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08/24/77 OPINION JUSTICES TO SENATE

August 24, 1977

OPINION OF THE JUSTICES TO THE SENATE


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, Equal protection of laws, Legislation favoring individual, Opinions of the Justices. Lowell.

On the limited facts known to the Justices with respect to a bill pending before the Senate to authorize Lowell High School, a public high school, to restrict participation in an extra curricular activity of the school, the Girl Officers Regiment, to students of the female sex, the bill would, if enacted, violate the declared policy of the Commonwealth, as found in art. 106 of the Amendments to the Massachusetts Constitution, that "quality under the law shall not be denied or abridged because of sex." [886-888]

On August 24, 1977, the Justices submitted the following answer to a question propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this answer to the question set forth in an order adopted by the Senate on June 6, 1977, and submitted to us on June 16, 1977. The order refers to Senate No. 1726 now pending before the Senate and entitled, "An Act authorizing the Lowell High School to offer participation in the Girl Officers Regiment to certain students."

The bill reads, "Notwithstanding the provisions of section five of chapter [seventy-six of the General Laws, as amended by section one of chapter 622 of the acts of 1971], *fn1 or any rule or regulation thereunder, the Lowell High School is hereby authorized to continue to offer to its female students participation in the Girl *fn2 Officers Regiment of said school."

The order states, "Said bill, if enacted into law, would authorize Lowell High School, a public high school, to restrict participation in an extra-curricular activity of said high school, the Girl Officers Regiment, to students of the female sex; and . . . rave doubt exists as to the constitutionality of said bill if enacted into law."

The question is:

"Would the bill (Senate No. 1726), if enacted into law, be in violation of the declared policy of the commonwealth that equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin, as found in Article 106 of the Amendments to the Constitution of the Commonwealth?"

Before proceeding to the question propounded by the Senate, we think it proper to state that the bill may be fatally defective on its face for a different reason from that expressly inquired of. The bill if enacted would suspend the operation of G. L. c. 76, § 5, as amended through St. 1973, c. 925, § 9A, for the particular high school extra-curricular activity named therein. That statute provides in pertinent part: "No person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, religion or national origin." *fn3

Although we need reach no Conclusion on the issue, we observe that the bill arguably may be invalid under art. 10 of the Declaration of Rights of the Massachusetts Constitution, the first sentence of which provides: "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws." Senate No. 1726 suffers from the same constitutional infirmity as would an enactment which "purports to exempt a named individual from the obligations of a general law while allowing the general law to remain in full force and effect as to all other persons," and appears to fall squarely within the principle we have previously expressed that the Legislature has no power to suspend the operation of a general law in favor of an individual. Paddock v. Brookline, 347 Mass. 230, 236-237 (1964). Dickinson v. New England Power Co., 257 Mass. 108, 112 (1926). Holden v. James, 11 Mass. 396, 403-405 (1815). A comprehensive statement of the principles underlying art. 10 may be found in the recent case of Commissioner of Pub. Health v. Bessie M. Burke Memorial Hosp., 366 Mass. 734 (1975). In that case, we concluded that the limitation on legislative power contained in art. 10 prohibits special legislation which in exempting a named individual from the operation of the general laws diminishes or defeats existing rights of other persons. Id. at 742-743, and cases cited therein. Senate No. 1726 on its face singles out the young men of Lowell High School and diminishes their rights under G. L. c. 76, § 5, while leaving the statute in full force and effect for all other public school students of the Commonwealth. Indeed, the legislation apparently was designed with that very result in mind. Although we noted in Commissioner of Pub. Health v. Bessie M. Burke Memorial Hosp., supra at 743-744, the similarity in latitude allowed to the Legislature under art. 10 and the Fourteenth Amendment to the Constitution of the United States, on the limited facts known to us we can discern no promotion of a public purpose which would bring this case into the limited exceptions to the general principle. See, e.g., Sullivan v. Commonwealth, 365 Mass. 316, 319 (1974); Opinion of the Justices, 354 Mass. 799, 801-802 (1968).

We observe also that the bill may be defective, and may present no "solemn occasion" to this court, if not enacted in accordance with art. 89 of the Amendments to the Constitution of the Commonwealth (the Home Rule Amendment), particularly § 8 of that Amendment. Cf. Answer of the Justices, 356 Mass. 769, 771-772 (1969).

Having noted potential defects under art. 10 of the Declaration of Rights and art. 89 of the Amendments, we turn now to the question propounded by the Senate concerning the validity of the bill under art. 106 of the Amendments to our Constitution. That article amended art. 1 of the Declaration of Rights. The relevant portion of the Amendment reads: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." With the exception of sex, these classifications have long been afforded extensive protection under the Fourteenth Amendment to the Constitution of the United States. Race, color, and national origin have been designated suspect classifications and as such have been subject to the strictest judicial scrutiny. Governmental action which apportions benefits or burdens according to such suspect categorizations is constitutionally permissible only if it furthers a demonstrably compelling interest and limits its impact ...


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