Pierce Parental-Choice Rights Do Not Guarantee On-Site, State-Funded Special Education at Private Schools

Case: Hellman v. Mass Dep't of Elementary and Secondary Education (1st Cir. Mar. 20, 2026)
Court: United States Court of Appeals for the First Circuit
Core holding (new articulation): A state does not “restrict” the Pierce right to choose private schooling—under substantive due process or equal protection—merely by providing publicly funded special-education services to privately enrolled students only at public/neutral sites rather than on the private-school campus; that delivery choice is evaluated under rational basis review and is justified by the state’s interest in administering benefits while complying with a state “Anti-Aid” constitutional constraint.

1. Introduction

Massachusetts law provides an individually enforceable entitlement to publicly funded special education services for children with disabilities, including those enrolled in private schools at private expense. But Massachusetts regulations draw a location-based distinction: public-school students generally receive services at their school of enrollment, while private-school students may receive state- or locally-funded services only “in a public school facility or other public or neutral site” (the “Place Regulation,” 603 Mass. Code Regs. § 28.03(1)(e)(3)). The regulation is tied to the Massachusetts Constitution’s Anti-Aid Amendment (Mass. Const. amend. art. XVIII, § 2), which prohibits public money from being used to “aid” non-public primary or secondary schools.

Two sets of parents—Ariella and David Hellman (for E.H.) and Josh Harrison and Miriam Segura-Harrison (for H.H.)—challenged the Place Regulation under 42 U.S.C. § 1983, asserting violations of the Fourteenth Amendment’s Due Process, Equal Protection, and Privileges or Immunities Clauses. They alleged that requiring off-site services effectively burdened (and practically deterred) their constitutionally protected choice to enroll their children in private (here, Jewish) schools. The district court dismissed under Rule 12(b)(6), and the First Circuit affirmed.

2. Summary of the Opinion

  • Substantive due process: The court accepted that the asserted liberty interest fits within the “Meyer/Pierce right” (the parental right to direct a child’s upbringing and education, including choosing private school), but held the Place Regulation does not restrict that right. It is a permissible condition on how the state administers a benefit, not a barrier to choosing private education. Therefore, the regulation is reviewed under rational basis and upheld.
  • Equal protection: Because the regulation does not burden a fundamental right (as framed by the court) and does not involve a suspect classification, rational basis applies. The regulation survives: Massachusetts has legitimate interests in extending services while complying with the Anti-Aid Amendment.
  • Privileges or immunities: The claim fails under the narrow modern scope of the Fourteenth Amendment’s Privileges or Immunities Clause (limited to rights of national citizenship). The court follows controlling precedent and declines to re-route substantive rights through that clause.

3. Analysis

3.1 Precedents Cited (and Their Role)

A. IDEA/FAPE doctrinal backdrop

  • Johnson v. Bos. Pub. Schs. and Sebastian M. v. King Philip Reg'l Sch. Dist. were used to summarize IDEA’s FAPE obligation and to situate Massachusetts’s scheme within the broader special-education framework.
  • Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 supplied the modern standard for an IEP’s adequacy (“reasonably calculated” to permit appropriate progress), illustrating what the parents were seeking to access.
  • Gary S. v. Manchester Sch. Dist. (and the district court decision it affirmed) provided the closest circuit analogue: the First Circuit had previously rejected due process and equal protection challenges to differential special-education treatment of private-school students, emphasizing that non-subsidy of a private-school option does not significantly interfere with parental choice.

B. Defining the parental right (and avoiding “microscopic granularity”)

  • Washington v. Glucksberg supplied the “deeply rooted” test and the admonition to define asserted fundamental rights with care.
  • Meyer v. Nebraska, Pierce v. Soc'y of Sisters, and Troxel v. Granville were used to confirm the established breadth of parental autonomy and the court’s method: the right is not defined at the level of the particular burden (e.g., not “the right to on-site services”), but as the broader right to direct upbringing and education.
  • Foote v. Ludlow Sch. Comm. was used for the First Circuit’s contemporary three-step substantive due process framework (fundamental right → restriction → scrutiny), and for the idea that a cognizable parental-rights claim typically involves “restraining conduct” by the state.

