A provision in the House Omnibus Education Finance bill released by Republican leadership on Monday could run afoul of the state constitution: School vouchers. Minnesota’s constitutional ban on taxpayer funding for religious schools, which stems back to anti-Catholic sentiment in the late 1800s, could create legal problems for the bill, as other states have found.

HF934 contains numerous proposals for education funding in the 2012-2013 fiscal cycle, including the initiation of a controversial school voucher program. Over the course of four years, the authors propose to divert $53 million away from public schools into private – mainly religious – school coffers. Parents would choose the school, the state would cut a check and send it to the school, and the parent would arrive at the school to endorse the check.

Minnesota already has a tax credit system for low-income families which sets $1,625 per family for each student in kindergarten through grade 6 and $2,500 per family for each student in grades 7 through 12.

In several states where vouchers have been attempted, they’ve been ruled unconstitutional because they violate the separation of church and state and clauses that mandate uniform access to education. Though the U.S. Supreme Court has ruled vouchers constitutional, state laws are many times more strict.

David Schultz, a politics and law professor at Hamline University, said that Minnesota law is different from federal law.

“The federal courts have ruled on vouchers and aid to religious schools on several occasions,” Schultz told the Minnesota Independent. “They use what is called the Lemon test to decide if the aid constitutes an establishment of religion. In general, some aid to these schools is okay for non-religious items.”

He continued, “However, Minnesota is potentially different. There is the clear constitutional clause that does not exist at the federal level. This suggests a potentially different outcome that might prohibit the type of funding as proposed in this bill.”

Article XIII, Section 2 of the Minnesota Constitution states:

“Prohibition as to aiding sectarian school. In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.”

“Second, Minnesota has a tradition in many cases of interpreting its constitution more strictly than the federal constitution,” Schultz said. “This is definitely the case with the free exercise or religious freedom clause of the state constitution. Whether the same would be true [with this issue] is an open question.”

He concluded, “There are clear concerns that this finance bill could raise constitutional questions.”

Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota, agreed that there are constitutional issues with such a system.

“If you want state money, you are a state school,” he said. Schools that accept vouchers may be saddled with state laws that mandate that topics be taught a certain way or laws that might impinge on the school’s religious nature.

He also questioned the wisdom of pulling money from the public school system for the program. “What has been the result of the charter school experiment?” he asked. “Has anything been learned that would make public schools more successful?”

Minnesota spent $64 million on charter schools in 2008 alone, so instead of pulling more money away from public schools, Samuelson argues, why not look to lessons learned from that program to improve the existing system?

“Is this a solution designed to create an English-style system, a two-tiered system with schools for the haves and schools for the have-nots?” added Samuelson.

That was a problem for Florida’s voucher proponents who lost in the courts because the state constitution mandated a uniform public school system. Allowing certain students to attend private schools with public money violated that state’s constitution.

But Samuelson said it could be a part of a different movement, one that wants to do away with Blaine Amendments, such as Minnesota’s ban on taxpayer funding for schools.

Ira “Chip” Lupu, of the George Washington University Law School, explains:

Funding of religion was such a contentious issue because of the increase in Catholic immigration in the mid-to-late 1800s. Public schools at this time led students in reciting Protestant but not Catholic prayers and reading from the Protestant but not the Catholic version of the Bible. As more and more Catholics immigrated to the United States, Catholic Americans began to resent sending their children to schools that were effectively Protestant. So they decided to start their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools. The Blaine Amendments arose from this concern about the “Catholicization” of American education.

Minnesota has such a law, as does Arizona where courts ruled that school vouchers violated that law.

The leading proponent of the amendments was Republican Sen. James G. Blaine of Maine, though historians have disputed whether or how much anti-Catholic sentiment was involved in the amendments. Blaine, Minn., a suburb northwest of St. Paul, bears the name of the former senator.

A broad discussion of the Blaine Amendment debate can be read in the the U.S. Commission on Civil Rights’ publication “School Choice and the Blaine Amendments (PDF).

During testimony on the bill in the House Education Finance Committee Monday evening, it became clear that some advocates of school vouchers – supporters call it “school choice” – had issues with the program.

Peter Knoll, education director of Minnesota Catholic Conference, said his group supports the bill, but with caveats.

“We wish to reiterate out support for enrollment options,” he said. “The reservations we have has to do with the mandates that are embedded in the section regarding enrollment options. We think a better solution is to require schools to be accredited” through a state recognized group for participating schools.

Among the mandates included are anti-harassment rules, educational standards and testing and a prohibition on denying qualified students.

Dr. Karen Effrem of Education Liberty Watch – formerly called EdWatch – said that the “school choice” provisions are great so long as the mandates are lifted.

“With regard to school choice, we again appreciate the intent of the bill. We do want the mandates off, or move to a purely tax credit form of school choice bill such as Sen. Senjem’s in the Senate.”

Republican Sen. David Senjem of Rochester offered a bill that would provide significant tax credit to those who donate to nonprofits whose specific purpose is to provide scholarships for parents who are seeking school choice.

And the Senjem bill may get around significant constitutional barriers that the omnibus bill may face.