Massachusetts law makes a guarantee to students with special needs: No matter who you are, or where you go to school, you are entitled to special education and related services. It is part of the Commonwealth’s efforts to ensure students with special needs get the services they require.
Parents Ariella and David Hellman, and Josh Harrison and Miriam Segura-Harrison, are precisely the type of people whose children are the intended beneficiaries of the Massachusetts law. Their children require services like academic support and occupational therapy so they can perform at the same level as their peers. And by law, Massachusetts guarantees that these children should receive special education services.
But unfortunately for these children, these guarantees have turned out to be empty promises, which is why they are teaming up with the Institute for Justice (“IJ”) and the Pioneer Public Interest Law Center (“PPILC”) and launching a federal lawsuit against the Massachusetts Board of Elementary and Secondary Education (“Board”) and the Department of Elementary and Secondary Education (“DESE”), to ensure their children, and all children in the Commonwealth, are given the resources they legally deserve.
Massachusetts regulators have imposed an irrational—and unconstitutional—restriction on special need students enrolled in private school. The restriction? These students can’t receive services at private schools they attend.
This regulation effectively renders the guarantee useless. Since many services are required at the point of learning, they are effectively useless if the student is required to travel off-site to access them. The regulation is also inconsistent with the plain text of Massachusetts law, which requires services to be provisioned in the “least restrictive environment.” 1 For most children, the “least restrictive environment” is the school that they attend—not some designated “neutral” site across town.
The application of the law is also inconsistent. Under certain circumstances, a school district will enroll a child with special needs at a private school. That child, because they were put there by the government, can then receive services at that school. But a classmate who is enrolled in that very same private school by their parents isn’t allowed that option.
This restriction is not just wrong; it’s unconstitutional. That’s why IJ and PPILC are representing the Hellman and Harrison families and challenging this harmful regulation in the hopes of giving every student in Massachusetts the resources they need.
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The Law
Massachusetts guarantees students with special needs that no matter where they attend school, their local school committee will provide them with special education services.[1] In fulfilling this guarantee, Massachusetts requires that students with disabilities be educated in the “least restrictive environment.”[2] This means that “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled.”[3] It is “only when the nature or severity of the disability of a child is such that education in regular classes . . . cannot be achieved satisfactorily” that the child can be removed “from the regular educational environment,” attend “special classes,” or receive “separate schooling.”[4]
Regulators in Massachusetts have undermined this guarantee. The Board has promulgated a regulation—enforced by DESE—that requires that, in the case of parentally placed private school students, “school districts shall ensure that special education services funded with state or local funds are provided in a public school facility or other public or neutral site.”[5] By contrast, “[w]hen services are provided using only federal funds, services may be provided on private school grounds.”[6]
But for this regulation, children whose parents enrolled them in private schools would be able to access their services in the “least restrictive environment,” which means, “to the maximum extent appropriate,” without “special classes, separate schooling or other removal . . . from the regular educational environment.”[7] For these children, the “regular educational environment[s]” are the schools that they attend.
The Plaintiffs
For parents Ariella and David Hellman, and Josh Harrison and Miriam Segura-Harrison, nothing is more important than their children. So, when they observed that their children’s behavior seemed a bit different from their peers, they took them to get tested by specialists. In each case, the specialists determined the children needed special services—for things like academic support and occupational therapy—so that they could thrive alongside their peers.
In Massachusetts, obtaining these services shouldn’t be a problem. State law guarantees these services for students, regardless of whether they attend a public or private school. In practice, however, things are another matter.
That’s because these parents have decided to enroll their children in private schools. The parents respect other families who choose public education. But they wanted to provide their children with a Jewish education that reflected their personal values. However, because their children are enrolled in private schools, they are effectively unable to get services for their children, because state regulations bar children from receiving state and locally paid services at their own schools.
Ariella and David Hellman
Ariella and David Hellman have chosen to send their son to a private Jewish school in Massachusetts. Like many kids, their son is eligible under state law for special education and related services. Unfortunately, a Massachusetts regulation makes it impossible for their son to obtain the services at the school he attends. For parents like the Hellmans, this is an absurd situation. Massachusetts law penalizes them by requiring them to choose between the school they know is best for their son and the special education services to which their son is legally entitled.
Like many families, the Hellmans have been on both sides of the penalty. For a time, their son attended a public school just so services would be provided. But after determining the public school wasn’t a good fit, they decided to send him to a private school that better suits his educational and social goals. However, because of Massachusetts’ regulation, their son cannot receive the services to which he is entitled at that school. For their son to access services, he would have to leave his private school to access them, which would not only defeat the purpose of provisioning the services in the first place, but it would detract from the education that the Hellmans have chosen to provide their son. Time spent traveling rather than learning and interacting with classmates would interfere with their son’s educational tasks and diminish the education that was the Hellmans’ right to provide their son. Further, because their son is unable to receive these services at school, the Hellmans would have to incur significant out-of-pocket expenses to provide services at school (or to transport him to a location where the services are provisioned).
