WILLIAM F. GALVIN, in his official capacity 
as Secretary of the Commonwealth of 
Massachusetts; ARGEO PAUL CELLUCCI, 
in his official capacity as Governor of the 
Commonwealth of Massachusetts; FRANK W. 
HAYDU III, in his official capacity as Interim 
Commissioner of the Massachusetts Department 
of Education;  JOSEPH D. MALONE, in his 
official capacity as Treasurer and Receiver 
General of the Commonwealth of Massachusetts; 
L. SCOTT HARSHBARGER, in his official 
capacity as Attorney General of Massachusetts; 
and JOHN R. SILBER, in his official 
capacity as Chairman of the Massachusetts 
Board of Education, 
 
                                         Defendants. 
  __________________________________________ 
 

  1. This is a civil rights action under the United States Constitution and 28 U.S.C. § 1983 for a declaration that Amendment Article 18 of the Massachusetts Constitution, as amended by Amendment Article 46 and Amendment Article 103 of the Massachusetts Constitution (collectively, the "Anti-Aid Amendment"), and the first clause of the first paragraph and the entire second paragraph of Section 2 of Part II of Amendment Article 48 of the Massachusetts Constitution, as amended by Amendment Article 81 and Amendment Article 108 of the Massachusetts Constitution (the "Anti- Initiative Amendment") are invalid as deprivations of Plaintiffs' rights under the United States Constitution. 

   2. Plaintiffs are Massachusetts schoolchildren and their parents who seek to obtain an education that is consistent with their moral and religious beliefs, which they believe can best be  achieved in their cases in non-public schools.  The Anti- Aid Amendment bars them from seeking, through the normal democratic process, any form of state aid to assist them in meeting the cost of tuition and other expenses at non- public schools.  Moreover, while citizens of the Commonwealth may ordinarily attempt to amend the Massachusetts Constitution through the initiative petition process, the Anti- Initiative Amendment bars Plaintiffs from attempting to alter or repeal the Anti-Aid Amendment through the initiative petition process.  These two Amendments, both independently and working in tandem, deprive Plaintiffs of their rights to Equal Protection under the Fourteenth Amendment of the United States Constitution and their rights to petition the government, their rights to free speech, and their rights to freedom of religion under the First Amendment of the United States Constitution.  This action seeks a declaration that the challenged amendments are unconstitutional and permanent injunctive relief to prevent further deprivation of Plaintiffs' constitutional rights. 
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   3. Plaintiffs Patricia Boyette and her children Maya and Monique are residents of Boston.  Mrs. Boyette is a single mother who is partially disabled.  Her sole income comes from Social Security Disability payments and a part-time job from which she has a take home pay of $121 per week.  She and her children are Pentecostal, and Mrs. Boyette wishes her children to be educated in a school that reinforces the values, morals, and beliefs that she teaches her daughters at home.  Monique is in the eighth grade and currently attends a private Catholic school, for which Mrs. Boyette pays $100 a year tuition due to subsidization of the tuition by the school.  Maya is in the fifth grade and attends a public school in Boston, where she receives special educational services.  Mrs. Boyette would like to send Maya to a private religious school, but cannot on her income afford a school that is able to provide Maya with the special services she receives in the Boston Public Schools.  Mrs. Boyette and her children are African-American.  Mrs. Boyette is a taxpayer of the Commonwealth of Massachusetts. 

   4. Plaintiffs Susan Wirzburger and her son Michael Wirzburger reside in a suburb of Boston.  The Wirzburgers are Roman Catholic, and Michael attends a private Catholic School where he is in the fifth grade.  Mrs. Wirzburger believes that her son should receive a God-centered education not available in public schools.  Mrs. Wirzburger and her husband pay the tuition themselves.  However, she has had to discontinue her pursuit of a college degree in order to pay Michael's tuition of more than $3,000 because the family cannot afford to pay both tuitions and because Mrs. Wirzburger must work to pay the costs of Michael's tuition, books and transportation.  Mrs. Wirzburger is a taxpayer of the Commonwealth of Massachusetts. 

