Can a teacher at a North Dakota religious private school receive a state grant for mentoring new teachers, or does the state constitution's Blaine Amendment block it?

Plain-English summary

The North Dakota Education Standards and Practices Board asked the AG whether teachers at sectarian (religious) schools could participate in the state's Teacher Support System, a mentorship program required for two-year-license renewal to a five-year renewal license, and whether they could receive the program's grants ($2,125,764 appropriated by the 2021 Legislature for the 2021-23 biennium).

The state statute and administrative code do not prohibit private-school teachers from participating; the question was whether the North Dakota Constitution's Blaine Amendment (Article VIII, § 5) blocks grants to sectarian-school teachers. The Blaine Amendment, adopted in 1889, says "[n]o money raised for the support of the public schools of the state shall be appropriated to or used for the support of any sectarian school."

The AG concluded the Blaine Amendment is no longer enforceable, citing three recent U.S. Supreme Court Free Exercise Clause decisions:

• Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017): laws may not impose special disabilities on the basis of religious status.
• Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246 (2020): Montana's Blaine Amendment, as applied to discriminate against religious schools in a tax-credit program, was subject to strict scrutiny and failed.
• Carson v. Makin, 142 S. Ct. 1987 (2022): Maine's tuition-assistance program could not exclude religious schools from generally available funding.

Because applying North Dakota's Blaine Amendment would disadvantage sectarian-school teachers compared to teachers at non-religious private schools simply because of the school's religious character, the AG concluded the Blaine Amendment was unconstitutional as applied and could not be enforced to block the grants.

What this means for you

If you teach at a North Dakota religious private school

The opinion holds that teachers at private schools, including sectarian private schools, may participate in the Teacher Support System as mentors and may receive grants to support their participation. The opinion concludes the Blaine Amendment cannot be enforced to exclude them.

If you administer the ND Education Standards and Practices Board's grant program

The opinion concludes the Teacher Support System grant program may not exclude sectarian-school teachers. The opinion grounds the conclusion in Trinity Lutheran, Espinoza, and Carson, and notes the program is mandatory for renewed licensure with no contrary language in the applicable statutes or administrative code.

If you are a state official administering other generally available benefits

The opinion treats the Blaine Amendment as unenforceable "in any situation where doing so would disadvantage a sectarian school as compared to a non-religious private school simply because of the school's sectarian nature." The opinion notes that under N.D.C.C. § 54-12-01, the AG's opinion governs the actions of public officials until the question is decided by the courts.

Common questions

Q: Does this overturn the Blaine Amendment in North Dakota?
A: The AG concluded the Blaine Amendment "cannot be enforced in any situation where doing so would disadvantage a sectarian school as compared to a non-religious private school simply because of the school's sectarian nature." The text of the amendment remains in the constitution; courts would need to remove or limit it in subsequent challenges, but as an enforcement matter it is functionally inert in the public-benefit context.

Q: Can the state still decline to fund religious activity?
A: The Supreme Court's distinction is between religious status (you cannot exclude on that ground alone) and religious use (a state may have stronger arguments for not funding distinctly religious activity). The Teacher Support System grants are for mentoring teachers, a status-based question. The opinion does not address pure use-based exclusions.

Q: Where do the federal cases come from?
A: Trinity Lutheran was a Missouri playground-resurfacing grant case. Espinoza was a Montana scholarship tax-credit case. Carson was a Maine tuition-assistance case for towns without high schools. All three turned on Free Exercise discrimination claims.

Q: What is the Teacher Support System?
A: A mandatory mentoring program for new teachers in North Dakota. Teachers with an initial two-year license must participate to qualify for renewal to a five-year license. The mentor side of the program is supported by state grants.

Background and statutory framework

The Blaine Amendment to the North Dakota Constitution (Article VIII, § 5) was adopted in 1889 and provides: "No money raised for the support of the public schools of the state shall be appropriated to or used for the support of any sectarian school." It is one of 38 such state amendments inspired by a failed 1875 federal amendment proposed by then-Speaker James G. Blaine. Gerhardt v. Heid, 267 N.W. 127 (N.D. 1936), interpreted "sectarian institution" as one affiliated with or under the control of a religious sect.

The Teacher Support System is created by N.D.C.C. § 15.1-13-10(9) and N.D.A.C. § 67.1-04-04-03. The 2021 Legislature appropriated $2,125,764 to ESPB for the 2021-23 biennium for the grant program.

