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Tangled debate: 'School-choice' amendment would undo provision written into constitution at statehood

Michelle Theriault Boots

For as long as Alaska has been a state, its constitution has forbidden directly funding private and religious schools with public money.

Today, an effort is under way in the Legislature to strike 20 words from the constitution -- "No money shall be paid from public funds for the direct benefit of any religious or other private educational institution" -- eliminating the biggest legal roadblock to a voucher system.

To change the constitution, two-thirds of lawmakers in each house would have to approve it -- then voters would have to agree.

If they did, Alaska would become the second state in the nation to repeal its provision against public money in private education, after Louisiana, where voters removed such language from their constitution in 1973.

A LONG HISTORY

Alaska has lots of company in enshrining the separation of church and state in its founding document.

Thirty-seven states in total have what are collectively known as "Blaine Amendments," according to Rob Boston of Americans United for Separation of Church and State, an advocacy group that has fought state attempts to do away with such provisions.

The history reaches back to the 1870s, when three-time presidential candidate and U.S. Senator James G. Blaine proposed amending the U.S. Constitution to prohibit states from funding religious education.

Blaine's effort failed.

But afterward, many states began passing their own "Blaine Amendments," also sometimes called "no-aid provisions."

Some states, like Massachusetts, had similar language in their constitutions long before Blaine was around, Boston said.

In the post-Civil War era, public education for the masses was becoming more common in states and the role of religion in public schools was a subject of heated debate, Boston said.

"People tend to forget that for a long time there was no public education," he said.

At the time, schools often led students in Protestant but not Catholic prayers, said Ira Lupu, a constitutional law expert who teaches at The George Washington University School of Law.

As more Catholics immigrated, pressure began to mount for public funding of parochial schools.

So did widespread backlash over increased Catholic immigration, scholars say.

But that's not the entire context of the amendments, Lupu said.

"It was part of a broader philosophy to keep sectarian and therefore divisive religion out of schools."

Today, some of the strongest critics of no-aid amendments are Catholic organizations.

"Blaine Amendments, which were inserted into state constitutions as a result of nativist, anti-Catholic bigotry, remain one of the biggest obstacles to true school choice," wrote Matthew Gelchion of the Alliance for Catholic Education.

For a time, the federal government required prospective states to add such amendments to their constitutions as a condition of entering the union.

"It became kind of standard," Lupu said. "When new states came in to the union, this would be boilerplate. It was one of the things Congress expected from Western territories."

'MODERN' CONSTITUTION

By the time of Alaska's constitutional convention in 1955, language barring public money in private schools was included in most Western state constitutions.

Voucher proponents have claimed that Alaska was forced by the federal government to include a no-aid provision in its constitution as a condition for statehood. Alaska's no-aid provision is another example of government overreach in Alaska's affairs, they say.

Vic Fischer, an elected delegate to Alaska's constitutional convention, says a Blaine Amendment wasn't a requirement for becoming a state, but delegates looked at other state constitutions as a model. And virtually all of the delegates agreed that it was a good idea.

"It was essentially non-controversial," Fischer said.

There was one point of disagreement, he said: Whether to bar money for the "direct benefit" of private education, or broaden it to "indirect benefit," too.

That might include things like publicly-paid school lunches for children attending private schools, or transportation.

"If anything the delegates wanted to make it even stronger," Fischer said.

Despite Nenana delegate Jack Coghill's proposal to insert the "indirect" language, the delegates settled on "direct benefit."

Today, Coghill's son Sen. John Coghill of North Pole is taking the opposite position: He is now among the sponsors of a bill to repeal the no-aid provision.

Alaska courts have since interpreted the state's existing no-aid provision broadly. .

In the 1979 case Sheldon Jackson College vs. State of Alaska, the Alaska Supreme Court ruled that giving students tuition grants to pay for religious or private schools violated the constitution, finding that there is no distinction between giving money to a student and giving money to a school directly.

"Alaska courts have rejected the distinction between aiding students and aiding the institutions those students choose to attend," according to state-by-state analysis published by the American Legislative Exchange Council, a conservative think-tank that champions the "school choice" movement.

So far, voucher programs have grown in states where the amendment was loosely interpreted by the court, like Wisconsin, or in places that never banned public money to pay for private education to begin with.

Reach Michelle Theriault Boots at mtheriault@adn.com or 257-4344.

 


By MICHELLE THERIAULT BOOTS
mtheriault@adn.com