C. The non-subsidy principle: “no restriction” where the state simply declines to fund or facilitate the preferred option

  • Maher v. Roe and Harris v. McRae
  • Norwood v. Harrison directly linked that non-subsidy logic to the private-school context, emphasizing Pierce “said nothing” about any right of private schools to share “state largesse.” The court treated Norwood as rejecting the premise that parental choice implies an entitlement to equal public aid.
  • Fields v. Palmdale Sch. Dist. and Anspach v. City of Phila. supported the proposition that the parental right protects against meaningful interference, not against the state’s refusal to structure benefits to maximize private-school convenience.
  • St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist. and Parents for Priv. v. Barr reinforced that statutes may create benefits but do not “augment” the scope of federal fundamental rights; the constitutional question is interference with the right, not the breadth of statutory entitlements.

D. Rejecting a Free Exercise “equal benefits” analogy

  • Carson v. Makin, Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Mont. Dep't of Revenue, and Lyng v. Nw. Indian Cemetery Protective Ass'n were discussed as Free Exercise cases barring indirect penalties on religious exercise, but the court held that logic does not translate to a pure Pierce parental-rights claim—especially where the regulation is religion-neutral and no Free Exercise claim was pled.
  • Loffman v. Cal. Dep't of Educ. was cited by the parents but dismissed as inapposite because it could not overcome the non-subsidy structure applicable to the parental-right claim as framed.

E. Rational basis and “conceivable bases”

  • Heller v. Doe supplied the high deference standard: challengers must negate “every conceivable basis.”
  • Cook v. Gates, D'Angelo v. N.H. Sup. Ct., and LCM Enters., Inc. v. Town of Dartmouth supplied the governing rational-basis formulation in the circuit.
  • Hope v. Comm'r of Ind. Dep't of Corr. (and the court’s citation back to St. Joan Antida High Sch. Inc.) supported toleration of over- or under-inclusiveness under rational basis.
  • Zobrest v. Catalina Foothills School District was invoked by the parents to argue services “aid students, not schools,” but the court treated it as Establishment-Clause-specific and contrasted it with Norwood v. Harrison’s recognition that similar support can inure to the benefit of private schools.
  • Doucette v. Georgetown Pub. Schs. and Commonwealth v. Sch. Comm. of Springfield were used to justify differential treatment of government-placed private-school students (whose placement is part of the state’s FAPE obligation) and to show Massachusetts law has upheld that funding against Anti-Aid concerns.

F. Equal protection—no heightened scrutiny; Romer distinguished

  • Zablocki v. Redhail was cited for heightened scrutiny where a law discriminates as to exercise of a fundamental right, but the court held the Place Regulation does not burden the Pierce right in the relevant sense.
  • A.C. v. McKee and D'Angelo v. N.H. Sup. Ct. supported applying rational basis absent a suspect class or a burden on a fundamental right.
  • Romer v. Evans was invoked by the parents, but the court distinguished it as involving an “unprecedented” breadth and apparent animus; here, Massachusetts expanded (not withdrew) services and acted for administrability and constitutional compliance rather than hostility.

G. Privileges or Immunities—modern narrowness reaffirmed

  • McDonald v. City of Chi., Gattineri v. Town of Lynnfield, Saenz v. Roe, and Slaughter-House Cases supplied controlling doctrine: the Privileges or Immunities Clause protects rights of national citizenship, not a general catalogue of unenumerated rights; the court declined to disturb this framework despite the parents’ reliance on Justice Thomas’s concurrence in McDonald.

3.2 Legal Reasoning

A. Substantive due process: recognizing the parental right but finding no “restriction”

The court’s due-process analysis is best understood as a separation between (i) the constitutional protection of choice (public vs. private schooling) and (ii) the state’s discretion in administering public benefits that might make one choice more convenient.

  • Step 1 (fundamental right): The court accepted the claim fits within the broad Meyer/Pierce parental right, avoiding overly granular reframing as a “right to on-site services.”
  • Step 2 (restriction): The decisive holding: the Place Regulation does not bar private schooling, compel public schooling, or deprive meaningful access to private schooling. It sets the terms and location for delivery of a benefit. That is a “non-subsidy/administration” decision, not an interference with the right itself.
  • Step 3 (scrutiny): Because no restriction of a fundamental right was plausibly alleged, rational basis applies—and the regulation survives given Massachusetts’s legitimate interest in extending services while complying with its Anti-Aid Amendment.