The Hellmans simply want to provide the best education for their child. But because of the regulation, they must choose between their child receiving the best possible education or accessing special education services to which he is entitled. No parent should be put to that choice.
Josh Harrison and Miriam Segura-Harrison
Josh Harrison and Miriam Segura-Harrison have chosen to send their son to a private Jewish school in Massachusetts. When their son was younger, he went to a specialist to determine whether special education services were warranted. This led to a determination by their school committee that their son was entitled, by law, to things like reading services. Unfortunately, their child is largely unable to access these services because Massachusetts regulators have prohibited their provision at the child’s private school. What’s more, Josh and Miriam are unable to leave work multiple times per week to transport him to and from a state-deemed “neutral” location just so their child can receive services that are guaranteed by law and should be provided on-site at school. In short, they have been penalized because they have chosen to educate their child outside of the public school system. When they, as parents, decide how to educate their child, they must make a choice: Do we send our child to a public school, where all the services are available but the best environment for our child is not, or do we provide our child with the best environment but forgo required services? That’s not just wrong; it’s unconstitutional.
The Legal Claims
Like thirty-seven other states, Massachusetts has what is known as a Blaine Amendment. These constitutional provisions, named after former Senator James Blaine, generally restrict public monies from going to the “aid” of religious schools. The Massachusetts Blaine Amendment, however, is far more expansive. While it originally barred aid to religious schools, the language was modified in the early twentieth century to bar any public funds from going to any school “not publicly owned and under the exclusive control” of the government.
Since then, Massachusetts regulators have interpreted their Blaine Amendment in a broad—and irrational—manner. Massachusetts law requires school districts to offer special education and related services to all eligible students who reside in the district, including students whose parents have enrolled them in private school. But the Commonwealth has promulgated a regulation that prohibits such students from receiving services at their private schools if they were paid for with state or local monies.
The practical effect of this regulation is to penalize parents like the Hellmans and Harrisons. When they choose to exercise their fundamental right to direct the upbringing of their children, they are penalized by the regulation. They must choose between providing what they believe is the best education for their children or obtaining a public benefit. When the government conditions a benefit on a person’s exercise of a right in this way, the government acts unconstitutionally.
In this case, Massachusetts is violating three provisions of the Fourteenth Amendment to the U.S. Constitution.
First, the Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” As the Supreme Court put it in Washington v. Glucksberg, parents have a “fundamental” right to “direct the education and upbringing of one’s children,” including by sending one’s children to private school.[8] Since this regulation effectively bars a student from obtaining a benefit solely because their parent enrolled them in a private school, it unlawfully burdens that parental right.
Second, the Equal Protection Clause prohibits a state from “declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government.” Making it more difficult for this group of citizens—a group defined by their exercise of a fundamental constitutional right, no less—to obtain a benefit is “a denial of equal protection of the laws in the most literal sense.”[9]
Third, some on the Supreme Court have suggested that the right to direct the education of one’s children enjoys substantive protection in the Privileges or Immunities Clause, rather than (or in addition to) the Due Process Clause. Regardless of which clause is the appropriate source of protection, Massachusetts’ regulation violates the right.
Case Team
The Hellmans and the Harrisons are represented by Educational Choice Attorney David Hodges and Senior Attorney Renée Flaherty. PPILC also serves as consulting counsel.
About IJ
IJ is the nation’s leading law firm defending educational choice programs and expanding educational access and opportunity. Since its founding in 1991, IJ has successfully represented parents in educational choice lawsuits in numerous state supreme courts, intermediate courts of appeal, and trial courts, as well as four times at the U.S. Supreme Court (Zelman v. Simmons-Harris, Arizona Christian School Tuition Organization v. Winn, Espinoza v. Montana Department of Revenue, Carson v. Makin). IJ is currently defending choice programs in Alaska, Ohio, and Tennessee alongside EdChoice Legal Advocates as part of the Partnership for Educational Choice.
[1] Mass. Gen. Laws ch. 71B, § 3, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter71B/Section3.
[2] Mass. Gen. Laws ch. 71B, § 1, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter71B/Section1.
[3] Id.
[4] Id.
[5] 603 Mass. Code Regs. 28.03(1)(e)(3), https://www.doe.mass.edu/lawsregs/603cmr28.html?section=all.
[6] Id.
[7] Mass. Gen. Laws ch. 71B, § 1, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter71B/Section1.
[8] Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citing Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)).
[9] Romer v. Evans, 517 U.S. 620, 633 (1996).
