Amicus Curiae Brief — Jill Hile, et al., Petitioners v. Michigan, et al.

No. 23-1084

In the Supreme Court of the United States

JILL HILE, ET AL.,

Petitioners,

v.

MICHIGAN, ET AL.

On Petition for Writ of Certiorari

to the United States Courts of Appeals

for the Sixth Circuit

BRIEF OF PROTECT THE FIRST

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

ANNIKA BOONE BARKDULL*

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTRODUCTION, SUMMARY AND

INTEREST OF AMICUS CURIAE ......................... 1

STATEMENT ............................................................... 2

REASONS FOR GRANTING THE PETITION.......... 3

I.

II.

School Choice Programs Promote Educational

Pluralism and Allow Parents To Exercise

Their First Amendment Right To Educate

Their Children Consistent With Their Beliefs

and Values. ........................................................... 3

A.

Many Families Choose Religious

Schools for Their Children’s

Instruction. .............................................. 4

B.

Educational Pluralism Benefits

Those Who Seek an Education

Consistent With Their Values. ............... 7

Michigan’s Blaine Amendment Mirrors Other

Blaine Amendments in its Discriminatory

Intent. ................................................................... 9

III. Many States Have Adopted Facially Neutral

Funding Prohibitions That Were in Fact

Motivated by and Serve Religious Animus. ..... 15

CONCLUSION ........................................................... 22

TABLE OF AUTHORITIES

Cases

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993) .......................................... 10, 17

Council of Orgs. & Others for Educ. About

Parochiaid, Inc. v. Engler,

566 N.W.2d 208, 220 (Mich. 1997) .......................... 2

Espinoza v. Montana Dep't of Revenue,

591 U.S. 464 (2020) ................................................ 10

Masterpiece Cakeshop, Ltd. v. Colorado C.R.

Comm'n,

584 U.S. 617 (2018) ............................................... 10

Meyer v. Nebraska,

262 U.S. 390 (1923) .............................................. 3, 4

Mitchell v. Helms,

530 U.S. 793 (2000) ............................................ 9, 10

Moses v. Ruszkowski,

458 P.3d 406 (N.M. 2018)................................. 16, 17

Pierce v. Society of the Sisters of the Holy

Names of Jesus & Mary,

268 U.S. 510 (1925) ............................................ 3, 18

Traverse City Sch. Dist. v. Attorney Gen.,

185 N.W.2d 9 (Mich. 1971) .............................. 11, 14

Village of Arlington Heights v. Metropolitan

Housing Development Corp.,

429 U.S. 252 (1977) .......................................... 10, 14

ii

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .................................................. 4

Westchester Day Sch. v. Vill. of Mamaroneck,

417 F. Supp. 2d 477 (S.D.N.Y. 2006) ...................... 6

Wisconsin v. Yoder,

406 U.S. 205 (1972) .............................................. 4, 7

Constitutional Provisions

Alaska Const. art. VII, § 1 ......................................... 17

Mich. Const. Article VIII, § 2 ...................................... 2

New Mexico Const. art. XII, § 3 ................................ 17

South Carolina Const. art. XI, § 4.1 .......................... 19

Brief

Br. of Amicus Curiae Jewish Coalition of

Religious Liberty in Support of Petitioners,

Espinoza v. Montana Dep’t of Revenue, 140

S. Ct. 2246 (2020) (No. 18-1195) .............................. 6

Other Authorities

Alaska Const. Convention ......................................... 18

Avery Institute History, Avery Inst. .......................... 21

Letter from Moishe Bane, Pres, Orthodox

Union Advocacy Center, to Dr. Christina

Coughlin, N.Y. Educ. Dept. (Aug. 28, 2019) ........... 6

Brother Rice High School, Home Page ........................ 8

Devyani Chhetri,

This week in SC politics: Lawmakers pave

way to fund religious schools with public

money, Greenville News (Mar. 6, 2023) ................ 22

1983 Codex Iuris Canonici........................................... 4

iii

Joseph Cook,

Romish Schools, The Abbeville Press and

Banner, September 19, 1888 ................................. 20

Diana L. Eck,

Muslim in America, Religion Online (2001) ....... 5, 6

Dianna Everett,

The Public School Debate in New Mexico:

1850-1891, 26 Ariz. and the West (1984) ........ 15, 16

Letter of Senator James Fleming to Dr.