B. State statutory entitlement does not expand the federal constitutional right

A key doctrinal point is the court’s refusal to “constitutionalize” Massachusetts’s policy choice to extend IDEA-like entitlements beyond federal requirements. The court treated Chapter 71B as creating enforceable statutory rights while keeping the federal due-process inquiry fixed on whether the Place Regulation meaningfully interferes with the parental choice protected by Pierce.

C. “Least restrictive environment” does not, on this record, mean “on-site at the private school”

The parents attempted to turn Massachusetts’s “least restrictive environment” language into a location guarantee. The court rejected that reading, emphasizing the statutory definition’s programmatic focus (a course of education leading to college/technical/career outcomes) rather than a mandate that services occur on the private campus.

D. Equal protection mirrors the due-process conclusion

Once the court decided the Place Regulation does not burden a fundamental right, the equal-protection claim collapses into rational basis review. The court upheld the public/private distinction as a rational means of delivering services through public infrastructure while avoiding prohibited aid to private schools.

E. Privileges or Immunities remains closed to this claim

The court treated the Privileges or Immunities argument as largely preservational: whatever the academic critique of substantive due process, lower courts remain bound by McDonald’s reaffirmation that fundamental rights against state infringement are analyzed under the Due Process Clause, not as an expansion of the Privileges or Immunities Clause.

3.3 Impact

  • For special-education administration: The decision strengthens states’ ability—especially in jurisdictions with anti-aid provisions—to deliver publicly funded special-education services to privately enrolled students off-site without triggering heightened constitutional scrutiny.
  • For parental-rights litigation: The First Circuit clarifies that Pierce protects the availability of private-school choice from state coercion, not parity in the logistical terms of public benefits. Plaintiffs will likely need to plead facts showing a true “penalty” or “barrier” (not inconvenience) designed to deter private schooling to get past step two.
  • For doctrinal boundaries: The opinion draws a firm line between Free Exercise “equal benefits” cases (Carson, Trinity Lutheran, Espinoza) and parental-rights claims. Without religious targeting or a Free Exercise claim, that line of authority does not elevate scrutiny for neutral benefit-administration decisions.
  • For future equal protection challenges: The court’s narrow reading of Romer v. Evans signals that rational-basis invalidation will remain unusual absent breadth discontinuity and plausible animus.

4. Complex Concepts Simplified

  • FAPE (Free Appropriate Public Education): The baseline guarantee (under IDEA and similarly under Massachusetts law) that eligible students receive special education and related services designed to meet their needs.
  • IEP (Individualized Education Program): The written plan specifying a student’s special-education services (e.g., academic support hours, counseling, occupational therapy).
  • Least Restrictive Environment (LRE): A preference for educating students with disabilities alongside nondisabled peers to the maximum appropriate extent. Here, the court treated LRE as primarily about program inclusion, not a guarantee of receiving publicly funded services inside a private school building.
  • Substantive due process (three-step frame): (1) Is a fundamental right implicated? (2) Did the government action restrict it? (3) If restricted, apply heightened scrutiny; if not, apply rational basis.
  • Non-subsidy principle: Government may allow a constitutionally protected choice yet decline to fund, facilitate, or deliver benefits in the manner that best supports that choice (drawn from Maher v. Roe, Harris v. McRae, and applied to education via Norwood v. Harrison).
  • Rational basis review: The most deferential constitutional test. A law stands if any conceivable legitimate interest could rationally support it; it may be imperfect, overinclusive, or underinclusive.
  • Anti-Aid Amendment: A state constitutional prohibition on using public funds to “aid” private primary/secondary schools; Massachusetts relied on this constraint to justify off-site service delivery.
  • Privileges or Immunities Clause (14th Amendment): Interpreted narrowly after Slaughter-House Cases; generally protects rights tied to national citizenship, not the broad array of substantive liberties typically litigated under due process.

5. Conclusion

Hellman reaffirms a limiting principle on parental-rights doctrine: the Constitution protects parents from state coercion that eliminates or meaningfully impairs the option of private education, but it does not entitle families who choose private school to receive publicly funded educational services on identical logistical terms as public-school families. By treating Massachusetts’s Place Regulation as a benefit-administration rule (not a restriction on choice), the First Circuit placed the regulation under rational basis review and upheld it as a reasonable accommodation of the state’s desire to extend special-education services while honoring its Anti-Aid constitutional constraint.