   5. Plaintiffs Rita Zubricki and her daughter Elizabeth reside in a suburb of Boston.  Elizabeth attends a private Roman Catholic school, and is in the eighth grade.  Mrs. Zubricki and her husband have seven other children, all of whom attended Catholic school at great sacrifice to this middle class family.  Mrs. Zubricki believes that sending Elizabeth to a school that emphasizes Catholic teachings is important to her spiritual development, character, and compassion.  Mrs. Zubricki is a taxpayer of the Commonwealth of Massachusetts. 

   6. Defendants are officers of the Commonwealth of Massachusetts whose duties include interpreting, applying and enforcing the Anti-Aid Amendment and the Anti- Initiative Amendment.  Defendant William F. Galvin is Secretary of the Commonwealth of Massachusetts. Defendant Argeo Paul Cellucci is the Governor of the Commonwealth of Massachusetts.  Defendant Frank W. Haydu III is interim Commissioner of the Massachusetts Department of Education.  Defendant Joseph D. Malone is Treasurer and Receiver General of Massachusetts.  Defendant L. Scott Harshbarger is Attorney General of Massachusetts.  Defendant John R. Silber is Chairman of the Massachusetts Board of Education.  Each is named as a defendant herein only in his official capacity as an executive officer of the Commonwealth of Massachusetts. 
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   7. The Anti-Aid Amendment was approved by the General Court of Massachusetts during its 1854 and 1855 legislative sessions. 

   8. From the late 1830's through the 1850's, an influx of immigrants to America from Europe gave rise to widespread popular prejudice against immigrants in general and Catholics in particular in Massachusetts and elsewhere in the United States.  In Massachusetts, this prejudice manifested itself in actions ranging from anti-immigrant and anti-Catholic rallies, speeches and literature distribution to acts of violence such as the blowing up of a Catholic church and a mob attacking a Catholic church in Chelsea and carrying away a cross. 

   9. Various organized nativist groups arose around the country and in Massachusetts in the 1840's and 50's.  These organizations were pledged to protect the supremacy of native-born, white, Anglo-Saxon Protestants in the United States by controlling state governments and passing restrictive legislation in furtherance of their goals. 

   10. The American Party--known as the "Know-Nothing" party because its members were pledged to secrecy about their organization, its members and its funding-- was a combination of several nativist groups that joined together during 1852 and 1853 to form a national political party.  Its primary purpose was to consolidate Protestant, Anglo- Saxon power and protect its culture, as well as to resist encroachments on that power and culture by Catholics and other immigrants. 

   11. During their 1854 and 1855 legislative sessions all members of the Massachusetts Senate and all but four members of the Massachusetts House of Representatives were members of the Know-Nothing Party, and the governor of Massachusetts, Henry J. Gardner, was also a member. 

   12. The Know-Nothing majorities in the General Court proposed and adopted the Anti-Aid Amendment as part of a program of maintaining white, Anglo-Saxon- Protestant supremacy in Massachusetts and the United States. 

   13. The principal motivating factors behind the Anti-Aid Amendment were animus toward immigrants, and Catholic immigrants in particular, an attempt to preserve the cultural and political hegemony of the Protestant establishment in Massachusetts, and an attempt to preserve the Protestant nature and curriculum of the public schools.  The Anti-Aid Amendment mandated that moneys raised by local governments or appropriated by the state for the support of the common schools "shall never be appropriated to any religious sect for the maintenance exclusively of its own school," thus requiring that all school funds go to the public schools under the control of the Protestant establishment. 

   14. The anti-Catholic, anti-immigrant bias of the Know-Nothing legislature was further  evidenced by measures such as a law that made the Protestant version of the Bible compulsory reading in all public schools, a bill that sought to prevent immigrants from voting until they had been residents of Massachusetts for twenty-one years which passed in one session but failed to pass the following year, and the establishment by the legislature of a Nunnery Investigating Committee that pursued outlandish allegations such as the accusation that convents contained underground dungeons. 
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   16. From the 1890's to the first decade of the twentieth century, a revival of nativist sentiments throughout the United States resulted in the formation of the American Protective Association, whose members took an oath never to vote for, employ, or go on strike with Catholics.  In Massachusetts a group called the Immigration Restriction League was founded by a group of Boston civic leaders drawn from old, powerful families. 

   17. In 1913 the Supreme Judicial Court of Massachusetts issued an opinion to the legislature that the Anti-Aid Amendment in its then-current form did not prohibit appropriations for higher educational institutions under sectarian or ecclesiastical control, and that it was unclear whether it prohibited appropriations in aid of churches, religious denominations, or religious societies. 

