School Vouchers

School voucher programs, which give government checks to parents to send their children to private or religious schools, are currently operating in just two communities nationwide–Milwaukee and Cleveland. While the Milwaukee program has survived challenges all the way up to the U.S. Supreme Court, the Cleveland effort is still under review by the Ohio Supreme Court. Parents in Vermont and Maine are also seeking permission for voucher programs.

Meanwhile, the legal battle to allow school vouchers in Massachusetts is progressing on two fronts at once: in federal court and in state court.

In March 1998, three mothers filed a federal lawsuit in Boston to overturn two sections of the Massachusetts Constitution: the “anti-aid amendment,” which bars the use of public money for private or religious schools, and the “anti-initiative amendment,” which prevents any religious question (including repeal of the anti-aid amendment) from being put to voters through a citizen ballot initiative.

The Becket Fund for Religious Liberty, a Washington, D.C.-based legal advocacy group representing the mothers, claims that parents who want to offset the cost of religious school tuition are “disabled in the political process” by constitutional provisions rooted in anti-Catholic bigotry. The suit asserts that the amendments violate the U.S. Constitution’s “equal protection clause,” which prohibits laws making it more difficult for one group of citizens to seek aid from the government than others.

In September, the court agreed that an initiative petition drive to put the school voucher question on the ballot in Massachusetts could proceed, even though the effort was still technically illegal. The judge wanted to allow for the collection of signatures in case the anti-initiative amendment was later ruled unconstitutional.

The Committee for Parental Choice in Education gathered signatures through the fall and submitted about 59,000, well more than the 57,100 required. But Secretary of State William Galvin invalidated approximately 3,500 signatures in December, saying the petition sheets had been illegally marked with highlighters or underlining. (His decision followed a June 1998 Supreme Judicial Court ruling that petition forms may not be altered in any way because it could distract the signers.) On Jan. 6, a lawyer for the first ten signers appealed Galvin’s decision to the Supreme Judicial Court.

Both the state and federal cases were still pending at press time.

If the federal court sides with voucher supporters and rules the anti-aid amendment unconstitutional, there would still be no voucher program in Massachusetts. The Legislature would need to pass a law setting one up.

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However, if the federal court rules that the anti-aid language is constitutional, while the anti-initiative amendment is not, the future of the campaign for school vouchers will rest with the state court. It will be up to the SJC to decide whether the Committee’s initiative petition to change the constitution to allow school vouchers can go forward.

If so, 50 of the state’s 200 legislators must approve the proposed constitutional change in two successive sessions of the Legislature. The earliest it could go on the ballot is November 2002. Only if voters then approve the change would the Legislature be free to institute a voucher program.