form, of standing Iowa education spending appropriations, and would greatly help impoverished minority children if further enhanced  and incentivized. STO concepts are used throughout the nation for Catholic, Lutheran, Reformed, Episcopalian, and Jewish schools, to mention just some. 

In any event, it is now settled law by the US Supreme Court that the Free Exercise of Religion Clause in the First Amendment of the US Constitution crushes, demolishing once and for all, the Bigotry of Iowa’s pre-Blaine, Blaine-type laws sadly enshrined, unconstitutionally, in Iowa’s Constitution since Statehood in 1846–and up and to this very day. 

At the very least, Iowa should repeal its now illegal pre-Blaine, Blaine-type, unconstitutional language still embedded in Iowa’s Constitution. 

Author: Jon Jacobsen, B.S.B.A., J.D.

Rep. Jon A. Jacobsen, J.D. (R-Council Bluffs), is newly re-elected member of the Iowa Legislature, as Iowa State Representative from District 22 (Pottawattamie County). Jacobsen serves in the House as Vice-Chairman of the Commerce Committee, Vice-Chairman of the Ethics Committee, and in addition is seated on the State Government and Agriculture Appropriations Committees. Jon won his 2016 election by the largest percentage margin of votes in modern district history, engendering a huge voter turnout of nearly 75% of all registered district voters for a mid-term, non-Senate cycle. A married father of three, Jon is a bank senior trust officer/vice president, attorney (Univ. of Iowa Law alumnus), and has won a dozen Iowa Broadcast News Association Awards for Radio programming, including for Political Coverage, Public Affairs, In-Depth Series, Feature, and Overall Best Use of Online Media.