Amicus Curiae Brief — Ariella Hellman, on Their Own Behalf and as Next Friend of Their Child, E. H., et al., Petitioners v. Katherine Craven, Chair, Massachusetts Board of Elementary and Secondary Education, et al.

No. 26-97

IN THE

Supreme Court of the United States

ARIELLA HELLMAN, ON THEIR OWN BEHALF AND AS NEXT

FRIEND OF THEIR CHILD, E. H., ET AL.,

Petitioners,

v.

KATHERINE CRAVEN, CHAIR, MASSACHUSETTS BOARD OF

ELEMENTARY AND SECONDARY EDUCATION, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF OF FOUNDATION FOR EXCELLENCE IN

EDUCATION, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Christopher G. Michel

Megan McGlynn Butler

Jordan L. Greene

Spencer J. Reeves

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Philip M. Cooper

Counsel of Record

KIRKLAND & ELLIS LLP

333 W. Wolf Point Plaza

Chicago, IL 60654

(312) 862-2000

philip.cooper@kirkland.com

Counsel for Amicus Curiae

August 20, 2026

i

QUESTION PRESENTED

Does the unconstitutional conditions doctrine apply to the right, recognized in Pierce v. Society of Sisters, to send one’s child to a private school?

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ...............................................................4

I.

THE PIERCE RIGHT IS DEEPLY

ROOTED IN LAW, TRADITION, AND

FAMILIES’ EXPECTATIONS. ........................4

II.

DECISIONS EXPANSIVELY

INTERPRETING EDUCATION

CLAUSES IN STATE

CONSTITUTIONS UNDERMINE THE

PIERCE RIGHT. ..............................................7

A.

III.

Bush v. Holmes Undermined

Parents’ Ability to Exercise Their

Pierce Right. ...........................................9

B.

Other

State

Courts

(And

Litigants) Have Used HolmesType Reasoning to Limit Parents’

Educational Choices.............................12

THIS COURT SHOULD GRANT

CERTIORARI TO EXPLAIN THE

LIMITS THE PIERCE RIGHT PLACES

ON STATE EDUCATION CLAUSES............18

CONCLUSION ..........................................................22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ark. Dep’t of Educ. v. Faulkenberry,

725 S.W.3d 199 (Ark. 2025) ................................. 16

Bush v. Holmes,

767 So. 2d 668 (Fla. 1st DCA 2000)........ 2, 9-11, 15

Bush v. Holmes,

886 So. 2d 340 (Fla. 1st DCA 2004)..................... 11

Bush v. Holmes,

919 So. 2d 392 (Fla. 2006) ................... 2, 11, 12, 19

Commonwealth ex rel. Cameron v.

Johnson,

658 S.W.3d 25 (Ky. 2022)............................... 14, 20

Carson v. Makin,

596 U.S. 767 (2022) ................................................ 7

Commonwealth ex rel. Coleman v.

Council for Better Educ., Inc.,

730 S.W.3d 787 (Ky. 2026)................................... 14

Columbus City Sch. Dist. v. State,

No. 22 CV 67 (Ohio C.P. Franklin

Cnty. June 24, 2025) ...................................... 15, 21

iv

Columbus City Sch. Dist. v. State,

No. 25-AP-000603 (Ohio 10th Dist.

Ct. App. 2025) ...................................................... 15

Eidson v. S.C. Dep’t of Educ.,

906 S.E.2d 345 (S.C. 2024) .................................. 13

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) .......................................... 7, 20

Farrington v. Tokushige,

273 U.S. 284 (1927) ................................................ 4

Faulkenberry v. Ark. Dep’t Educ.,

No. 60CV-24-4630 (Ark. Cir. Ct.

