PRESS RELEASE: DFI Urges First Circuit to Strike Down Massachusetts’ Unconstitutional Regulation Discriminating Against Children with Special Needs

WASHINGTON—The Defense of Freedom Institute for Policy Studies (DFI) filed an amicus brief in Hellman v. Massachusetts Department of Elementary and Secondary Education this week, urging the U.S. Court of Appeals for the First Circuit to reverse a lower court decision rejecting a challenge to a state regulation denying onsite special education services to children whose parents placed them in private schools.

The brief draws on the original meaning of the Fourteenth Amendment’s Equal Protection Clause, arguing that Massachusetts is unconstitutionally penalizing parents for exercising their fundamental right to direct the education of their children.

Under current Massachusetts law, students with disabilities who are placed in private school by a public school district may receive special education services onsite. But children placed in the same school by their parents, rather than the government, must leave school grounds to access those services, often multiple times per week. The state treats these students unequally solely based on who made the decision to enroll them in private school.

The plaintiffs in this case are families with children who have special needs and attend private schools chosen independently by their parents.

The brief states, “What Massachusetts gives all children in the state with one hand (free onsite special education under MASS. GEN. LAWS ANN. ch. 71B, § 3), its other hand takes away from [plaintiffs’] children, see 603 MASS. CODE REGS 28.03(1)(e)(3). This denies [plaintiffs’] children the same protection of Massachusetts law that the state affords all other children whose parents do not exercise their constitutional right.”

During Reconstruction, Congress enacted the Fourteenth Amendment to eliminate barriers that state governments erected to block marginalized communities from accessing education—often by supporting private education with public funds. Drawing on this history, DFI argues that Massachusetts’ regulation violates the very principles the Equal Protection Clause was designed to safeguard.

“Massachusetts has created a two-tiered system where the state honors a child’s statutory educational rights only if the parents agree to waive their constitutional right to send their child to a private school,” said Don Daugherty, Senior Litigation Counsel at DFI. “That kind of unequal protection under state law is precisely what the Fourteenth Amendment forbids. Families should not be punished for exercising their Constitutional right to choose the school they believe is best for their child.”

The brief highlights that this unequal treatment imposes real burdens, not just legal ones, on families. Forcing parents to pull their children out of class for special education services disrupts learning, stigmatizes students, and creates unnecessary logistical hardship.

To read the full brief, click here.