Supreme Court asked to review special ed

Two Massachusetts families petitioned the U.S. Supreme Court on July 20 to review a state regulation on special education access. They argue the rule penalizes private school students by forcing them to travel for services.

The families, whose children with disabilities attend Jewish day schools, are challenging a Massachusetts policy. This policy grants parentally placed private school students an individual right to special education services. However, a state regulation bars those services from being delivered at the private school campus. Instead, students must go to a public school or a 'neutral' location. The petition states this causes 'great time, disruption, and personal expense.'

Katherine Craven, chair of the Massachusetts Board of Elementary and Secondary Education, is the respondent. The state is represented by the Massachusetts Attorney General's Office.

The Constitutional Question

The petition asks the Supreme Court to apply the 'unconstitutional conditions doctrine.' This doctrine forbids a government from conditioning an available benefit on the surrender of a constitutional right. Here, the benefit is special education services. The constitutional right is to attend a private school.

The petitioners claim the state's policy indirectly discourages private school choice. They say it weaponsizes the state's no-aid provision. A no-aid provision generally prohibits using public funds for private or religious education. The petition argues lower courts are 'sharply divided' on whether states may do indirectly what they cannot do directly.

Federal and State Law Context

Under the federal Individuals with Disabilities Education Act (IDEA), parents who voluntarily enroll a child with disabilities in private school forgo certain rights. Public schools must provide a 'proportionate share' of federal IDEA funds for private school students. This share is typically small and used for child find, training, or direct services.

Massachusetts law goes further, granting an individual right to services. Yet the location restriction is based on the state's no-aid provision. In a motion to dismiss, the state argued there is no constitutional requirement to give private school students the same treatment as public school students. It also stated plaintiffs have 'no federal constitutional right to state-funded special-educational benefits, much less to receive such benefits on-site.'

Earlier this year, the U.S. Court of Appeals for the First Circuit affirmed a lower court's dismissal. Judge Gustavo Gelpí wrote the complaint alleged, 'at most, an increased logistical burden.' He called this a consequence of how the state delivers benefits, not a meaningful intrusion on parental rights.

Broader Implications for School Choice

The case has drawn attention from private school choice supporters. A coalition of 14 states, led by West Virginia and South Carolina, filed an amicus brief urging the Supreme Court to hear it. The brief argues states may not make an educational benefit conditional on surrendering the right to private education.

'For opponents of school choice, that is the point - to leverage taxpayer dollars to coerce families into public schools,' the states' brief said. The Council for American Private Education also filed a brief. It said the case addresses conflicts between state anti-aid rules and modern school-choice programs like scholarships.

The Supreme Court will decide whether to hear oral arguments for its October 2026 term. The court has asked Massachusetts to respond to the petition by Sept. 21. A ruling in the families' favor would not force other states to create similar special education programs. However, it could prevent the use of no-aid provisions to deprive opportunities that state legislatures choose to provide.