The Amendments Were Named After James G. Blaine, a Former Speaker of the U.S. House Of

Washington, DC

June 8, 2007

Is School Choice a Civil Right?Last Friday, the U.S. Commission on Civil Rights held its first in a series of meetings on school choice. The commissioners considered the testimony of four witnesses who spoke about the constitutionality of the Blaine amendments, which are amendments to most state constitutions that prohibit state monies from funding educational institutions with religious affiliation. These amendments represent a strong barrier to traditional school choice programs, especially voucher programs.

The amendments were named after James G. Blaine, a former Speaker of the U.S. House of Representatives in the late 1800s. Acting out of nativist concerns regarding the large number of Catholic immigrants entering America, Blaine actively campaigned for states to amend their constitutions so that Catholics would not be able to found public schools in Catholic neighborhoods for the inferred purpose of teaching Catholic doctrine.

Anthony Picarello, vice-president and general counsel for the Becket Fund, and Dick Komer, senior litigation attorney for the Institute for Justice, believe the Blaine amendments are unconstitutional and want to see them repealed. K. Hollyn Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, and Ellen Johnson, president of American Atheists, strongly support the continued existence of the Blaine amendments.

The conclusion of the majority of the commissioners was that the issue of school choice was an important issue to be considered in light of the poor education much of the minority community receives in the American public school system. The commissioners also felt the commission needed to hear from historians as well as lawyers regarding the motivation for the Blaine amendments.

Good Idea in Georgia: Recently, Georgia Governor Sonny Perdue signed into law legislation that allows parents with children who have special needs to choose their children’s school, whether it be public or private.The Georgia Special Needs Scholarship Program grants scholarships to disabled students who are currently in public schools and who are also entitled to receive special education services.

Chip Mellor, president and general counsel for the Institute for Justice, believes “Georgia has enacted a common-sense solution to meeting the educational needs of families with special needs children: letting parents, rather than bureaucrats, decide what is best. Choosing something as important as your child’s school should be a fundamental right, and we will vigorously defend this parental choice program against any legal challenge.”

Although opponents of the school choice bill have sought an injunction against the program, another Institute for Justice attorney, Bert Gall, contends “the Georgia Special Needs Scholarship Program is clearly constitutional under both the Georgia and U.S. Constitutions, and we are confident that any legal challenge will fail. The education provisions of the Georgia Constitution specifically authorize the educational scholarships, and Georgia has a number of other similar scholarship programs, including the Hope Scholarship Program.”

House Stem-Cell Showdown:Yesterday, the House passed S. 5, the “StemCell Research Enhancement Act of 2007.” The bill encourages the destruction of human embryos for research purposes.

The vote tally was 247-176, two more votes in support of the pro-life position than the last time the legislation was voted on. The original vote in January was 253-174. Unfortunately, the change in votes was due to absentees and deaths, not changes in position by Representatives.

The bill already passed the Senate by 63-34. The bill will now be sent to the President’s desk. He has ten days to veto it, and he has said that he will. The vote margin in the House prevents the House from overriding the veto.

Unfortunate Decision for the FCC: This week, the U.S. Court of Appeals for the Second Circuit ruled that the U.S. Federal Communications Commission’s (FCC) new federal standard defining indecency was “arbitrary and capricious.”

The new standard, issued by the FCC in March 2006 after a televised program in which two performers uttered obscenities on air, stated that no longer would “fleeting expletives” be allowed to be broadcast

Previous opinions by FCC staff had allowed networks to escape stiff FCC fines if the expletives were “uttered fleetingly.” But under Kevin Martin, the current FCC Chairman, the FCC board has changed its opinion.

Fox, the network who aired the program at issue,sued the FCC, arguing that the decency code was unclear and that their free speech rights were being violated.

Republican FCC Chairman Kevin Martin said that he found it “hard to believe that the New York court would tell American families that [two obscenities] are fine to say on broadcast television during the hours when children are most likely to be in the audience.”

“If we can’t restrict the use (of the two obscenities) during prime time, Hollywood will be able to say anything they want, whenever they want,” Martin said in a statement.

-The Washington Flyer Staff Writer: Jennifer Groover

-The Washington Flyer Editor: Maureen Wiebe