Florida's Blaine Amendment: Goldilocks and the separate but equal doctrine.

• Author: Adams, Nathan A., IV

Origins of the Blaine Amendment Public Schools during Reconstruction Religious and Racial Bigotry Blaine Amendment Precedent The Goldilocks Test Blaine's Reenactment Federal Precedent Public Policy Conclusion Anti-Catholic prejudice that gave rise to so-called Blaine Amendments in myriad state constitutions is widely known. (2) These amendments provide, in essence, that no public revenue may pass directly or indirectly in aid of a sectarian institution. (3) Lesser known is the relationship explored in this article between the Blaine Amendment and racial prejudice. In Florida, the two were patently interrelated. Before ratification of the State's 1885 Constitution, freedmen could receive a quality education at integrated common schools or private religious schools. The "separate but equal" doctrine (4) foreclosed the first choice and the Blaine Amendment limited the second. Not coincidentally, the private religious schools teaching freedmen at the time were sponsored by carpetbaggers, (5) Protestant abolitionists, and Catholics. Thus, the separate but equal doctrine and the Blaine Amendment together became a juggernaut of racial and religious oppression impacting primarily the African-American community.

Today, Florida courts refer to the Blaine Amendment in far more benign terms as a "no-aid" provision. (6) But this article reveals that the Amendment's framers would not have recognized their clause as such. They were not in favor of strict separation as are most of the Blaine Amendment's supporters today. Rather, they generally favored a Protestant establishment of religion even in the public schools. The test Florida courts have adopted to interpret Article I, Section 3, permits in effect the just-about-right religious to participate in publicly-funded programs, but not the too-religious. Because this is reminiscent of the Goldilocks tale, the article refers to this test as the "Goldilocks test" for compliance with Article 1, Section 3. (7)

Employing the Goldilocks test to interpret Article I, Section 3 not only perpetuates a prejudicially motivated amendment, but also impinges upon state and federal precedent against preferring one religion over another and entangling the state in church law, policies, and regulations. Therefore, the fact that the Blaine Amendment was readopted in the 1968 Constitution and passed on by subsequent constitutional conventions cannot and should not save this interpretation of the clause. It should not save it, because the Amendment as reframed will cause even more public discrimination than as proposed with racial and religious animus. In addition, it would severely undercut state and local government's ability to provide social services to the poor and needy from healthcare and substance abuse treatment to transitional housing and eldercare.

ORIGINS OF THE BLAINE AMENDMENT

Among the potent political forces in early nineteenth century America was Know-Nothingism. (8) Nationally, the Know-Nothing Party, or American Party, was concerned about the immigration of "Papists" (9) from Southern Europe to America, where they tended to congregate in inner cities and to establish parochial schools. (10) America's public schools, or "common schools," were essentially Protestant. Prayer, King James Bible reading, and hymn singing were common. (11) Irish and German immigrants wanted their children to learn Roman Catholic values and religion from the Douay Version of the Bible, rather than the Protestant Bible. Because of the Protestant influence in the public schools, Catholics established a parallel school system and sought public funding, or at least exemption from taxation. (12)

Prior to the Civil War, the Know-Nothings led the fight against the immigration of the supposed unsavory and un-American Southern Europeans and the private school funding they sought. Begun as a secret society in New York in 1849, party members were instructed to answer, "I don't know," when asked about the organization. (13) As secrecy gave way to public awareness, the party's mantra became "America for Americans." (14) Attracting former Whigs and nativists, the Know-Nothings appeared on national ballots for the first time in 1856, with former President Millard Fillmore as the standard bearer. (15) In their national platform, they demanded a twenty-one-year period of naturalization and a ban on nonnative born Americans from office-holding. (16) But the Know-Nothings did not long endure; they split over the Kansas-Nebraska Act, and the party collapsed around 1856 in the wake of two powerful movements: abolitionism and secessionism. (17)

The American Party's position on abolitionism was apparently in the eye of the beholder. Stephen Douglas equated Know-Nothingism with abolitionism, whereas Abraham Lincoln warned, "[w]hen the Know Nothings get control, it will read all men are created equal, except Negroes, and foreigners, and Catholics." (18) Southern defectors from the American Party generally emerged as Constitutional Unionists, while Northern supporters joined the rapidly rising Republican Party. After the Civil War, Know-Nothing influence emerged the strongest in the Republican Party. (19)