Pulaski Cnty. June 7, 2024) ................................ 16

Fla. Dep’t of Child. & Fams. v. F.L.,

880 So. 2d 602 (Fla. 2004) ................................... 20

Hellman v. Mass. Dep’t of Elementary &

Secondary Educ.,

171 F.4th 69 (1st Cir. 2026) ....................... 3, 18, 19

Holmes v. Bush,

790 So. 2d 1104 (Fla. 2001) ................................. 11

Labresh v. Brown,

No. 20250512 (Utah June 24, 2025) .................... 15

Labresh v. Cox,

2025 WL 4961149 (Utah 3d Jud.

Dist. Ct. Apr. 18, 2025) .................................. 15, 21

v

League of Women Voters of Wash. v. State,

355 P.3d 1131 (Wash. 2015) ................................ 14

Mahmoud v. Taylor,

606 U.S. 522 (2025) ................................................ 5

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................ 4

Mirabelli v. Bonta,

607 U.S. 492 (2026) ................................................ 6

Mont. Quality Educ. Coal. v. State,

No. ADV-2024-44 (Mont. 1st Jud.

Dist. Ct. Lewis & Clark Cnty. Dec. 8,

2025) ..................................................................... 15

Mont. Quality Educ. Coal. v. State,

No. DA 26-0179 (Mont. 2026) .............................. 15

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ................................ 1-6, 18, 21

Spar v. Kamoutsas,

No. 2026 CA 000929

(Fla. 2d Cir. Ct. May 5, 2026) ........................ 16, 17

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

582 U.S. 449 (2017) ................................................ 7

Troxel v. Granville,

530 U.S. 57 (2000) .................................................. 6

vi

Washington v. Glucksberg,

521 U.S. 702 (1997) .......................................... 5, 14

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................ 5

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ................................................ 7

Statutes and Constitutions

Ark. Const. art. 14, §§ 1-3 ......................................... 16

Ch. 99-398, Laws of Fla. ............................................. 9

Fla. Const. art. I, § 3 ................................................. 11

Fla. Const. art. IX, § 1(a)............................................. 8

Fla. Const. art. IX, § 6 ............................................... 17

Fla. Stat. § 229.0537(1) (1999) .................................... 9

Fla. Stat. § 1002.39(1) ................................................. 9

Fla. Stat. § 1002.394(4)(b) (2025) ............................. 16

Mass. Const. amend. art. XVIII, § 2 ..................... 8, 18

S.C. Const. art. XI, § 4............................................... 13

Rules

S. Ct. Rule 37.2 ............................................................ 1

vii

S. Ct. Rule 37.6 ............................................................ 1

Other Authorities

Angela R. Watson,

Homeschool Growth: 2024-2025,

Johns Hopkins School of Education

(Nov. 2025) ............................................................. 6

Clark Neily,

The Florida Supreme Court vs.

School Choice: A “Uniformly” Horrid

Decision,

10 TEX. REV. L. & POL. 401 (2006) ......................... 9

National Center for Education Statistics,

Private School Universe Survey............................. 6

Nicole Stelle Garnett & John A. Meiser,

Preserving the Exit Option: State

Public Education Mandates and

Parental Rights in Education,

100 NOTRE DAME L. REV. 1709 (2025) ................... 7

Nicole Stelle Garnett & Michael Q. Shane,

Implementing K-12 Education Savings

Accounts (2023) .................................................... 13

Press Release,

Governor Ron DeSantis Announces

School Choice Success

(Jan. 10, 2025) ...................................................... 16

1

INTEREST OF AMICUS CURIAE

The Foundation for Excellence in Education, Inc.

(“ExcelinEd”) is a 501(c)(3) nonprofit, nonpartisan organization founded and led by former Governor Jeb

Bush to build on the groundbreaking education reforms that he implemented in Florida. ExcelinEd is

now active in over 40 states, where it pursues policies

that equip every child to achieve his or her potential.

Its work includes designing and promoting studentcentered systems and providing model legislation,

rule-making expertise, implementation assistance,

and public outreach.1

ExcelinEd’s interest in this case stems from the recurring obstacles that state constitutional provisions—like Massachusetts’s anti-aid clause—pose to

the efforts of parents to exercise their federal constitutional right to direct their children’s educations.

