Expanding Options For Special Needs Students

Massachusetts law makes this guarantee to students with special needs: No matter who you are, or where you go to school, you should receive special education and related services. It is part of the commonwealth’s efforts to ensure that students with special needs get the services they require.

Two IJ client families—Ariella and David Hellman and Josh Harrison and Miriam Segura-Harrison—are exactly the type of people the law was meant to benefit. Their children require services like academic support and occupational therapy so they can reach their full potential. But for them, Massachusetts’ guarantee is an empty promise. 

Because the Hellmans and the Harrisons chose to enroll their children in private schools, the kids can’t receive services funded with state and local revenues at their own schools. Instead, they must travel off site to a public or other “neutral” location. Massachusetts regulators imposed this restriction on special needs students even though most private schools are fully capable of hosting the services—and even though the government is exempted from this requirement when it enrolls students in private schools. It is onlywhen parents enroll their children in private schools that students face this restriction.

As readers may have surmised, this regulation is not only irrational—it is unconstitutional. Parents like the Hellmans and the Harrisons have a fundamental constitutional right to direct the upbringing of their children, including by sending them to private school. But when Massachusetts effectively bars children from getting needed services simply because their parents enrolled them in private schools, Massachusetts infringes upon that right.

Although this is a new challenge for IJ, it is based on the same principles underlying our previous U.S. Supreme Court victories in Espinoza v. Montana Department of Revenue and Carson v. Makin. For example, IJ argued in Espinoza that it was unconstitutional for Montana’s Blaine Amendment to bar public funds from going to students just because they attended religious private schools. And the high court agreed: When the Montana Supreme Court was asked to apply its Blaine Amendment to discriminate based on religious exercise, “it was obligated by the Federal Constitution to reject the invitation.”

The same logic applies here. Although Massachusetts’ Blaine Amendment prohibits public monies from going to all private schools, not just religious ones, this regulation is discrimination based on a constitutional right all the same. And just as the government may not discriminate simply because a person exercises her religion, it may not discriminate because a person enrolls her child in a private school. 

That’s why the Hellmans and the Harrisons have teamed up with IJ (and the Pioneer Public Interest Law Center) to challenge this regulation. If we prevail, it will mean one of the few Blaine Amendments not affected by Espinoza or Carson will no longer have legal force. And that’s a victory for everyone. When the government denies a child a benefit because her parent exercised a constitutional right, that’s not just cruel and irrational—it’s unconstitutional, too.

David Hodges is an IJ educational choice attorney.