Charles T. Vear, Michigan Area United

Methodist Church, (May 9, 1969) .................... 13, 14

Frankel Jewish Academy, Mission & Core

Values........................................................................ 8

Nicole Stelle Garnett & Daniel T. Judge,

Ending the Shame of Blaine, Real Clear

Policy (May 20, 2021) ............................................. 19

Grand Rapids Christian Schools, Spanish

Immersion ................................................................. 7

Greenhills School, About ............................................. 7

Kathleen Holscher,

Religious Lessons: Catholic Sisters and the

Captured Schools Crisis in New Mexico

(2012) ...................................................................... 16

Muhsin S. Mahdi,

Islam, Britannica ..................................................... 6

Lewis K. McMillan,

Negro Higher Education in South Carolina

(1952) ...................................................................... 21

Mercy High School, Mission & Vision ........................ 9

iv

Michigan Chinese School, About Michigan

Chinese School .......................................................... 8

Michigan Islamic Academy, Mission, Goals,

and Values ................................................................ 8

Notre Dame Preparatory School, NDP at a

Glance ....................................................................... 9

Walther Oeland,

Letter to the Editor, Gaffney Ledger, August

20, 1896 ................................................................... 20

History, Penn Ctr. ...................................................... 21

South Carolina: Penn Center, Nat’l Park Serv. ........ 20

Otis Westbrook Pickett,

Neither Slave Nor Free: Interracial

Ecclesiastical Interaction In Presbyterian

Mission Churches From South Carolina To

Mississippi, 1818-1877 (2013) (Ph.D.

dissertation, University of Mississippi) ................ 21

Presbyterian Church U.S.A, What We Believe:

Education .................................................................. 5

Rudolf Steiner School of Ann Arbor, Waldorf

Education .................................................................. 8

S. 125, H. 3591 Joint Resolution, S.C. Legis.

(2023-2024) ............................................................. 21

Southern Baptist Convention, The Baptist

Faith and Message art. XII (June 14, 2000) ........... 5

The African American Odyssey: A Quest for

Full Citizenship, Library of Congress ................... 20

The Roeper School, Welcome to Roeper ....................... 7

v

Andrew Thurston,

Inside Islamic Schools, The Brink (April 26,

2016).......................................................................... 6

Vatican Council II, Gravissimum educationis

(1965) ........................................................................ 4

vi

INTRODUCTION, SUMMARY AND

INTEREST OF AMICUS CURIAE1

School choice programs promote and protect the

First Amendment rights of families to educate their

children in accordance with their faith-based or philosophical beliefs, and in a setting where beliefs and values are taught according to private choice, not school

board edict. Following that model, Michigan is home

to countless independent schools that protect and promote a wide range of religious, cultural, and social

identities and viewpoints. By providing low-income

families with access to those schools, school choice programs make a critical contribution to fostering a more

inclusive, diverse, and vibrant educational landscape.

But Michigan is prevented from offering low-income families such opportunities by a Blaine Amendment. Although the Amendment is neutral on its face,

it was enacted because of and in furtherance of antireligious bigotry. Many states have similar provisions,

which conceal behind textual neutrality their discriminatory intent and effect.

The ability of Michigan and other states with similar laws to offer genuine educational choice to all their

citizens is an issue of overriding importance to amicus

Protect the First Foundation (PT1). PT1 is committed

to the principles of free speech, free association, and

religious liberty enshrined in the First Amendment

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members and its counsel, made any monetary contribution

toward the preparation or submission of this brief. All parties

received notice of amicus’s intent to file more than ten days before

this filing.

and supports educational choice as a vital means of exercising those freedoms. And it is a nonprofit, nonpartisan organization that advocates for protecting First

Amendment rights in all applicable arenas and areas

of law. PT1 is concerned about all facets of the First

Amendment and advocates on behalf of people of all

religions and no religion, people across the ideological

spectrum, and people who may not even agree with the

organization’s views. Amicus urges this Court to grant

certiorari to prevent these states from continuing to

evade precedents of this Court that have already declared Blaine Amendments unconstitutional.

STATEMENT

In the mid-1960s, the Michigan Legislature passed

a school choice grant program that allocated funds to

private schools for the teaching of secular subjects.

Pet. 8. Voters reacted by passing an amendment to the

Michigan Constitution that prohibited the State from

giving financial support to nonpublic schools. Mich.

Const. Article VIII, § 2, ¶ 2. While the amendment was

facially neutral, applying to both religious and secular

private schools, it nevertheless was a “Blaine Amendment” in its effect on nonpublic school students. At the

time of the Amendment’s enactment, ninety-eight percent of nonpublic school students attended church

schools, and the Michigan Supreme Court itself later

recognized that the Blaine Amendment was “an antiparochiaid amendment.” Council of Orgs. & Others for

Educ. About Parochiaid, Inc. v. Engler, 566 N.W.2d

208, 220–221 (Mich. 1997).