   18. The depression of 1914 increased anti-immigrant sentiment throughout the country.  In Massachusetts, a group called the American Minute Men organized opposition to Catholic candidates in state-wide elections, in response to the growing influence of Catholics in state-wide politics. 

   19. In 1917, a Constitutional Convention was convened in Massachusetts for the purpose, among others, of amending the Anti-Aid Amendment so as to prohibit appropriations to religious undertakings or higher educational institutions not publicly controlled and to prohibit appropriations to other private organizations.  The convening of the Constitutional Convention, and the resulting changes to the Anti-Aid Amendment and the adoption of the Anti-Initiative  Amendment, were motivated by anti-immigrant and anti-Catholic animus.  A New York Times editorial in 1917 called the Massachusetts Constitutional Convention "a child of politics" and said that "The so-called ‘sectarian' or ‘non-sectarian' amendment, directed in reality against the Catholic Church, is a fine bit of political bigotry." 

   20. As a result of the convention, the Anti-Aid Amendment was amended, inter alia, to bar appropriations for "founding, maintaining or aiding any 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, institutions 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 . . ." with certain exceptions. 

   21. The Anti-Initiative Amendment, also adopted in the 1917-18 convention, prohibits any citizen initiative petition that "relates to religion, religious practices or religious institutions."  The Anti-Initiative Amendment also specifically states that the Anti-Aid Amendment may not be the subject of an initiative amendment, nor may the Anti-Initiative Amendment itself be the subject of an initiative petition.  The purpose and effect of the Anti-Initiative Amendment is to insulate the Anti-Aid Amendment and the Anti-Initiative Amendment in perpetuity from modification or repeal through the initiative process, and thereby to perpetuate the goals and purposes of the Anti-Aid Amendment. 

   22. The revision of the Anti-Aid Amendment and the adoption of the Anti- Initiative Amendment were motivated by anti-immigrant and anti-Catholic animus. 

   23. The Anti-Aid Amendment was amended again in 1974.  Among the revisions was the addition of a provision permitting appropriations for grants-in-aid to "private higher educational institutions or to students or parents or guardians of students attending such institutions." Amendment Article 96 of the Massachusetts Constitution expressly empowers the Massachusetts legislature to authorize the Commonwealth to make loans for tuition and board to students attending non-governmental colleges, universities or other institutions of higher learning. 
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   24. Despite the revisions expanding the Anti-Aid Amendment to make it applicable to  private institutions (other than institutions of higher learning after 1974), Defendants have engaged in a pattern and practice of permitting public funds to go to various charitable organizations that are non-religious in violation of the current language of the Anti-Aid Amendment, while continuing to interpret and apply the Anti-Aid Amendment strictly toward religious schools and institutions consistent with the original language and purpose as adopted during the Know-Nothing period. 

   25. Among the many instances of appropriations being made to private organizations in violation of the terms of the Anti-Aid Amendment have been an appropriation to a private organization restoring a memorial battleship; various programs permitting grants, appropriations, public money and public property to be used by private parties and institutions for day-care programs and special education instruction under chapter 71B of the Massachusetts general laws; and various programs making loans of credit to private parties and institutions through state agencies such as the Massachusetts Industrial Finance Agency and the Massachusetts Health and Educational Facilities Authority. 

   26. Plaintiffs Susan Wirzburger, Rita Zubricki, and Patricia Boyette seek to obtain aid in the form of school vouchers or scholarships through the legislative process to help defray the costs they are currently incurring to educate their children in private religious schools, but are barred from doing so by the Anti-Aid Amendment.  Plaintiff  Patricia Boyette seeks to obtain aid in the form of vouchers or scholarships through the legislative process to enable her to send her daughter Maya to a religious school of her choice, but is barred from doing so by the Anti-Aid Amendment.  Susan Wirzburger has approached legislators regarding the possibility of legislation that would provide vouchers or scholarships and has been told that the Anti-Aid Amendment prohibits any such legislation and that any such effort would be futile. 

