Overcoming State Constitutional Barriers
Currently, 37 states have constitutional provisions restricting public assistance to Catholic school education. Overcoming such restrictions has been of tremendous help in both passing laws favorable to Catholic education, and in protecting them against legal challenges.
Of those states where restrictions currently exist, 19 of them have discovered statutory ways to craft legislation which provides assistance to Catholic school communities, while still respecting their constitutions. In the few states in which state constitutional provisions seemed an overwhelming barrier, constitutional amendments creating exceptions have been necessary.
In 1973, Louisiana rewrote its state constitution by substituting "Blaine" language with a provision stating that is the responsibility of the state to provide for the education of all its citizens, and, additionally, to establish and maintain a system of public schools. Louisiana now constitutionally recognizes it has a public purpose to aid in education all its citizens regardless of what kind of school they attend. In 1986 the people of South Dakota voted to amend their constitution specifically to allow a textbook loan program.
On March 3rd, 1998 a group of parents of diverse faiths and backgrounds filed suit in federal court alleging that two provisions of the Massachusetts state constitution are discriminatory and undemocratic.
Nineteen of thirty-seven
states where restrictions currently exist have discovered statutory ways to craft legislation which provides assistance to Catholic school communities, while still respecting their constitutions. |
This civil rights lawsuit challenges the "Anti-Aid" Amendment, Article 18 of the Massachusetts constitution, and the "Anti-Petition" provisions of Article 48. The Anti-Aid amendment, passed in 1854 at the height of the anti-immigrant and anti-Catholic "Know-Nothing" movement bars any public funds from going to religious schools. Such a provision has also been used to bar the state legislature from enacting legislation regarding education tax relief, opportunity scholarships or similar reforms empowering parent choice in schooling.
Plaintiffs also challenge provisions of Article 48, which explicitly bar citizen petition initiatives that attempt to repeal or alter the Anti-Aid Amendment. A couple of years ago, two of the plaintiffs and other citizens sought to start such a petition drive, but their application for petition was denied.
The suit is only aimed at eliminating barriers now halting legislative consideration of public assistance to religious schools, and if successful will not result in any particular aid package. But if successful, the suit will pave the way in Massachusetts for the full and fair consideration of education reforms which benefit all children, regardless of where they attend school.
Advocates of empowering a parent's freedom to choose the learning community for their children's full development, and advocates of equitable services and benefits for Catholic school communities, need to be mindful of state constitutions. State constitutional provisions affecting aid involving Catholic school teachers, children and their families vary from the permissible to the impossible.
Where state constitutions echo principles of the First Amendment's Establishment Clause, state legislative measures may be enough to gain support for Catholic school education. Where state constitutions are more rigid than the broad outlines of the Establishment Clause, changing a state constitution may be needed to achieve educational liberty and justice for all.