Petitioners are parents of Michigan students, and

they wish to send their children to private schools.

They challenged the State’s Blaine Amendment on

First Amendment and political disenfranchisement

2

grounds. The district court dismissed the First

Amendment claims on comity grounds, holding that

considering them “would require this court to disregard the State’s own interpretation and consistent application of its own tax law.” Pet. 47a. It also dismissed

the political process claims, holding that the Blaine

Amendment did not burden religious schools within

the political process and thus did not violate equal protection under the political disenfranchisement doctrine. Pet.49a. Petitioners appealed as to the political

process claim, and the Sixth Circuit affirmed. Pet. 3a.

REASONS FOR GRANTING THE PETITION

I.

School Choice Programs Promote Educational Pluralism and Allow Parents To Exercise Their First Amendment Right To Educate Their Children Consistent With Their

Beliefs and Values.

Liberty demands, and this Court has recognized,

that a state has no power to “standardize its children

by forcing them to accept instruction from public

teachers only.” Pierce v. Society of the Sisters of the

Holy Names of Jesus & Mary, 268 U.S. 510, 535 (1925).

After all, “’[t]he child is not the mere creature of the

state; those who nurture him and direct his destiny

have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id.

This Court has thus held that parents have both a

“right of control” of their children’s education as well

as a corresponding “natural duty” to ensure that the

education is adequate and appropriate to each child.

Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Neither

governments nor schools may usurp that right. Indeed, the Meyer Court specifically listed parents’ right

3

to “bring up children” as one of “those privileges long

recognized at common law as essential to the orderly

pursuit of happiness by free men.” Id. at 399. Included

in this right and duty is the liberty of parents to choose

which schools their children attend, whether they be

public or private, religiously affiliated or otherwise.

This right is essential to American pluralism. Allowing families with diverse values and beliefs to live

and teach their children according to their own conscience is core to tolerance. After all, “[i]f there is any

fixed star in our constitutional constellation, it is that

no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word

or act their faith therein.” West Virginia State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943). And that

is one reason why, as amicus now shows, many families voluntarily choose religious schools for their children, to the benefit of both the children and the larger

society.

A. Many Families Choose Religious Schools

for Their Children’s Instruction.

School choice is often no mere matter of personal

preference, but a decision guided by “deep religious

conviction.” Wisconsin v. Yoder, 406 U.S. 205, 216

(1972). Many different religious and ethical traditions

place a heavy emphasis on education consistent with

their values.

Catholics, for example, are charged with “the duty

of entrusting their children to Catholic schools wherever and whenever it is possible.”2 Similarly, the

2 Vatican Council II, Gravissimum educationis § 8 (1965); see

also 1983 Codex Iuris Canonici c.798 (stating that “[p]arents are

4

Southern Baptist Convention teaches that “an adequate system of Christian education is necessary to a

complete spiritual program for Christ’s people” and

that education in the Kingdom of Christ must receive

“liberal support.”3 And the Presbyterian Church

(U.S.A.) embraces John Knox’s call for “a school in

every parish.”4

The conviction to provide children with religious education in the United States is not limited to Christian

faiths.5 Dr. Jamal Badawi, speaking to the Islamic Society of North America, said, “Establishing of Islamic

schools, in the environments in which we live, takes

precedence over building mosques.”6 Professor of religion Diana Eck further explained, “Many Muslims

despair of the drugs, the dating, the entertainmentsaturated culture that are so much a part of the public

school experience. Muslim parents have responded by

supporting full-time Islamic schools that create a

stronger environment of support for Muslim faith and

practice.”7 And recent research has found that

to entrust their children to those schools which provide a Catholic education” when able).

3 Southern Baptist Convention, The Baptist Faith and Message art. XII (June 14, 2000).

4 Presbyterian Church U.S.A., What We Believe: Education,

https://www.presbyterianmission.org/what-we-believe/social-issues/education/.

5 See id. at 87.

6 Diana L. Eck, Muslim in America, Religion Online (2001),

https://www.religion-online.org/article/muslim-in-america/.

7 Id.

5

children who attend faith-based schools, particularly

Muslims, feel less alienated and more American.8

Orthodox Jews have similar beliefs on education.

The requirement to “transmit[] Jewish values through

education is one of the central and timeless imperatives captured in Judaism’s most sacred texts.”9 Indeed, “for modern Orthodox Jews, enrolling their children in a dual curriculum Jewish day school is ‘virtually mandatory.’” Westchester Day Sch. v. Vill. of Mamaroneck, 417 F. Supp. 2d 477, 497 (S.D.N.Y. 2006)

(citing multiple expert witnesses who testified to that

effect), aff’d, 504 F.3d 338 (2d Cir. 2007).