In 1875, President Ulysses S. Grant and former House Speaker James G. Blaine seized on part of the Know-Nothings' message to revitalize the Grand Old Party which lost control of the House of Representatives in 1874. (20) Blaine sought the Republican nomination, (21) but Grant also not so secretly desired an unprecedented third term. (22) Although Grant's administration was marred by corruption, (23) anti-Catholicism and the "school question" offered an avenue to rebuild the Republican Party. (24) Consequently, "[i]n 1875, Republicans chose to use religious prejudice as a political counterpoise to racial prejudice." (25) In a celebrated speech, President Grant inspired an amendment to the United States Constitution, hastily proposed by Blaine to upstage his rivals, that precluded "aid" to "religious sects," commonly understood to mean "Catholic" institutions. (26)

Protestants hailed the Amendment, but the Catholic Church bitterly contested it. (27) The Amendment passed overwhelmingly in the House of Representatives (180-7), but failed in the Senate by four v[section]partyline vote. (28) The primary objection raised in the Senate was that it would infringe on state autonomy in educational matters. (29) Notwithstanding this, Congress required new states entering the Union to include versions of the Blaine Amendment in their constitutions. (30) Many other states voluntarily adopted them until a super-majority of states emerged with Blaine-like amendments. (31) Florida enacted its Blaine Amendment in 1885, at the same time as it adopted the "separate but equal" and miscegenation amendments. (32) The timing was not coincidental. (33)

PUBLIC SCHOOLS DURING RECONSTRUCTION

The contrast with the Carpetbagger Constitution of 1868 is stark. From 1868 to 1876, Republicans and Northerners sympathetic to the plight of blacks determined to educate them. (34) During Reconstruction, many, if not most, public school students were African-American. (35) The Florida Constitution of 1868 extended education to "all the children residing within its borders, without distinction or preference," and this was to be accomplished through a "uniform system of Common Schools, and a University" that would be free to all between the ages of four and twenty-one. (36) "The Republican party promoted the public school as the means to educate the recently freed blacks, elevating them to be worthy of the responsibilities of citizenship and suffrage," as well as to Americanize the children of Catholic immigrants to keep America free of "feared papal domination." (37)

Southern Whites resented universal education. (38) Later, State Superintendent of Public Instruction, W.M.E. Sheats, called the 1869 school law "an import" enacted by "freedmen less than four years out of slavery, with a sprinkling of carpet-baggers," the "chief beneficiaries" of which were "the recent denizens the cotton patch." (39)

The schools that freedmen attended after the Civil War were sponsored chiefly by religious abolitionist societies, such as the American Missionary Association ("AMA") and National Freedmen's Relief Organization, and by the Catholic Church. (40) In 1866, the Freedmen's Bureau Superintendent of Education, H.H. Moore, observed that Florida's whites "had shown no willingness to assist in negro education." (41) In contrast, the AMA believed that "'the only true ground to take--the only one sanctioned by the Constitution and by Christianity' was that blacks were entitled to equal rights in both church and state." (42) Radical Republican Superintendents of Public Instruction, C. Thurston Chase and Charles Beecher, invited the AMA into the State to fulfill this vision. (43)

Florida's first public schools were staffed by missionaries and frequently met in churches. (44) Public school buildings were uncommon. For example, Key West constructed its first public school building in 1874, (45) and Hillsborough County did not erect its first school building until 1878. (46) Florida counties admitted religious schools as public schools and maintained them with public funds; (47) for example, St. Johns County agreed to treat a Catholic parochial school owned and operated by the Sisters of St. Joseph as Public School No. 12. (48) The St. Ambrose and Mandarin neighborhoods in Duval County did likewise. (49) Public funding for private religious schools was not unusual as late as the 1890s, (50) and many of these schools taught African-Americans. (51)

Superintendent Beecher, the brother of Harriet Beecher Stowe, requested from the AMA teachers "full of the spirit of the cross." (52) In fact, most AMA teachers were ordained ministers, as interested in the spiritual state of freedmen as their minds. (53) Eagerly, they reported on conversions to their faith. (54) Students were...