   27. The Anti-Aid Amendment, by its terms and as interpreted and applied by the Defendants, denies Plaintiffs the right to equal and full participation in the political process based on their religious beliefs; targets Plaintiffs and their religious beliefs, as well as their expression and pursuit of those beliefs, for unique disabilities not placed on other citizens of the Commonwealth; and substantially burdens Plaintiffs' ability to raise their children in a manner consistent with their religious beliefs. 
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   28. The Anti-Initiative Amendment limits Plaintiffs to seeking an amendment to change the Anti-Aid Amendment by means of a legislative petition, which requires an affirmative vote of a majority of the members of the Massachusetts legislature in two successive joint sessions in order for it to be submitted to the voters of Massachusetts for their approval, while an amendment resulting from an initiative petition requires only an affirmative vote of one-fourth of the members of the Massachusetts legislature in two successive joint sessions in order to be submitted to voters for approval. 

   29. On August 7, 1996, Plaintiffs Susan Wirzburger and Rita Zubricki, and ten others, submitted an initiative petition to amend the Anti-Aid Amendment to the Attorney General of the Commonwealth of Massachusetts, Defendant L. Scott Harshbarger, for certification as a proper question to be placed on the ballot as an initiative petition in accordance with the Massachusetts Constitution, Amendment Article 48, Section 3, which requires that before an initiative petition may be filed with the Secretary of the Commonwealth, the Attorney General must first certify that the petition "contains only subjects not excluded from the popular initiative."  If adopted, the petition would have allowed the Commonwealth to make loans and grants to parents, guardians, and students for private, parochial, and home-schooling of elementary and secondary students as are presently available to parents, guardians, and students for education at the college and university levels, and to private or parochial elementary or secondary schools as may presently be made to colleges and universities. 

   30. By letter dated September 4, 1996 the Attorney General of the Commonwealth, Defendant L. Scott Harshbarger, informed plaintiffs Susan Wirzburger and Rita Zubricki and the ten others who submitted the petition for certification as required by Massachusetts Constitution, Amendment Article 48, Section 3,  that the Anti- Initiative Amendment barred him from certifying the petition based on its "express, mandatory language".  The letter further stated that the Attorney General lacked authority under the Massachusetts Constitution to determine whether the provisions of the Anti- Initiative Amendment violated the provisions of the United States Constitution, stating that only a court of competent jurisdiction could so decide.  Plaintiffs continue to seek to submit a citizen initiative petition that would permit the Commonwealth to provide tuition aid to parents attending private schools, including private religious schools.  For example, Plaintiffs are currently circulating and have obtained  signatures for an initiative petition request for a constitutional amendment to amend the Anti-Aid Amendment to permit the commonwealth to provide loans, grants, or tax benefits to students, or their parents or guardians, to attend private educational institutions, including religious ones.  A blank copy is attached as exhibit A. 

   31. Defendants' interpretation, enforcement and application of the Anti- Initiative Amendment bars the Plaintiffs from full and equal participation in the political process because of their religious beliefs.  The Anti-Petition Amendment also limits the avenues of expression available to the Plaintiffs in a discriminatory manner and substantially burdens their ability to raise their children according to their religious beliefs. 

   32. Many controversial issues have been the subject of ballot initiative questions in recent years.  The Anti-Initiative Amendment discriminates against Plaintiffs by permitting such questions on the ballot through the initiative petition process while barring the Plaintiffs' proposed question. 

   33. This Court has jurisdiction over all claims in this Complaint, which are all claims arising under the United States Constitution and 42 U.S.C. § 1983.  This Court has jurisdiction to enter a declaratory judgment in this action pursuant to 28 U.S.C. § 2201.  This Court has jurisdiction to order injunctive relief in this action pursuant to 42 U.S.C. § 1983. 

   34. Venue lies in this district pursuant to 28 U.S.C. § 1391.  All Plaintiffs and all Defendants are located in this district, and the cause of action arose in this district. 
 

   35. Paragraphs 1 through 34 are incorporated by reference as if set forth fully herein. 

   36. The Anti-Initiative Amendment violates the Free Speech Clause of the First Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by denying Plaintiffs, in a discriminatory manner, access to the initiative petition process, an important avenue of political expression. 

   37. The Anti-Aid Amendment, by its terms and by Defendants' established pattern and practice of interpreting it in a discriminatory manner, violates the Free Speech Clause of the First Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by denying Plaintiffs equal access to the political process and the avenues of expression that it provides, by favoring private organizations with secular goals and messages over those with religious goals and messages, and by favoring institutions of higher learning over primary and secondary educational institutions. 
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   38. Paragraphs 1 through 34 are incorporated by reference as if set forth fully herein. 