It would be difficult for Jewish schoolchildren at

secular schools to practice their religion in ways such

as participating in daily prayers or restricting travel

during Jewish holidays.10 Other religious groups, such

as Muslims, also teach prayer, holiday observance,

and other practices that are similarly difficult to observe in public school.11

8 See Andrew Thurston, Inside Islamic Schools, The Brink

(April 26, 2016), https://www.bu.edu/articles/2016/inside-us-islamic-schools/.

9 Letter from Moishe Bane, Pres, Orthodox Union Advocacy

Center, to Dr. Christina Coughlin, N.Y. Educ. Dept. (Aug. 28,

2019), http://bit.ly/3q8A6dz (citing Joshua 1:8; Deuteronomy

6:7).

10 Br. of Amicus Curiae Jewish Coalition of Religious Liberty

in Support of Petitioners, Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) (No. 18-1195).

11 See Eck, supra n. 6 (explaining accommodations Muslim

students need in public schools, including dietary needs and

time for prayer and holiday observance); Muhsin S. Mahdi, Islam, Britannica, https://tinyurl.com/islamprayer (stating that

6

Whatever the reason for seeking religious education, the religious significance of faith-based education

to those who seek it cannot be overstated. See Yoder,

406 U.S. at 216. Excluding faith-based education

based on religious animus hinders families’ ability to

seek such education and violates the First Amendment.

B. Educational Pluralism Benefits Those

Who Seek an Education Consistent With

Their Values.

Invalidation of Michigan’s Blaine Amendment

would allow Petitioners to effectively advocate for

more school choice options in Michigan, like those

available in a growing number of states around the

country. Such measures would allow more families, including those of modest means, to receive educational

opportunities that align with their values.

For example, the Grand Rapids Christian Schools

have over 350 students in their Spanish immersion

program, which focuses on cultural competence along

with Spanish language proficiency.12 Greenhills

School specializes in STEM programs.13 The Roeper

School is the oldest independent K-12 school for gifted

children.14 And the Rudolf Steiner School of Ann Arbor

the second pillar of Islam “consists of five daily canonical prayers”).

12 Grand Rapids Christian Schools, Spanish Immersion,

https://www.grcs.org/academics/programs/si.

13 Greenhills School, About, https://www.green-

hillsschool.org/about/.

14 The Roeper School, Welcome to Roeper,

https://www.roeper.org/.

7

uses “Waldorf education,” which allows teachers to

move with their classes through at least Grade 5.15

Michigan is also home to several highly rated

schools committed to preserving different cultural and

religious heritages. For instance, Michigan Chinese

School “provides support to the education of the Chinese language and culture” and “provides local Chinese descendants with one of the best environments to

learn Chinese culture, arts, and language.”16 The

Frankel Jewish Academy is a top-rated private school

in the state committed to creating an environment

where all students can “grow academically, Jewishly,

emotionally and socially.”17 Similarly, the Michigan

Islamic Academy serves Michigan’s large Muslim community by providing “excellence in education while

nurturing Muslim character.”18 Brother Rice High

School is an all-male Catholic school that fosters “a

community of faith where young men are accepted,

recognized, valued and challenged to grow.”19 And

Notre Dame Preparatory School and Mercy High

15 Rudolf Steiner School of Ann Arbor, Waldorf Education,

https://www.steinerschool.org/about-us/waldorf-education.cfm.

16 Michigan Chinese School, About Michigan Chinese School,

https://www.michiganchineseschool.org/blog/?page_id=4982.

17 Frankel Jewish Academy, Mission & Core Values,

https://www.frankelja.org/about/mission/.

18 Michigan Islamic Academy, Mission, Goals, and Values,

https://mia-aa.org/mission#TabContent.

19 Brother Rice High School, Home Page, https://www.brotherrice.org/.

8

School are all-female Catholic schools that promote

both academic and spiritual education.20

Each of these schools provides high-quality educations that support families in passing their values,

heritage, and beliefs through generations. In a pluralistic America, every family is different, and must be

able to make informed, tailored choices for their children. Such educational, cultural, and religious pluralism is the embodiment of multiple First Amendment

values, and Michigan should not be handicapped in

supporting such pluralism by a Blaine Amendment developed and adopted out of religious animus and antithetical to core First Amendment values and limits.

II. Michigan’s Blaine Amendment Mirrors Other

Blaine Amendments in its Discriminatory Intent.

As this Court has repeatedly recognized, “hostility

to aid to pervasively sectarian schools has a shameful

pedigree,” born of anti-Catholic bigotry. Mitchell v.