See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).

Such obstacles also jeopardize ExcelinEd’s mission of

promoting a student-centered education system. ExcelinEd thus supports this Court’s review.

1

Pursuant to Rule 37.2, amicus provided timely notice of its

intention to file this brief. In accord with Rule 37.6, no counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than amicus curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

Parents—not states—are the chief guardians of

their children’s educations. This Court has held for

over a century that the Fourteenth Amendment protects the fundamental right of parents to send their

children to private school. See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925). Today, millions of parents

exercise that right to choose the educational environments that best suit their children’s needs.

Anti-school-choice advocates and, at times, courts

adopting their views have tried to stymie conscientious parents’ exercise of their constitutional rights by

seizing on state constitutional provisions that purportedly restrict the use of public funding in private

education. The education clause of Florida’s Constitution, for example, hampered the efforts of ExcelinEd’s founder and chairman, Governor Jeb Bush,

to reform the state’s education system in the early

2000s. Despite early victories for Governor Bush’s efforts, see Bush v. Holmes, 767 So. 2d 668 (Fla. 1st DCA

2000) (litigated by now-Justice Kavanaugh as outside

counsel for Governor Bush), the Florida Supreme

Court ultimately rejected a program that allowed students to escape failing public schools by attending private schools, see Bush v. Holmes, 919 So. 2d 392, 412

(Fla. 2006). The court reasoned that the program diverted funds from Florida’s public schools, supposedly

in violation of a constitutional provision requiring “a

uniform, efficient, safe, secure, and high quality system of free public schools.” Id. at 398.

3

The decision below is cut from similar cloth (as are

several other recent state-court decisions, see infra

Section II.B). The First Circuit upheld a state regulation “promulgated … because Massachusetts’s state

constitution restricts the use of public funds to support private schools,” which here severely restricts Petitioners’ access to special-education services. Hellman v. Mass. Dep’t of Elementary & Secondary Educ.,

171 F.4th 69, 76 (1st Cir. 2026). The upshot is that

parents face the unconstitutional dilemma of leaving

their children in public schools that parents deem unsuitable for their children’s needs, or forgoing crucial

resources that the state otherwise promises to students.

This case presents a clean and important opportunity to explain that the Fourteenth Amendment forbids states from penalizing parents who exercise their

constitutional right to choose private school. A holding that Massachusetts violated Petitioners’ rights

will have two key consequences for ongoing litigation

involving the interplay of state constitutional provisions and state support for private education. First, it

will restrict states from denying otherwise generally

available resources to students simply because their

parents choose to send them to a private school. Second, applying the unconstitutional conditions doctrine

to the Pierce right will give state courts (and lower federal courts) important guidance for interpreting education clauses in state constitutions. Like Florida’s

Constitution as interpreted by Holmes, many state

constitutions have education clauses that state courts

have construed to bar support for private education.

4

A decision by this Court that states cannot unreasonably disadvantage private-school students would provide valuable guidance on the proper construction of

such clauses to avoid conflict with the Federal Constitution.

ARGUMENT

I.

THE PIERCE RIGHT IS DEEPLY

ROOTED IN LAW, TRADITION, AND

FAMILIES’ EXPECTATIONS.

For over one hundred years, this Court has recognized the fundamental right of parents to direct the

education of their children. This Court first recognized that fundamental right through a trilogy of

cases in the 1920s. See Meyer v. Nebraska, 262 U.S.

390 (1923); Pierce, 268 U.S. 510; Farrington v. Tokushige, 273 U.S. 284 (1927). Pierce is the trilogy’s

crown jewel. That case involved a challenge to an Oregon statute requiring parents or guardians of all students aged eight to sixteen to send their children to

public school. Pierce, 268 U.S. at 529-30. The Society

of Sisters, a religious order operating private schools

in Oregon, and Hill Military Academy challenged the

statute. Id. at 531-33. The Society argued that the

statute “conflict[ed] with the right of parents to choose

schools where their children will receive appropriate

mental and religious training.” Id. at 532.

This Court agreed that Oregon’s compulsory-public-education statute violated the parents’ rights. It

found “entirely plain” that the statute “unreasonably

5

interfere[d] with the liberty of parents and guardians

to direct the upbringing and education of children under their control.” Id. at 534-35. And it recognized

that parents—not state governments—are ultimately

responsible for children’s education:

The fundamental theory of liberty upon

which all governments in this Union repose excludes any general power of the

state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the

mere creature of the state; those who

nurture him and direct his destiny have

the right, coupled with the high duty, to

recognize and prepare him for additional

obligations.

Id. at 535. In other words, the state has no legitimate

interest in producing a homogenous citizenry through

compulsory public instruction. This Court accordingly

held that Oregon could not force students to attend

public school over their parents’ decision to privately

educate them.

In the century since, this Court has reaffirmed the

importance, vitality, and breadth of the Pierce right.

Pierce not only protects “the rights of parents to direct

the religious upbringing of their children,” Wisconsin

v. Yoder, 406 U.S. 205, 233 (1972); see also Mahmoud

v. Taylor, 606 U.S. 522, 547 (2025), but “to direct the

education and upbringing of one’s children” generally,

Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

6

The Pierce right “is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Troxel v. Granville, 530 U.S. 57, 65 (2000). Just last

term, this Court reaffirmed that “[u]nder long-established precedent, parents—not the State—have primary authority with respect to ‘the upbringing and education of children.’” Mirabelli v. Bonta, 607 U.S. 492,

497 (2026) (per curiam) (quoting Pierce, 268 U.S. at

534-35).

Millions of parents nationwide rely on this Court’s

consistent reaffirmation of Pierce. Every school day,

nearly eight million American schoolchildren receive

their education outside the four walls of a public institution.2 In 2026, as in 1925, parents cherish their fundamental right, “coupled with the[ir] high duty,” to

see that their children learn in an environment that

best fits their needs and circumstances. Pierce, 268

U.S. at 535.

2

See National Center for Education Statistics, Private School

Universe Survey, tbl. 14, https://perma.cc/WBX7-M3LZ (4.7

million private-school students for the 2021-22 school year);

Angela R. Watson, Homeschool Growth: 2024-2025, Johns

Hopkins School of Education (Nov. 2025), https://tinyurl.com/2tbemdn6 (approximately three million homeschooled students for the 2024-25 school year).

7

II.

DECISIONS EXPANSIVELY INTERPRETING EDUCATION CLAUSES IN STATE

CONSTITUTIONS UNDERMINE THE

PIERCE RIGHT.

Opponents of parental choice have not gone quietly. They frequently attacked state funding of private education on the theory that states should not

provide resources to religious schools—often invoking

the federal Establishment Clause or anti-Catholic

Blaine Amendments in state constitutions from the

late 19th century—but this Court has now foreclosed

that gambit. See Zelman v. Simmons-Harris, 536 U.S.

639, 662-63 (2002) (rejecting Establishment-Clause

challenge); Trinity Lutheran Church of Columbia, Inc.

v. Comer, 582 U.S. 449, 466-67 (2017) (rejecting exclusion of religious institution from state-assistance program, as ostensibly justified by state constitution); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 486-87

(2020) (similar); Carson v. Makin, 596 U.S. 767, 789

(2022). In light of these decisions, “opponents have

fewer weapons to wield against the expansion of parental choice in court.” Nicole Stelle Garnett & John

A. Meiser, Preserving the Exit Option: State Public

Education Mandates and Parental Rights in Education, 100 NOTRE DAME L. REV. 1709, 1712-13 (2025)

(footnote omitted).