The legal landscape changed substantially between 2017 and 2022. Trinity Lutheran established that religious status cannot be the basis for exclusion from a generally available program. Espinoza applied that rule to state Blaine Amendments specifically. Carson extended it to programs of tuition assistance. Read together, the trio leaves Blaine Amendments largely unenforceable in any context where they would discriminate based on religious character.

Citations and references

Constitutional and statutory authority:

• N.D. Const. art. VIII, § 5
• N.D.C.C. § 15.1-13-10

U.S. Supreme Court cases:

• Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)
• Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246 (2020)
• Carson v. Makin, 142 S. Ct. 1987 (2022)

Request and conclusion (from landing page)

December 1, 2022

Issued to: North Dakota Education Standards and Practices Board

Request: Does Article VIII, Section 5 of the North Dakota Constitution prohibit ND ESPB from providing grants from the Teacher Support System to teachers at sectarian schools?

Conclusion: teachers at private schools may participate in the Teach Support System as mentors and receive grants for their participation because participation in the mentor program is a requirement for renewed licensure and the lack of contrary language in statute. Article VIII, Section 5 bars appropriated funds and public money from being used to support any sectarian school, however, the United States Supreme Court has held that laws cannot be enforced in any situation where doing so would disadvantage a sectarian school as compared to a non-religious private school simply because of the school’s sectarian nature. Based on binding United States Supreme Court caselaw, it is my opinion the Blaine Amendment unconstitutionally disadvantages sectarian schools. As a result, it is my opinion that teachers at all schools, including both non-religious and sectarian private schools, may participate in the Teacher Support Program as mentors, and may receive grants to support their participation.

2022-L – 07

Source

• Landing page: https://attorneygeneral.nd.gov/teachers-at-sectarian-schools-may-receive-grants-from-the-teacher-support-system/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-L-07.pdf

Original opinion text

STATE OF NORTH DAKOTA

OFFICE OF ATTORNEY GENERAL

www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

LETTER OPINION
2022-L-07

Dr. Rebecca S. Pitkin

Executive Director

North Dakota Education Standards and Practices Board
2718 Gateway Ave., Ste. 204

Bismarck, ND 58503-0585

Dear Dr. Pitkin:

Thank you for your questions regarding the Teacher Support System and the availability of related
grants for private school teachers. Specifically, you ask (1) whether private school teachers who are
also mentors may participate in the Teacher Support System, and (2) whether private school teachers
who are also mentors may receive grants to participate in the Teacher Support System. Nowhere in the
applicable statute or administrative code are non-public school teachers prohibited from participating in
the Teacher Support System. However, the context of your question indicates the key issue underlying
these questions is whether Article VIII, Section 5 of the North Dakota Constitution (“the Blaine
Amendment”)! prohibits teachers at sectarian schools from receiving grants from the Teacher Support
System. It is my opinion that the Blaine Amendment is not enforceable under United States Supreme
Court caselaw, and therefore teachers at sectarian schools may receive grants from the Teacher Support
System.

ANALYSIS

The Blaine Amendment was adopted as Article 152 of the 1889 North Dakota Constitution and
provides that “[n]o money raised for the support of the public schools of the state shall be appropriated
to or used for the support of any sectarian school.” The North Dakota Supreme Court has held “[a]
‘sectarian institution’ is ‘an institution affiliated with a particular religious sect or denomination, or
under the control or governing influence of such sect or denomination.’”? Over time, the definition of
“sectarian” has broadened to include “relating to” or “supporting a particular religious group and its
beliefs.“ As aresult, the Blaine Amendment effectively means “[n]o money raised for the support of

' In 1875, then Speaker of the U.S. House of Representatives James Blaine proposed an amendment to
the United States Constitution which would prohibit states from providing public funds to religious
schools. After Blaine’s amendment failed to pass the U.S. Senate, 38 states passed amendments to their
state constitutions barring state funding of religious or sectarian schools. These amendments are
colloquially referred to as “Blaine Amendments.”

*\N.D. Const. art. VIII, § 5.