Helms, 530 U.S. 793, 828–829 (2000). Because of the

preference for Protestant schools and a disdain for the

spread of Catholic education, Senator James Blaine

first proposed an amendment to the federal Constitution in 1875 that would have prohibited religious

schools from receiving government funding. Id. at 828.

Although the amendment was narrowly defeated,

many states adopted their own no-aid provisions,

which shared the same “checkered tradition” of antiCatholicism that motivated the federal Blaine

20 See Notre Dame Preparatory School, NDP at a Glance,

https://www.notredameprep.com/about/ndp-at-a-glance; see also

Mercy High School, Mission & Vision, https://mhsmi.org/mission/mission-vision.

9

Amendment. Espinoza v. Montana Dep't of Revenue,

591 U.S. 464, 482 (2020). Michigan’s no-aid provision

is no exception. This Court has not “hesitate[d] to disavow” such discriminatory measures in the past,

Mitchell, 530 U.S. at 828, and it should not hesitate to

do so now.

Although Michigan’s Blaine Amendment is neutral

on its face, that is not the end of the inquiry. As this

Court has long held, the inquiry into whether a law is

discriminatory does not “end with the text of the laws

at issue,” and “[f]acial neutrality is not determinative.”

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 534 (1993). After all, “[t]he Free Exercise

Clause protects against governmental hostility which

is masked, as well as overt.” Id. Thus in Free Exercise

cases, “as in equal protection cases, we may determine

[the government’s] object from both direct and circumstantial evidence.” Id. at 540 (citing Village of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 266 (1977)). “Relevant evidence

includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy

in question, and the legislative or administrative history, including contemporaneous statements made by

members of the decisionmaking body.” Id. See also

Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm'n,

584 U.S. 617, 634–636 (2018) (considering public comments of decisionmakers in determining that government had acted with discriminatory animus).

Here, moreover, there is a dispositive fact: One year

after Michigan’s Blaine Amendment was passed, the

Michigan Supreme Court examined the history of the

provision and stated that, “[a]s far as the voter was

10

concerned, the result of all the pre-election talk and

action concerning [the Blaine Amendment] was simply

this—[the proposal] was an anti-parochiaid amendment—no public monies to run parochial schools.”

Traverse City Sch. Dist. v. Attorney Gen., 185 N.W.2d

9, 17 n.2 (Mich. 1971).

And the court had good reason for that conclusion.

Long before Michigan voted to add a Blaine Amendment to its Constitution in 1970, the State saw an increase of anti-Catholic animus. With the surge of

Catholic immigration to the United States in the late

19th and early 20th centuries, at least 1 in 20 students

in Michigan attended Catholic schools. Compl. ¶ 51.

Fearing the growth of parochial—specifically Catholic—education, the Wayne County Civic Association,

an association nominally devoted to protecting public

schools, proposed a ballot measure in 1920 to require

all Michigan students between the ages of 5 and 16 to

attend public school. Id. ¶¶ 52–53. While the amendment did not pass, it was only the start of a movement

by various groups to eradicate religion from education.

That “anti-parochaid” movement succeeded in 1970.

Id. ¶¶ 54–55.

A flare-up of antireligious sentiment occurred in

1968 when the Michigan Legislature passed the Investment in the Education of Children Act, which supported school choice by allocating funding to private

schools for each student who attended them. Id. ¶ 78.

In response, private school opponents created a ballot

committee, the “Council Against Parochiaid,” to promote an amendment to Michigan’s Constitution that

would prohibit state grants to nonpublic schools. Id.

¶ 88. Although the proposed amendment was facially

neutral, the term “parochiaid”—which plays on the

11

word “parochial”—reflects that the initiative’s intent

and purpose was antireligious.

The initiative’s antireligious purpose is further evident from news articles and campaign literature that

urged Michigan voters to vote for the Blaine Amendment. At one of the Council Against Parochiaid’s meetings, Dr. Maurice Geary stated that “parochiaid” was

“anti-American” because the Catholic Church was the

biggest corporation in America, yet its financial activities are kept secret. Id. ¶¶ 91–92. The Council Against

Parochiaid, journals, and news sources disseminated

op-eds, articles, and warnings against allowing religious schools to usurp taxpayer dollars. The complaint

highlighted more than twenty anti-parochiaid ads and

news articles that urged the public to vote for the

Blaine Amendment. Id. ¶¶ 91–92. Examples of inflammatory statements published and disseminated by the

press and campaigns include:

• “[T]he politicians want Catholic votes and the

Catholic church wants money. It is that simple.” Flint Journal (October 12, 1970).