   39. The Anti-Aid Amendment, by its terms and by Defendants' established pattern and practice of interpreting it in a discriminatory manner, violates the Free Exercise of Religion Clause of the First Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by barring Plaintiffs from equal and full participation in the political process based on their religious beliefs, by favoring private organizations with secular goals and messages over those with religious goals and messages, and by substantially burdening their right to direct the religious upbringing of their children. 

   40. The Anti-Initiative Amendment violates the Free Exercise Clause of the First Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by denying Plaintiffs equal and full access to the political process based on their religious beliefs. 
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   41. Paragraphs 1 through 34 are incorporated by reference as if set forth fully herein. 

   42. The Anti-Aid Amendment, by its terms and by Defendants' established pattern and practice of interpreting it in a discriminatory manner,  violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by barring Plaintiffs from equal and full participation in the political process based on their religious beliefs. 

   43. The Anti-Aid Amendment, by its terms and as applied by the Defendants, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because it is based on animus toward an identifiable group of which one or more of  Plaintiffs are members. 

   44. The Anti-Aid Amendment, by its terms and as applied by the Defendants, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because there is no valid basis for prohibiting students who attend private or parochial elementary and secondary institutions, or parents or guardians of such students, from petitioning the legislature for aid in the form of loans or grants-in-aid while permitting students who attend private or parochial higher educational institutions, or parents or guardians of such students, from seeking and receiving such assistance. 

   45. The Anti-Aid Amendment, as applied by the Defendants, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, because there is no valid basis for failing to apply the terms of the Anti-Aid Amendment and permitting loans, grants, appropriations, and other support for non-religious private organizations while applying the strict terms of the Anti-Aid Amendment to private organizations that are religiously affiliated or religious in nature and thereby discriminating against the Plaintiffs. 

   46. The Anti-Initiative Amendment violates the Equal Protection Clause because it denies Plaintiffs full and equal participation in the political process based on their religious beliefs. 

   47. The Anti-Initiative Amendment violates the Equal Protection Clause because its purpose is to insulate from the initiative petition process the Anti-Aid Amendment, an amendment that was based on animus toward an identifiable group of which one or more of Plaintiffs are members. 

   48. The Anti-Initiative Amendment violates the Equal Protection Clause because there is no valid basis for discriminating against Plaintiffs' desired initiative question while permitting questions that address various other controversial issues. 
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   49. Paragraphs 1 through 34 are incorporated by reference as if set forth fully herein. 

   50. The Anti-Initiative Amendment violates the Right to Petition Clause of the First Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by denying Plaintiffs, in a discriminatory manner, access to the initiative petition process. 

   51. The Anti-Aid Amendment, by its terms and by Defendants' established pattern and practice of interpreting it in a discriminatory manner, violates the Right to Petition Clause of the First Amendment of the United States Constitution as applied to the States by the Due Process Clause of the Fourteenth Amendment by denying Plaintiffs equal access to the political process, by favoring private organizations with secular goals and messages over those with religious goals and messages in the political process, and by favoring institutions of higher learning over primary and secondary educational institutions in the political process. 
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  52.       Paragraphs 1 through 34 are incorporated by reference as if set forth fully herein. 

  53.       The Anti-Aid Amendment and the Anti-Petition Amendment, by their terms and as applied by Defendants, violate the Establishment Clause of the United States Constitution. 
 

   Wherefore, plaintiffs respectfully request that this Court grant the following relief: 
 
            (a) A declaratory judgment that the Anti-Aid Amendment and the Anti- Initiative Amendment are invalid under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and are invalid under the Free Speech, Free Exercise of Religion, and Petition Clauses of the First Amendment of the United States Constitution as applied to the states by the Fourteenth Amendment of the United States Constitution; 
 
            (b) A permanent injunction preventing the Defendants from further deprivation of the constitutional rights of the Plaintiffs; 
 
             (c) An award to Plaintiffs of full costs and attorney's fees arising out of this litigation; and; 
 
             (d) Such other and further relief that this Court may deem just and appropriate. 

     THE PLAINTIFFS,