3 Gerhardt v. Heid, 267 N.W. 127, 131 (N.D. 1936).

4 Black’s Law Dictionary (11™ ed. 2019).

LETTER OPINION 2022-L-07
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November 29, 2022

the support of the public schools of the state shall be appropriated to or used for the support of any
[religious private school].”*

The Teacher Support System is a mentoring program for new teachers operated by the North Dakota
Education Standards and Practices Board (ESPB).° A teacher who holds an initial, two-year license
must participate in the Teacher Support System to be eligible to apply for a five-year-renewal license.’
The legislature appropriated $2,125,764 to the ESPB for the 2021-23 biennium to provide grants to
Teacher Support System mentors.’ The applicable statutes and administrative code do not prohibit
private school teachers from participating in the Teacher Support System as either mentors or mentees.
Given that participation in the mentor program is a requirement for renewed licensure and the lack of
contrary language in statute, it is my opinion that teachers at private schools may participate in the
Teach Support System as mentors. Similarly, it is my opinion that teachers at private schools may
receive grants for participating in the Teacher Support System.

However, this does not end the inquiry. As noted above, the Blaine Amendment bars appropriated
funds and public money from being used to support any sectarian school. On its face, this prohibition
would apply to Teacher Support System grants provided to mentors employed by sectarian schools.
However, in two recent decisions, the United States Supreme Court cast doubt on whether Blaine
Amendments can be reconciled with the First Amendment to the United States Constitution. In Trinity
Lutheran Church of Columbia, Inc. v Comer,’ the Court held a “law . . . may not discriminate against
‘some or all religious beliefs.’ . . . The Free Exercise Clause protects against laws that ‘impose []
special disabilities on the basis of . . . religious status.’”!® The Blaine Amendment functionally
prohibits religious private schools from receiving grants from the Teacher Support System, while
teachers at non-religious private schools are allowed to receive the grants. This is precisely the type of
disadvantage the Supreme Court concluded may not be imposed on the basis of religious status.!!

The Supreme Court went even further in Espinoza v. Montana Dept. of Revenue.'? In that case, the
Court held that, because Montana’s Blaine Amendment had been applied to discriminate against
schools and parents based on the religious character of the school at issue, the amendment was subject
to the strictest level of judicial scrutiny.'? The Court made clear an interest in separating church and

°N.D. Const. art. VIII, § 5.

°N.D.A.C. § 67.1-04-04-03.

TN.D.C.C. § 15.1-13-10(9).

8 See H.B. 1013, 2021 N.D. Leg., Section 1, Subd. 1 - part of the “Grants — program and passthrough”
line item.

° 137 S.Ct. 2012 (2017).

'0 Td. at 2021 (citations omitted).

'l Td, at 2021-2022.

'2 140 S.Ct. 2246 (2020).

'3 Td. at 2260 (noting that, to satisfy this “strictest scrutiny” test, the government action in question
must “advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those

LETTER OPINION 2022-L-07
Page 3
November 29, 2022

State “cannot qualify as compelling in the face of the infringement of free exercise.”'? The Court
concluded that “[a] State need not subsidize private education. But once a State decides to do so, it
cannot disqualify some private schools solely because they are religious.”!> Recently, the Supreme
Court expanded the Espinoza holding in Carson v. Makin.'® In Carson, the Court held the application
of Maine’s Blaine Amendment to generally available tuition assistance payments violated the Free
Exercise Clause of the First Amendment. The Court said the Blaine Amendment impermissibly denied
public funding to certain private schools solely because the schools are religious.!7

Here, as in Carson and Espinoza, the state created a mentorship program that is mandatory for
licensure renewal. Fairly applied, the Blaine Amendment would permit teachers at public schools and
non-religious private schools to receive grants for participating in the mandatory program, while
barring teachers at religious private schools from receiving the same grants. Based on Trinity Lutheran,
Espinoza, and Carson, the Blaine Amendment cannot be enforced in any situation where doing so
would disadvantage a sectarian school as compared to a non-religious private school simply because of
the school’s sectarian nature. As a result, it is my opinion the United States Supreme Court has barred
the state from enforcing its Blaine Amendment.

Based on binding United States Supreme Court caselaw, it is my opinion the Blaine Amendment
unconstitutionally disadvantages sectarian schools. As a result, it is my opinion that teachers at all
schools, including both non-religious and sectarian private schools, may participate in the Teacher
Support Program as mentors, and may receive grants to support their participation.

Attorney General

This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until
such time as the question presented is decided by the courts.'®

interests.” (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546
(1993)))

'4 Espinoza v. Mont. Dep’t of Revenue, 140 S.Ct. 2246, 2260 (2020).

'S Td. at 2261.

16 142 S.Ct. 1987 (2022).

'7 Td. at 2002.

18 See State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946).