• “To those tax-hungry clergymen who formed

an alliance with unprincipled politicians to jam

repeated parochiaid measures through the legislature and who, during the campaign, have

threatened to close their religious schools ***,

we say ‘Don’t just talk about it, DO IT!’” Grand

Rapids Press.

• “[P]arochial education’s only purpose is complete indoctrination of the child in the religious

beliefs of a single denomination or faith.”

Spend Taxes on Public Schools (STOP).

12

• “SUPPORT CHURCHES BY GIVING ON

SUNDAY! (AND NOT WITH OUR PUBLIC

TAX MONEY).” Lansing State Journal (October 29, 1970; November 1, 1970).

• “LET’S BE FAIR *** More than 90% of all parochiaid funds go to schools owned by the

clergy of one politically active church – a

church which pays no taxes on its $80 billion

holding in real estate, stocks, bonds, and business investments, or on its $12 billion annual

income in this country.” Council Against Parochiaid.

• A supporter of the Blaine Amendment wrote

that the “phobia” behind it was “that the tax

money is being used for religious education.”

Detroit News (October 10, 1970).

• A Grand Rapids Press article on November 1,

1970, described the debate over the amendment as a religious battle, stating “both supporters and opponents have been waging an intense campaign to sway voters in a state where

Protestants outnumber Roman Catholics about

two-to-one.”

Id. ¶¶ 91–92.

Sen. James Fleming stated that he had “never witnessed such anti-Catholic sentiment in [his] life.21 He

continued: “It might even be that divisiveness created

21 Letter of Senator James Fleming to Dr. Charles T. Vear,

Michigan Area United Methodist Church, (May 9, 1969).

13

by this issue would set back ecumenicalism fifty years

in Michigan.”22

The dominance of religious schools among Michigan

private schools in 1970 further demonstrates the discriminatory intent of the amendment. When Michigan’s Blaine Amendment was passed, 218,000 of the

275,000 nonpublic students in Michigan were enrolled

in Catholic schools. Compl. ¶ 84. As the Michigan Supreme Court recognized, “with ninety-eight percent of

the private school students being in church-related

schools” when the Blaine Amendment was enacted,

the Amendment “is nearly total” in its “impact” on

“church-related schools.” Traverse City Sch. Dist., 185

N.W.2d at 29. Cf. Arlington Heights, 429 U.S. at 266

(“Sometimes a clear pattern, unexplainable on

grounds other than [a protected characteristic],

emerges from the effect of the state action even when

the governing legislation appears neutral on its face.”).

In short, the evidence is clear that antireligious animus motivated Michigan’s Blaine Amendment. Denying certiorari would allow a state to merely adopt a facially neutral (but discriminatory) Blaine Amendment

to circumvent this Court’s holdings in Trinity Lutheran, Espinoza, and Carson.

22 Id.

14

III. Many States Have Adopted Facially Neutral

Funding Prohibitions That Were in Fact

Motivated by and Serve Religious Animus.

Michigan is far from alone in adopting a facially

neutral constitutional provision that stemmed from

discriminatory animus and has had discriminatory effects. It is imperative that the Court grant the petition,

not only to bar Michigan’s Blaine amendment, but also

to provide a framework that will prevent other states

from likewise discriminating against religious and private schools. If this Court does not grant certiorari,

they will continue to evade this Court’s precedent.

1. New Mexico Constitution Article XII, § 3

For example, New Mexico’s constitution has a history fraught with religious animosity. The decades before the State’s constitution was ratified marked a

long attempt to push religious schools out of New Mexico’s education system—especially Catholic schools—

and that attempt succeeded with the passage of a

Blaine Amendment.23

William Gillette Ritch, the territorial secretary appointed in 1874, was a notorious anti-Catholic.24 When

he saw the prevalence of parochial schools in the territory, he “survey[ed] the condition of education and

declared it to be backward.”25 Described as a “staunch

Episcopalian imbued with hatred of Catholicism, he

blamed the church for the ignorance and illiteracy

23 Dianna Everett, The Public School Debate in New Mexico:

1850-1891, 26 Ariz. and the West 107 (1984).

