Where children with disabilities are being hurt by a regulation rooted in bigotry

Bigotry against Catholics in Massachusetts is not nearly as virulent as it was in 1834, when a Protestant mob, whipped into a frenzy by rumors of depraved nuns committing secret atrocities, ransacked an Ursuline convent in Charlestown and burned it to the ground. Nor is such bigotry as pervasive as it was in 1854, when the Know-Nothing Party — fiercely anti-Irish and anti-Catholic — became the most powerful political force in the state, winning control of the governorship and every other statewide office, plus 99 percent of the Legislature.

Yet the effects of the anti-Catholic poison that once dominated Bay State politics linger even now. Consider Article 18 of the Massachusetts Constitution, which bans any use of public funds to aid private schools. That provision, known as the "anti-aid amendment," was inserted during the Know-Nothing ascendancy, when it was widely believed, as the Supreme Judicial Court recounted in a recent opinion, that there was "a 'papal plot' to spread Catholic influence throughout the government and in particular the public school system."

Fortunately, such hysterical hostility to Catholics is no longer a potent influence in Massachusetts. But Article 18 is still the law of the Commonwealth and is invoked to this day in ways that restrict basic rights to which Catholics and other religious believers are entitled.

That is the background to a lawsuit to be filed Monday at the US District Court in Boston by the Institute for Justice, a nonprofit public-interest law firm that defends individual liberties threatened by government overreach. The lawsuit takes aim at a regulation that — because of Article 18 — imposes a pitiless burden on thousands of Massachusetts families and in the process undermines one of the jewels in the crown of Bay State education.

Massachusetts today has some of the most enlightened education policies in America. Among them is the landmark statute known as Chapter 71B, which requires that all schoolchildren diagnosed with learning disabilities be provided with appropriate special education services financed with state or local funds. The statute expressly extends that entitlement to every student with a disability, whether "in a public or non-public school setting."

The same law also specifies that children with special needs are to receive those services "in the least restrictive environment." That means that whenever possible, children who need special support should get it in their regular educational setting. Chapter 71B is emphatic about that: "Only when the nature or severity of the disability of a child is such that education in regular classes . . . cannot be achieved satisfactorily," it says, should a child be removed from the school he or she is used to.

More than 177,000 of today's Massachusetts schoolchildren have been diagnosed with a physical, emotional, or intellectual disability. Most receive the services they require (which can be anything from speech therapy to anxiety counseling to a one-to-one instructional aide) in their own school, as the law directs. But for some special-needs students — those whose parents have enrolled them in a private school — Massachusetts regulators have fashioned a cruel trap: The students can get the government-funded academic support they are entitled to so long as they don't get it at the school they attend.

Under a regulation enforced by the Massachusetts Division of Elementary and Secondary Education, or DESE, kids with disabilities whose parents pay to send them to a private school may receive the publicly funded services that Chapter 71B guarantees only in "a public school facility or other public or neutral site." Why? Because of Article 18. As DESE's regulators interpret that "anti-aid amendment," children in, say, a Catholic parochial school or a Jewish day school must be physically brought to a public school in the district where they live before they can receive state- or locally funded educational support. The regulation thus subverts the very statute it is supposed to implement.

The Institute for Justice maintains that is not only irrational but unconstitutional. It violates the right of parents under the 14th Amendment to direct the upbringing and education of their children — a core right that the Supreme Court has reaffirmed time and again over the past 100 years. And it discriminates against special-needs kids whose parents believe a public-school education is not in their child's best interest, even though the law explicitly covers students "in a public or non-public school setting."

Among the plaintiffs the Institute for Justice is representing pro bono in this litigation are Josh Harrison and Miriam Segura-Harrison, the parents of a 6-year-old boy with multiple learning disabilities, including attention deficit hyperactivity disorder (ADHD), developmental coordination disorder, dyslexia, and anxiety.

The child, identified as H.H., requires numerous weekly sessions of special instruction, occupational therapy, and psychological counseling. H.H.'s family is Jewish, and his parents have enrolled him in Shaloh House, an Orthodox Jewish day school in Brighton. But because DESE will not permit H.H. to receive the special-ed services he needs at his own school, the Harrisons are put in an impossible position. They must either go to Shaloh House multiple times each week to pick up H.H. and drive him to a public school — or forfeit the educational support their child needs.

As the plaintiffs' lawsuit notes, repeatedly taking H.H. away from his school and his classmates would be "stigmatizing and stressful" for him. It would intensify the educational struggles of a child whose academic evaluation underscores his need for "constant redirection at school" in order to focus on basic tasks. In any case, H.H.'s parents have full-time jobs and leaving work multiple times each week isn't a realistic option.

Were the Harrisons to pull their son out of Shaloh House and transfer him to a public school, there would be no impediment to getting special services. But Miriam, a primary care physician, said in an interview that her child loves the Jewish milieu of his school. She and her husband are certain that removing H.H. from that environment would only compound his educational and psychological challenges.

H.H. is just one of numerous children in Massachusetts whose access to special-ed services is obstructed because they are enrolled in a private school. It bears repeating that under Chapter 71B the right of children with disabilities to receive those services is an individual entitlement. It does not depend on the type of school a child attends. Nor does it require the state to provide aid to a child's school. The statute is admirable. Not so the regulation promulgated to carry out that statute, which effectively punishes parents for not sending their children to public schools.

According to the state's education bureaucracy, the Massachusetts anti-aid amendment compels that discrimination. According to the Institute for Justice and its clients in this case, the US Constitution forbids it. If they are right, the Know-Nothing shadow that has darkened special education in the Commonwealth may finally be lifted. And the state's laudable commitment to educating students with disabilities will no longer exclude some of those students because of the school their parents chose.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission."