In Hellman v. Mass. Dep’t of Elementary and Secondary Education (1st Cir. Mar. 20, 2026), the parents of E.H. and H.H. (“Parents”), two children with disabilities enrolled in private school, challenged the Massachusetts law requiring that “special education services funded by state or local funds [be] provided in a public school facility or other public or neutral site” (the “Place Regulation”) by claiming it violates Due Process, Equal Protection, and Privileges or Immunities Clause by interfering with their fundamental constitutional right to enroll their children in private school.
The Court concluded that 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. Furthermore, this regulation does not penalize parents for choosing private school, but rather is a rational way to deliver services while complying with a state’s “anti-aid” laws.
Pennsylvania Law and Equitable Participation Services
The IDEA does not grant students with disabilities placed by their parents in private schools the right to special education services, but only to a proportionate share of the state’s IDEA funds.
Pennsylvania follows the IDEA’s mandate that all children with disabilities are entitled to a free appropriate public education (“FAPE”). Students enrolled in their school district of residence or a charter school (“LEAs”) receive all services necessary for a FAPE within a program provided by the LEA. Students with disabilities who are placed in private schools by their parents do not have an individual right to FAPE but instead, are entitled to equitable participation via auxiliary services provided by the Intermediate Unit in which the private school is located. LEAs allocate a proportionate share of federal IDEA funds to provide these services to private school students.
Auxiliary services may be provided to any student residing in the Commonwealth, enrolled in Grades K-12, and whose tuition is not paid by the Commonwealth. The services provided are determined through consultation between the IU and private school and must be secular, neutral, and non-ideological. Pennsylvania law does not limit the location of services as strictly as Massachusetts.
Auxiliary services can be provided in public school buildings, facilities leased by the IU, nonpublic nonsectarian schools, and can be provided to mixed groups of public and private school students. Pennsylvania law does prohibit the provision of auxiliary services in churches, synagogues, and facilities under the control of a sectarian school.
The clarification of the rights afforded to parentally placed private school students with disabilities also raises questions about the scope of an LEA’s obligations to transport a private school student to equitable services.
State law impacts these responsibilities. As noted in Hellman, Massachusetts law requires parents to transport their children to public locations to receiv special education services.
In Pennsylvania, LEAs must provide transportation if necessary for the child to benefit from or participate in equitable services in the following scenarios:
1. From the child’s school or the child’s home to a site other than the private school; and
2. From the service site to the private school, or to the child’s home, depending on the timing of the services.
Bottom Line For Schools
This ruling sustains the authority of states to restrict where publicly funded special education services are provided to private school students and suggests that similar challenges by parents may not prove fruitful. The Parents in Hellman have indicated they will appeal to the United States Supreme Court. KingSpry will continue to monitor this case and provide updates once available.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. If your school has a question, please consult your legal counsel or one of the Special Education attorneys at KingSpry.