24 Id. at 112.

25 Id. at 113.

15

prevailing among Native New Mexicans.”26 He called

for congressional action to establish public schools and

argued that nonsectarian education “was the only

practical way of ‘Americanizing’ New Mexico.”27 Ritch

likewise criticized the Jesuits, accusing them of “incorrigible dabbling in the political affairs of every nation

in which they had resided.”28 He saw Jesuits as “totally unfit ‘to become instructors of children in free

America.’”29 Early arguments for public education in

New Mexico thus “relied on the familiarly Protestant

objection to sectarianism” and sought to “excise[]

Catholic influence.”30

Given this climate of animus, it was hardly a surprise in 1891 when the territorial legislature approved

an act “declar[ing] that all public schools must be nonsectarian and that all teachers must speak and teach

the English language.”31 Later, “Congress forced New

Mexico and other territories seeking admission to the

union to adopt Blaine provisions as a condition of

statehood.” Moses v. Ruszkowski, 458 P.3d 406, 419

(N.M. 2018). That Blaine Amendment reads:

The schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and no part of the proceeds arising

26 Id.

27 Id.

28 Id.

29 Id. at 114.

30 Kathleen Holscher, Religious Lessons: Catholic Sisters and

the Captured Schools Crisis in New Mexico 38, 40 (2012).

31 Id. at 133.

16

from the sale or disposal of any lands granted to

the state by congress, or any other funds appropriated, levied or collected for educational purposes,

shall be used for the support of any sectarian, denominational or private school, college or university. New Mexico Const. art. XII, § 3.

Though facially neutral, the “historical background

of the decision under challenge, the specific series of

events leading to the enactment or official policy in

question, and the legislative or administrative history,

including contemporaneous statements made by” voters makes the discriminatory intent and anticipated

effect of the provision plain. See Lukumi, 508 U.S. at

540. As the New Mexico Supreme Court stated, “the

history of the federal Blaine amendment and the New

Mexico Enabling Act” show “that anti-Catholic sentiment tainted [the] adoption” of New Mexico’s no funding provision. Moses, 458 P.3d at 419.

2. Alaska Constitution Article VII, § 1

The Alaska Constitution contains the following noaid provision:

The legislature shall by general law establish and

maintain a system of public schools open to all

children of the State, and may provide for other

public educational institutions. Schools and institutions so established shall be free from sectarian

control. No money shall be paid from public funds

for the direct benefit of any religious or other private educational institution. Alaska Const. art.

VII, § 1.

The history of Alaska’s Constitutional Convention

in 1956 shows that this no-funding provision was motivated by anti-religious animus. Speaking in favor of

17

the provision, delegate John Coghill said, “I think that

sectarianism segregation in our educational system is

bad for the children.” Alaska Const. Convention, Jan.

9, 1956, at 1516, available at https://akleg.

gov/pages/constitutional_convention.php.

Delegate

Robert Armstrong said, “This section gives the education department *** the right to seek out the child, independent of his religious affiliation, to help him to become a strong and useful part of society[.]” Id. at 1514.

Rather than recognizing the right of parents to direct

the upbringing of their children, Pierce, 268 U.S. at

534–535, Armstrong sought to separate children from

their religious upbringing to form them to benefit the

government. These statements show a negative attitude towards parochial schools and a judgment of their

ability to educate Alaska’s children. And notably absent from these discussions is any mention of other

types of private schools. Despite the constitution’s facially neutral language, the delegates targeted sectarian schools in their no-funding provision.

Other delegates discussed their concerns with the

benefits they already saw religious groups reaping.

Delegate Irwin Metcalf described how he saw the economic well-being of religious groups as contrary to his

own pecuniary interest. Alaska Const. Convention,

Jan. 9, 1956, at 1518. And delegate Victor Rivers, in

comparing similar provisions from other states and

territories, hesitated to use the Puerto Rican constitution as a model, it being a “highly religious little Commonwealth”—meaning highly Catholic—whose use of

the word “direct,” if interpreted narrowly by the

courts, could lead to support for religious institutions.

Id. at 1530.

18

This evidence from the Alaskan Constitutional Convention shows that its facially neutral no-funding provision is a discriminatory Blaine amendment.

3. South Carolina Constitution Article XI, § 4.1

South Carolina’s no-funding provision states “No

money shall be paid from public funds nor shall the

credit of the State or any of its political subdivisions

be used for the direct benefit of any religious or other

private educational institution.” South Carolina

Const. art. XI, § 4.1. While facially neutral, it was motivated by discriminatory intent like other Blaine

Amendments.

In an effort to combat Reconstruction, Governor

Benjamin “Pitchfork Ben” Tillman, an “avowed racist,”

convinced South Carolina voters, “dominated by socalled ‘Tillmanites,’” to call a constitutional convention.32 The convention was not only marked by blatant

racism, but also by anti-Catholic animus. Walther Oeland, a Tillmanite and member of the South Carolina

chapter of the Junior Order of United American Mechanics, called the Catholic Church “America’s most

dangerous and deadly foe,” and stated in the local

newspaper:

Her highest ambition is to gain control of the affairs of our government and to force us (the

Protestants) to come to her terms and the only

hope of [their] success is keeping the masses of our

good people in ignorance *** Our order is growing

very rapidly and will continue to do so until the

32 Nicole Stelle Garnett & Daniel T. Judge, Ending the Shame

of Blaine, Real Clear Policy (May 20, 2021),

https://www.realclearpolicy.com/articles/2021/05/20/ending_the_shame_of_blaine_777880.html.

