12 Cath. Law. 272 (1966)
In summary, it is fair to say that to regard the rule of the Judd case as retaining its original vitality would be to lend undue credence to an erroneous construction of the 1938 amendment to Section 3 of Article XI of the New York State Constitution. For, although that amendment provided only for transportation of pupils, it should be construed in its true light as a reaction to the Judd decision which called it forth. As such it specifically validated only the provision of transportation which the legislature had enacted in 1936 and which the Judd Court had nullified. But it ought not to be regarded as a considered and sweeping condemnation of all other forms of public aid to those pupils who choose to attend parochial schools. The newer and fundamental developments since 1938 affirm the basic constitutionality and indeed the fairness, of achieving a public purpose through secular aid to all pupils, including those attending parochial schools.
It would be a mistake, however, to regard the generally more lenient trend of judicial decisions as having removed all need for the removal of Article XI, Section 3, from the New York State Constitution. The enduring vitality of this Blaine Amendment as a threat to efforts to accommodate the interests of government and religion was dramatized by the decision in Board of Educ. v. Allen, in which the supreme court in Albany County invalidated an amendment to the Education Law which empowered local school boards to lend secular textbooks to children attending church-related schools. The court unnecessarily discoursed upon the First Amendment to the United States Constitution and construed the first amendment, in line with the views of Mr. Justice Douglas of the United States Supreme Court, as prohibiting the sort of financial aid to parochial schools which was involved in the textbook loans. The excursion into the first amendment was unnecessary because the court bottomed its decision upon Article XI, Section 3 of the New York Constitution and rejected the "pupil benefit theory" in so doing, in reliance upon the 1938 case of Judd v. Board of Educ. and the 1922 case of Smith v. Donahue. The court in the Allen case regarded the extreme position of the Judd case as retaining its full effect, save for the transportation exception adopted by the Convention of 1938, despite the events and trends of the past twenty-eight years as outlined above in this study. It may be that the Allen ruling will be overturned on appeal. But, in any event, the main effect of the Allen case may prove to be its dramatization of the need for a total elimination of the Blaine Amendment, an unfair embodiment of restrictive conceptions long since rejected by the majority of the people of this state and nation.
Charles E. Rice,
The New York State Constitution and Aid to Church-Related Schools,
12 Cath. Law. 272 (1966).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/74
Reprinted with permission of the Catholic Lawyer.