The U.S. Court of Appeals for the First Circuit, in Boston, ruled last week against two sets of Jewish parents who sued seeking to use commonwealth funding for special-needs children for their kids at private day schools.
Gustavo Gelpí, a judge on the court, wrote that Ariella and David Hellman and Josh Harrison and Miriam Segura-Harrison failed to “plausibly allege” that their children lacking access to services at private school infringes on their rights.
“Massachusetts grants all of the state’s students with disabilities an individual entitlement to publicly funded special education services, but state regulations distinguish between public and private school students when determining where those services may be provided,” the judge wrote. “While public school students may generally receive services at their schools of enrollment, private school students may receive services only at a public school or another public or neutral location.”
“This distinction reflects, in part, a provision of the Massachusetts Constitution that prohibits the state from providing direct aid to private schools,” he added.
The couples, whose children have attention-deficit/hyperactivity disorder and ADHD, developmental coordination disorder and dyslexia, respectively, claim that a lack of services for their children at private school “violates the Due Process, Equal Protection and Privileges or Immunities Clauses by interfering with their fundamental constitutional right to enroll their children in private school,” the judge wrote.
Both sets of parents think that their sons would be better served at a Jewish school than a public one, and both said that it was a difficult burden to transport their sons from private school during the workday to a public school to receive services.
The Supreme Court has “repeatedly distinguished state interference with a protected activity from a decision to fund an alternative activity,” the judge wrote.
“While parents have a protected right to choose private education, the state does not ‘restrict’ that right merely by declining to subsidize the private school option or by offering public services to privately enrolled students on different logistical terms than to publicly enrolled students,” he added. “Massachusetts does provide publicly funded services to privately enrolled students. It simply provides them at locations the state selects.”
Massachusetts Gov. Maura Healey, a Democrat, has not opted in to the Education Freedom Tax Credit, under which families in the commonwealth could receive funding to use for the schools of their choice, or for other education-related costs.