19

gates of Castle Garden are locked against this

worse than trash from other shores made so by the

rottenness of the institutions from whence they

come, and the free school in every city, town and

hamlet, the Bible firmly planted within, and Old

Glory is floating in the breeze from mountain to

seashore.33

Another South Carolina editorialist said: “Roman

Catholic parochial schools are avowedly intended to

utterly destroy the American public school system.”34

South Carolina’s Blaine Amendment also stemmed

from racial prejudice against recently freed slaves, and

against the religious institutions that served and educated them. In the years following the Civil War, many

missionaries frustrated racist legislation by

“work[ing] tirelessly to give the emancipated population the opportunity to learn. Former slaves of every

age took advantage of the opportunity to become literate.”35 For example, the Penn School in Sea Island,

South Carolina, was an independent Quaker school

run by Northern missionaries that was the first school

in the South for freed slaves.36 In 1867, as a wave of

Reconstruction Republicans swept into power, the

Penn School began receiving public funds for books

33 Walther Oeland, Letter to the Editor, Gaffney Ledger, Au-

gust 20, 1896, at 7.

34 Joseph Cook, Romish Schools, The Abbeville Press and

Banner, September 19, 1888, at 1.

35 The African American Odyssey: A Quest for Full Citizen-

ship, Library of Congress, https://www.loc.gov/exhibits/africanamerican-odyssey/reconstruction.html.

36 South Carolina: Penn Center, Nat’l Park Serv.,

https://www.nps.gov/places/south-carolina-penn-center.htm.

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and school operations.37 That taxpayer support ended

when the school board forbade residents of the town to

raise money or levy school taxes for the school.38

Other examples of religious aid to newly freed

slaves included the Avery Institute in Charleston, a

nonprofit school for freed slaves founded by the American Missionary Association,39 and the Zion Presbyterian Church School in Charleston, which enrolled thousands of black students in the decades following the

Civil War.40 In 1895, only eight institutions served

black students, all of which were religiously affiliated.41 It is no wonder that Tillman’s racism and his

followers’ religious animus would go hand in hand to

produce South Carolina’s Blaine amendment.

A recent proposed bill to repeal the no-aid provision

suggests that South Carolina legislators recognize the

problematic nature of their Blaine amendment.42 Indeed, House Speaker Murrell Smith, when he introduced the bill, said “the proposed move will repeal the

37 History, Penn Ctr., https://www.penncenter.com/history-

timeline.

38 Id.

39 Avery Institute History, Avery Inst., http://www.averyinsti-

tute.us/history.html.

40 Otis Westbrook Pickett, Neither Slave Nor Free: Interracial

Ecclesiastical Interaction In Presbyterian Mission Churches

From South Carolina To Mississippi, 1818-1877, at 287 (2013)

(Ph.D. dissertation, University of Mississippi).

41 See generally Lewis K. McMillan, Negro Higher Education

in South Carolina (1952).

42 S. 125, H. 3591 Joint Resolution, S.C. Legis. (2023-2024).

21

remnants of a bigoted past.”43 Such bigotry is evident

not only because the amendment was Blaine’s “brainchild” but also because it was instituted in South Carolina by Tillman and others who opposed providing education for the children of newly freed slaves.44

In short, the histories of these states’ Blaine amendments show that even facially neutral no-aid provisions can be motivated by and advance religious animus.

CONCLUSION

Facially neutral Blaine amendments like Michigan’s are rooted in religious animus and impermissibly restrict parents’ right to direct the education of

their children. This Court should grant certiorari to

reverse the Sixth Circuit’s dismissal and allow the suit

to continue, thus placing the final nail in the coffin of

Blaine amendments’ burden on parents’ Free Exercise

and First Amendment rights to transmit their pluralistic beliefs and values across generations.

43 Devyani Chhetri, This week in SC politics: Lawmakers pave

way to fund religious schools with public money, Greenville

News (Mar. 6, 2023), https://www.greenvilleonline.com/story/news/2023/03/06/south-carolina-politics-publicmoney-to-religious-schools-taxpayer/69955962007/.

44 Id.

22

Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

ANNIKA BOONE BARKDULL*

SCHAERR|JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

*Not admitted to the D.C. Bar.

May 8, 2024

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