Public-school monopolists, however, have found

greater success invoking ostensibly religion-neutral

state constitutional provisions that have the same

consequence of forcing parents to choose between the

constitutional right to educate their children and the

8

resources that states promise to students. These constitutional provisions emphasize the importance—or

even ostensible primacy—of public education. Some

constitutional provisions, like Florida’s, require “a

uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.” Fla. Const. art. IX,

§ 1(a). Other constitutional provisions, like Massachusetts’s, forbid any “grant, appropriation, or use of

public money … for the purpose of founding, maintaining or aiding any … [private] primary or secondary school.” Mass. Const. amend. art. XVIII, § 2. Public-school monopolists have seized on such language to

penalize families who opt out of the public school system.

Wielding Florida’s provision, anti-choice advocates

notched a significant victory in the early 2000s litigation over Florida’s Opportunity Scholarship Program,

championed by ExcelinEd’s founder and chairman,

former Florida Governor Jeb Bush. Since their success in Florida, advocates for state-run education have

repeatedly used the same playbook to stop legislatures from implementing innovative, choice-maximizing education programs, including those providing opportunities to students from vulnerable or disadvantaged backgrounds. Those arguments have found

some success—and the value of parents’ Pierce right

has decreased as a result.

9

A.

Bush v. Holmes Undermined Parents’ Ability to Exercise Their Pierce

Right.

In 1999, Florida enacted the Opportunity Scholarship Program (“OSP”), the first statewide voucher program in the United States. The OSP was part of Governor Bush’s A+ Plan for Education, which aimed to

improve “transparency, accountability, and parental

choice” in Florida’s education system. Clark Neily,

The Florida Supreme Court vs. School Choice: A “Uniformly” Horrid Decision, 10 TEX. REV. L. & POL. 401,

406 (2006); see also Ch. 99–398, Laws of Fla.

The OSP provided educational alternatives for students in a public school “found by the state to be failing for 2 years in a 4-year period.” Fla. Stat.

§ 229.0537(1) (1999). Those students were eligible for

“opportunity scholarships … to attend a public school

that is performing satisfactorily or to attend an eligible private school.” Id.

The A+ Plan for Education also included a similar

scholarship program for students with disabilities,

later called the John M. McKay Scholarship Program.

See Fla. Stat. § 229.0537(1) (1999); id. § 1002.39

(2002). Once expanded beyond its pilot run, the

McKay Scholarship Program provided certain disabled students a scholarship to “attend a public school

other than the one to which assigned” or “a private

school of choice.” Fla. Stat. § 1002.39(1). This program recognized that, like for the children with disabilities in this case, a traditional public school might

10

not be the best option, and it respected and supported

parents’ right to decide which option was best.

The day after Governor Bush signed the A+ Plan

into law, a coalition of anti-education-choice plaintiffs,

unions, and interest groups sued in Florida court,

claiming the OSP violated various provisions of the

Florida Constitution and the federal Establishment

Clause. See Bush v. Holmes, 767 So. 2d 668, 671 (Fla.

1st DCA 2000) (“Holmes I”). The trial court entered

judgment for the challengers, concluding that the OSP

“insofar as it establishes a program through which the

State pays tuition for certain students to attend private schools, is … unconstitutional on its face under

Article IX, § 1 of the Florida Constitution,” Florida’s

education clause. Id. at 672.

But on appeal, the arguments advanced by Governor Bush carried the day. The First District Court of

Appeal held that the OSP was consistent with the

Florida Constitution’s education clause. It rejected

the trial court’s reasoning that the expressio unius

canon meant that, because the constitution required a

uniform system of public schools, the constitution also

prohibited the state legislature from funding any

other type of K-12 education. Holmes I, 767 So. 2d at

674 (litigated by now-Justice Kavanaugh as outside

counsel for Governor Bush). Instead, the appellate

court emphasized that Florida’s “Constitution is a limitation upon, rather than a grant of, power,” and that

courts should hesitate to read in implied limitations.

