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Published in Print: June 7, 2000, as Two Strikes Hit Mass. Effort To Repeal Voucher Barrier

Two Strikes Hit Mass. Effort To Repeal Voucher Barrier

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Efforts by voucher proponents in Massachusetts to repeal the state's ban on public funding of religious schools have suffered twin setbacks, in a federal court and the legislature.

As part of a 2-year-old lawsuit challenging a state constitutional provision that bars public funding of religious schools, U.S. District Judge George O'Toole denied a motion last month that would have set up a vote by lawmakers on a proposed ballot initiative to repeal that ban.

Then, during a May 10 joint legislative session called to consider constitutional measures, state Senate President Thomas F. Birmingham rebuffed attempts by House leaders to place the issue on the agenda. Rep. John H. Rogers, who earlier that week slipped the measure in during an informal session of the House, challenged Mr. Birmingham but backed down after a widely publicized confrontation.

The setbacks leave a pro-voucher coalition of parents looking toward a decision on the merits of the case before Judge O'Toole. The suit challenges an 1855 amendment to the state constitution that bars public funds from going to religious schools, as well as another provision added in 1917 that actually prohibits petition initiatives aimed at repealing that ban.

Represented by the Becket Fund for Religious Liberty, a public-interest law firm based in Washington, the parents are challenging the anti-aid amendments on the grounds that they violate their rights under the First Amendment and the equal-protection clause of the U.S. Constitution.

Going Door to Door

In 1998, the judge signed an order permitting the plaintiffs to circulate a petition to collect the signatures needed to move the repeal measure forward while the case was still unresolved.

Nearly 59,000 signatures were collected that year, but several thousand were disqualified and the effort fell short of the 57,100 needed to bring the issue before a constitutional convention, a joint session of the legislature that meets annually in Massachusetts to consider proposed amendments to the state constitution. Another petition drive began in 1999, and organizers collected 78,000 signatures. But for the petition to come before the legislature, and then the voters, state Attorney General Thomas F. Reilly had to certify the signatures.

In September, Mr. Reilly decided the state constitution prohibited that step because of the 1917 amendment. The Becket Fund filed a motion for a preliminary injunction with the federal district court in Boston seeking to force the attorney general to certify the petition so legislators could take it up. On May 5, Judge O'Toole denied that motion.

James A. Peyser

"We continue to believe our clients have a strong case," said Kevin Hasson, the general counsel with the Becket Fund. "School choice should be allowed to stand or fall on its merits, not shut off from debate based on these two anti-religious amendments, which are holdovers from a dark period in Massachusetts history."

The anti-aid amendment, Mr. Hasson said, was adopted at the height of anti-immigrant and anti-Catholic bigotry in the 1850s.

James A. Peyser, the chairman of the Massachusetts board of education and the executive director of the Pioneer Institute, a Boston think tank that supports private school vouchers, described the judge's ruling as a setback for opening up the school system to more competition.

But Paul Dunphy, the assistant project director for the Boston-based Citizens for Public Schools, a coalition of about 50 groups in the state, called vouchers a knee-jerk reaction to the public's desire for true changes that would improve education for all students.

He said he is concerned that despite the judge's ruling, legislators may take up the issue of a ballot initiative when the joint session reconvenes on June 28.

"There is a procedural issue being ignored by a few legislators," Mr. Dunphy said. "This flies in the face of rulings by the attorney general and the court."

Vol. 19, Issue 39, Page 20

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