Massachusetts

AMENDMENT LANGUAGE

State Constitutional Provision

Mass. Const. art. XVIII, § 2: "All moneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the commonwealth for the support of common schools shall be applied to, and expended in, no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is expended; and no grant, appropriation or use of public money or property or loan of public credit shall be made or authorized by the commonwealth or any political division thereof for the purpose of founding, maintaining or aiding any other school or institution of learning, whether under public control or otherwise, wherein any denominational doctrine is inculcated, or any other school, or any college, infirmary, hospital, institution, or educational, charitable or religious undertaking which is not publicly owned and under the exclusive control, order and superintendence of public officers or public agents authorized by the commonwealth or federal authority or both, except that appropriations may be made for the maintenance and support of the Soldiers' Home in Massachusetts and for free public libraries in any city or town, and to carry out legal obligations, if any, already entered into; and no such grant, appropriation or use of public money or property or loan of public credit shall be made or authorized for the purpose of founding, maintaining or aiding any church, religious denomination or society." (Passed 11/06/1917)

RELEVANT CASES

State Courts

Fifty-One Hispanic Residents of Chelsea v. School Committee of Chelsea, 659 N.E.2d 277 (Mass. 1996) (Massachusetts Supreme Court held that an act which allowed a private university to participate in managing a public school system, and a management agreement between the university and the school system, did not violate the Massachusetts constitutional provision prohibiting use of public funds in aid of nonpublic schools, because the university was a "public agent" that was supervised by the public school committee).

Collins v. Secretary of the Commonwealth, 407 Mass. 837 (1990) (Article of state constitution excluding from referendum process any law that relates to religion, religious practices, or religious institutions barred subjecting to referendum an act making it unlawful to discriminate on basis of sexual orientation).

Opinion of the Justices to the Senate, 514 N.E.2d 353 (Mass. 1987) (Massachusetts Supreme Court opined that a senate bill providing for a tax deduction for public and non-public elementary and secondary school tuition, textbooks, and transportation expenses amounted to the use of public money in support of non-public schools, in violation of a Massachusetts constitutional provision).

Commonwealth v. School Committee of Springfield, 382 Mass. 665 (1981) (Disbursement of public funds to educate school-age children in state-approved private schools and institutions, when no public school programs were available to meet such children's special educational needs, as allowed by statute, did not violate constitutional amendment prohibiting use of public money for the purpose of founding, maintaining or aiding private schools).

Attorney General v. School Committee of Essex, 439 N.E.2d 770 (Mass. 1982) (Massachusetts Supreme Court held that a Massachusetts statute requiring that publicly-funded school transportation be provided to private school students did not violate the Massachusetts constitutional provision prohibiting public aid to private schools).

Colo v. Treasurer and Receiver General, 392 N.E.2d 1195 (Mass. App. 1979) (Massachusetts appellate court held that a Massachusetts statute authorizing the expenditure of public funds to pay the salaries of legislative chaplains did not violate the Massachusetts constitutional provision prohibiting public aid to churches and religious groups).

Bloom v. School Committee of Springfield, 376 Mass. 35 (1978) (Statute requiring school committees to loan textbooks to pupils attending private schools, sectarian or nonsectarian, offends provision of Commonwealth Constitution prohibiting use of public money or property for purpose of founding, maintaining or aiding such schools, notwithstanding that possession of the books is, at least nominally, in the pupils rather than in the schools they attend).

Opinion of the Justices, 259 N.E.2d 564 (Mass. 1970) (Massachusetts Supreme Court opined that a proposed bill authorizing financial assistance for all elementary and secondary school children, public and private, violated the Massachusetts constitutional provision prohibiting the appropriation of public funds for the aid of non-public schools).

· Opinion of the Justices, 258 N.E.2d 779 (Mass. 1970) (Massachusetts Supreme Court opined that a pending bill providing for the state's purchase of secular educational services from non-public schools would result in substantial assistance to non-public schools from public funds, and would thus violate the Massachusetts constitutional provision prohibiting public aid of non-public schools).

· Opinion of the Justices, 236 N.E.2d 523 (Mass. 1968) (Massachusetts Supreme Court opined that a statute creating a state authority to assist secular institutions for higher education in construction, financing, and refinancing of building projects, using funds derived from bonds, notes, and other sources not involving public credit, did not violate the Massachusetts constitutional provision prohibiting the use of public funds and credit in aid of non-public institutions, because promotion of secular higher education was a "public purpose" as long as the statute did not authorize the support of institutions formed for training clergymen or other members of a religious group).

Opinion of the Justices, 214 Mass. 599 (1913) (Public schools never have been understood to include higher institutions of learning like colleges and universities. All moneys raised by taxation for the purpose of expenditure within the sphere of the public or common schools, as these words generally have been understood, must be disbursed exclusively for the support of such schools and cannot be diverted to any other kind of school maintained in whole or in part by any religious sect. But there is no constitutional prohibition against appropriations for higher educational institutions, societies or undertakings under sectarian or ecclesiastical control).

Spiller v. Inhabitants of Woburn, 12 Allen 127 (Mass. 1866) (The committee of the Town of Woburn did not exceed their authority in passing an order that the Bible should be read and prayer offered at the opening of the schools on the morning of each day).

Federal Courts

Boyette v. Galvin, No. 98-CV-10377 (D. Mass. 1998).

Matthew J. v. Massachusetts Dept. of Educ., 989 F. Supp. 380 (D.Mass. 1998) (Massachusetts Federal District Court held that the reimbursement of special education costs under the Individuals with Disabilities Education Act for a mentally ill high school student in a Christian sectarian school outside the state did not violate the Massachusetts constitutional provision prohibiting public aid to parochial schools).

ONGOING LITIGATION

Wirzburger v. Galvin (formerly Boyette v. Galvin) (a summary of the case can be viewed on the Becket Fund website).

REPEAL EFFORTS

See the Heritage Foundation website for a list of state contacts.

LAW REVIEW ARTICLE

Richard Fossey & Robert LeBlanc, Vouchers for Sectarian Schools After Zelman: Will the First Circuit Expose Anti-Catholic Bigotry in the Massachusetts Constitution? 193 Education Law Reporter 343-63 (2005). (Reprinted by permission from West Publishing Company.)