Education vouchers would violate state constitution

by Robert Speel

There is another movement afoot in the General Assembly to establish a school voucher program in Pennsylvania. It would allow low-income students in poorly performing public schools to use their school’s per-pupil state subsidy as a voucher to attend a private school, including sectarian schools run by religious groups.


There is debate about whether school vouchers are sound public policy. But the state constitution is clear: School vouchers for religious schools are unconstitutional in Pennsylvania unless the constitution is amended.

According to the state constitution, “no money raised for the support of the public schools of the commonwealth shall be appropriated to or used for the support of any sectarian school.” This clause, known as a Blaine Amendment, is cited in the part of the constitution that describes the powers of the General Assembly and therefore is intended as a direct limit on state government. The Blaine Amendments are named for former congressman James Blaine of Maine, who was the GOP presidential candidate in 1884.

In 1875, Blaine proposed a federal constitutional amendment similar in wording to that in the current state constitution. The federal amendment passed the House of Representatives easily, but failed to achieve two-thirds support in the Senate. Following that failure, a majority of states, including Pennsylvania, added such amendments to their state constitutions.

Part of the motivation behind the Blaine Amendments was anti-Catholic attitudes among Protestants at a time of increased Catholic immigration to the United States. For this reason, perhaps the Blaine Amendment here should be reconsidered. However, a state constitutional amendment would require approval by voters, something that supporters of school vouchers in the state might want to avoid.

California and Michigan voters have rejected school voucher systems proposed through voter initiatives on the ballot. After the Utah state Legislature approved school vouchers in 2007, voters overturned the law in a ballot measure. In Florida and Colorado, their state Supreme Courts ruled that school voucher systems were a violation of the state constitutions, both of which contain Blaine Amendments.

Today, the only states that have similar programs to what is being proposed for Pennsylvania are Wisconsin, Ohio and Louisiana. The Blaine Amendments in the Wisconsin and Ohio state constitutions have different wording than that found in Pennsylvania’s — allowing their courts to uphold school voucher programs. Louisiana’s constitution has no Blaine Amendment.

The state constitution has not always stopped the General Assembly in the past. Legislators in Harrisburg in the 1980s, 1990s and, most recently, in 2005, voted themselves an immediate pay raise in direct violation of the state constitution.

Nevertheless, state courts upheld the pay increase laws, which also included pay raises for state judges, but voters issued a different verdict in 2006 by voting out several incumbent legislators who had approved the unconstitutional pay increase.

Pennsylvania is not the only government that sometimes ignores its constitution. At the federal level, the constitutional requirement for Congress to declare war before presidents send American troops overseas into harm’s way has long been abandoned.

The Fourth Amendment’s requirement that police get a warrant issued by a judge when presented with probable clause in order to search homes and property has been ignored in legislation such as the Patriot Act.

Most famously, the U.S. Supreme Court during World War II upheld the federal government’s program to deprive U.S. citizens of Japanese ancestry of their liberty and property without due process of law as required by the Fifth Amendment. More recently, some have questioned President Obama’s view that forcing all Americans to purchase private health insurance is constitutionally permitted through Congress’s power to regulate interstate commerce.

In my Introduction to American National Government course, I explain to students that constitutions have three basic functions. Constitutions set up a government, they say what a government can do, and they say what a government cannot do.

The Pennsylvania Constitution says that taxpayer money raised for public schools cannot be used to support religious schools. Our legislators in Harrisburg must acknowledge that in their attempts to create a school voucher program.

Robert Speel, Ph.D., is an associate professor of political science at Penn State Behrend.