David Hodges is an attorney at the Institute for Justice. Jamie Gass is the education policy director at the Pioneer Institute. Their organizations represent the Hellman family.
Most parents are familiar with the moment when their child asks an unanswerable question. For Ariella Hellman, it came when her 4-year-old son asked why he had to leave the school he loved.
The truth was difficult to explain. He had done nothing wrong. Nor had his parents. When they chose what they believed was the best school for him — a Jewish day school — they were simply exercising a right the U.S. Supreme Court recognized a century ago in Pierce v. Society of Sisters. There, the court explained that “the child is not the mere creature of the State,” and held that those who raise him “have the right, coupled with the high duty” to direct his education. The problem was that Massachusetts penalized them for doing so.
Since 1972, Massachusetts has entitled all children with disabilities — including private-school students — to special-education services. But a state regulation turns that lifeline for children into a tool of coercion against parents. The rule states that “nothing” in it restricts parents’ right to send their children to private school — and then subsequently forbids their children from receiving special-education services at school if they make that choice.
The regulation forced the Hellmans, like many parents before them, to choose between two things their child needed.
They could keep him at his school, surrounded by his friends and teachers, but only by repeatedly pulling him out of class and shuttling him to whatever location the state deemed “neutral” for him to receive services. For a child who struggles with concentration, and managing anxiety and frustration, that would be disruptive. It would also defeat the purpose of enrolling him in the school in the first place if he had to miss, for example, math class to address his reading deficiencies.
Or they could send him to a public school and receive state services there, but only by giving up the school the Constitution guarantees them the right to choose.
At first, the Hellmans withdrew their son and enrolled him in public school. He received the services he needed, but he lost his classmates, his teachers and his community. Two years later, his parents brought him back to his old school, but he lost the special-education services to which he was entitled.
Massachusetts is forcing the Hellmans to choose between receiving a benefit and exercising a right.
That is why our organizations are representing the Hellmans, along with another Massachusetts family, in a case pending before the U.S. Supreme Court. Our question to the court: Can a state deny a child a benefit simply because of his parents’ exercise of a constitutional right?
In March, the U.S. Court of Appeals for the 1st Circuit held that it could. The court reasoned that Massachusetts may impose this kind of pressure on rights not protected by the First Amendment. It also held that the regulation was necessary to comply with Massachusetts’s “anti-aid” amendment, which bars public money from “aiding” private schools.
Neither explanation holds water. First, the Supreme Court has never drawn a line between rights it protects from this type of coercion and rights it doesn’t. Second, Massachusetts’s actions undercut its supposed obligation: When a public school cannot provide appropriate services to children with special needs — a routine occurrence — the government often places them in private schools that can. In other words, Massachusetts allows a child to receive services at a private school when the government determines a child should be educated there, but not when the child’s parents do so.
That matters because of the U.S. Supreme Court’s decision in Pierce. In the ruling, a unanimous court invalidated an Oregon law designed to force children into public schools by outlawing private ones. The court rejected the state’s attempt to “standardize its children” and recognized the right of parents to direct their children’s education.
Pierce protects not only a parent’s right to enroll a child in private school but also their right to make that choice without being punished for it. Yet penalizing is exactly what the regulation does. It cannot prevent the Hellmans from sending their son to the school of their choice, so it tells them that if they do, he will lose the services to which he is otherwise entitled. Massachusetts is pressuring them into not exercising a right.
Some parents respond to that pressure by keeping their children in private schools and forgoing the services they need. Others give up the school they believe is best for their children and enroll them in public school. The Hellmans still don’t have a good answer for their son, but they hope that the court will provide one.
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