One common concern with regard to school choice legislation is that it will violate the U.S. Constitution by enabling children to attend religiously affiliated schools. While this concern is understandable, the U.S. Supreme Court has rejected arguments that school choice legislation amounts to an unlawful entanglement between church and state.
Specifically, the U.S. Supreme Court  recently dismissed an attack on a tuition assistance tax credit similar to the one proposed under Kentucky House Bill 141 . Challenges to tax credits under state constitutions have met this same result  and it is expected that the Kentucky Supreme Court would reach a similar conclusion .
Even though tax credits have been upheld under the U.S. Constitution, and state high courts have followed suit, there are still some who are skeptical of private school choice. For many, this is based on the notion that the government should not take any actions which would enable a child to attend a religiously affiliated school. However, there are a couple of facts that should be considered by individuals holding this viewpoint.
First and foremost, tuition assistance tax credits support school choice for parents rather than promoting religion. The educational needs of children are of central importance. Thus, while most children will do well within a public school setting, others unique needs require that their parents look elsewhere.
Whether the school that best meets their needs is religious or secular is secondary. We know from extensive studies on the topic that school choice improves academic outcomes . It is clear that when parents have the right to choose, children win.
Second, public assistance for religiously affiliated schools has a long history in the United States. Unfortunately, this relationship was interrupted by a rise in nativism during the late 19th century. Led by Senator James Blaine of Maine, there was a popular movement to amend the U.S. Constitution in order prohibit aid to religiously affiliated schools due to a fear that Catholic immigrants would want government funding for their parochial schools.
Of course, the supporters of this movement were not attempting to remove religion from education. Nondenominational Protestantism  would have remained securely entrenched in public education even if the amendment was successful. The proposal was merely intended to marginalize Catholic education.
Although Senator Blaine’s efforts were ultimately unsuccessful at the federal level, many states followed his lead and adopted constitutional prohibitions with regard to funding for “sectarian schools” (a/k/a Catholic schools). These amendments are commonly known as “Blaine Amendments.” Fortunately, some courts  have recently recognized this dark moment in our nation’s history for what it was and have not been inclined to strike down tuition assistance tax credit legislation.
In conclusion, there is neither a constitutional nor a historical basis for rejecting tuition assistance tax credit legislation. States are free to adopt this important legislation in order to ensure that all families have a choice when it comes to their children’s education.