Massachusetts Families Urges Court to Reverse Ruling Over Unconstitutional Conditions for Special Education Services
FOR IMMEDIATE RELEASE: 7/8/2025
BOSTON—Today, the Institute for Justice (IJ) and the Pioneer New England Legal Foundation (PNELF) urged the U.S. Court of Appeals for the First Circuit to reverse a lower court ruling on behalf of clients Ariella and David Hellman and Josh Harrison and Miriam Segura-Harrison, two sets of parents with children who have special needs. The appeal seeks to reverse a dismissal of their lawsuit challenging a Massachusetts regulation that effectively bars children from receiving special education services to which they are statutorily entitled solely because those children attend private schools.
“Massachusetts guarantees all children with special needs that they can receive special education services,” said IJ Educational Choice Attorney David Hodges. “But Massachusetts regulators have made it almost impossible for a child whose parents enrolled her in private school to get the services the state says she needs. This regulation is an unconstitutional condition on parents who deign to exercise their century-old right to direct the education of their children.”
Massachusetts guarantees all students with special needs a statutory entitlement to special education services, no matter which schools they attend. These services can be as simple as classroom supplements and aids or involve intensive sessions with highly specialized behavioral therapists. The services are vital for children with special needs to help them overcome various learning challenges and properly educate them. Yet even though Massachusetts law entitles all children to the services, a Massachusetts regulation makes access to services practically unobtainable for children whose parents exercise their fundamental, constitutional right to enroll them in private schools.
The regulation does this by barring these children—and only these children—from receiving services in their schools. Unlike many other children with special needs, these children are required as a rule to leave their schools to get services, which effectively makes the services impossible to access. Massachusetts justifies this regulation with an interpretation of a state constitutional amendment that bars “aid” to private schools. This interpretation is erroneous, as special education services for disabled students are aid to children, not schools.
Moreover, the restriction makes many special education services impractical at best, or useless at worst. For many students, services are needed at the point of classroom learning and removing them from the classroom to access such services fails to help the children. Further, the restriction contravenes the Massachusetts special education statute, which says that the default for children is to receive services in their regular educational environment. Also, being removed from their school to access services is stigmatizing for these children and burdensome on working parents, who cannot spend time during the workday shuttling their children from location to location.
The restriction falls solely on parents who exercise their constitutional right to enroll their child in private school. If a child attends public school, she can receive services at the school. If the government enrolls a child in private school, which it often does with special needs children, the child can receive services in the private school. But a classmate who is enrolled in that very same private school by their parents isn’t allowed that option, even if the services they need are identical. In short, it is only parents who exercise their fundamental, federal constitutional right to send their children to a private school whose children are penalized by the Massachusetts regulation.
“Children with special needs are already among the most vulnerable people in society,” said Senior Attorney Renée Flaherty. “The last thing they need is for Massachusetts to discriminate against them because of how their parents exercised a constitutional right.”
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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, Tennessee, Utah and Wyoming alongside EdChoice Legal Advocates as part of the Partnership for Educational Choice.
PNELF, which serves as consulting counsel in this case, is a nonpartisan, public interest law firm that defends and promotes educational options, accountable government and economic opportunity across the Northeast. PNELF achieves its mission through legal research, amicus briefs, and litigation.
Since retiring in 2019 after 37 years of government service in Massachusetts, Kurt Schwartz has consulted with government agencies, corporations, and non-profits in the areas of emergency management, homeland security, crisis leadership, and COVID-19 preparedness and operations. He also serves on the National Boards of American Friends of Magen David Adom, IsraAID-US, American Friends of Herut, and is a Director of Charm Sciences, Inc. 
Joel Carpenter is a partner at Sullivan & Worcester, where he served as co-managing partner for many years. Joel is particularly experienced in the tax structuring of complex business and investment arrangements using partnerships, limited liability companies, and Subchapter S corporations. He advises a broad range of private and institutional investors, including real estate investment firms, on a wide variety of U.S. federal income tax matters. This includes fund formation matters, the acquisition and disposition of property, structuring debt and equity investments, equity compensation plans, and tax planning for investors.
Andrew Lelling is a former United States Attorney and senior Department of Justice (DOJ) official with deep experience in white collar, securities, and international enforcement matters. He defends companies and individuals in complex civil litigation and government investigations. He also leads internal investigations and advises on compliance with federal, state, and international laws. He has successfully tried dozens of cases in federal and state courts.
Jonathan Albano, a partner with Morgan Lewis and a member of the board for Pioneer Public Interest Law Center, has been honored with a Lifetime Achievement award as part of law.com’s 