Id. at 673. It thus concluded that the constitution’s

education clause “does not unalterably hitch the

11

requirement to make adequate provision for education

to a single, specified engine, that being the public

school system.” Id. at 675. In other words, although

the Florida Constitution provided a floor that required

that the legislature provide public schools, it did not

create a ceiling that prohibits the legislature from

providing benefits or support to parents who exercised

their Pierce right to choose a different education for

their children. Initially, the Florida Supreme Court

denied review. See Holmes v. Bush, 790 So. 2d 1104

(Fla. 2001) (table).

After the decision in Holmes I, litigation continued

over whether the OSP was unconstitutional under a

different provision of Florida’s Constitution—the

state’s Blaine Amendment. See Fla. Const. art. I, § 3.

The First District Court of Appeal concluded that it

was. See Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA

2004) (en banc) (“Holmes II”).

Now willing to consider the case, a divided Florida

Supreme Court affirmed under the education clause—

the issue in Holmes I—rather than Florida’s Blaine

Amendment. Bush v. Holmes, 919 So. 2d 392, 412

(Fla. 2006) (“Holmes III”). Relying on the expressio

unius canon, the majority concluded that the education clause “mandates that the state’s obligation is to

provide for the education of Florida’s children, specifies that the manner of fulfilling this obligation is by

providing a uniform, high quality system of free public

education, and does not authorize additional equivalent alternatives.” Id. at 408.

12

The Holmes III majority reasoned that the OSP violated the education clause in two ways: (1) “the OSP

diverts funds that would otherwise be provided to the

system of free public schools that is the exclusive

means set out in the Constitution for the Legislature

to make adequate provision for the education of children;” and (2) “[t]he OSP makes no provision to ensure that the private school alternative to the public

school system meets the criterion of uniformity” required by the education clause. Id. at 408-09.

Holmes’ constitutional analysis thus impeded Florida’s efforts to improve education and support parents’ exercise of their Pierce right to choose the best

education for their children. And, as explained below,

its reasoning became a playbook for future litigation

seeking to reduce the choices available to parents.

B.

Other State Courts (And Litigants)

Have Used Holmes-Type Reasoning

to Limit Parents’ Educational

Choices.

More recent efforts to obstruct private education

have experienced similar successes. Other state

courts have recently struck down programs providing

benefits to privately educated students under state

education clauses using reasoning like that in Holmes,

and plaintiffs in ongoing litigation have advanced parallel arguments.

South Carolina. A divided South Carolina Supreme Court struck down part of that state’s

13

education-savings account (“ESA”) program,3 holding

that the state constitution’s “no-aid” provision barred

the legislature from permitting students to use state

funds at non-public schools. See Eidson v. S.C. Dep’t

of Educ., 906 S.E.2d 345, 355-56 (S.C. 2024) (citing

S.C. Const. art. XI, § 4). Taking a capacious view of

constitutional language barring any “direct benefit” to

private schools, the majority explained that although

the benefit to private schools was contingent and mediated by student choice, that was not enough to save

the provision. Id. at 354 (“Like the tide, the public

funds released by the Act for tuition benefit all education service providers, public and private. But just because the benefit is diffuse does not mean it is not direct; the effect of the tide is the same on all the

boats.”). But see id. at 364 (Kittredge, C.J., dissenting) (“[T]he majority opinion today defines the phrase

‘direct benefit’ so broadly that it swallows any possible

meaning of ‘indirect benefit’ in the process.”).

Kentucky. The Kentucky Supreme Court has repeatedly relied on Holmes-like reasoning about the

supposed diversion of state education funds. It held

unconstitutional Kentucky’s ESA program, which allowed “[s]tudents attending public and nonpublic institutions” to use tax-credited funds on “online

3

ESAs are state education programs that “provide students

with public resources that families can use for qualified education expenses to fit the educational needs of children (including private school tuition but also much more).” Nicole

Stelle Garnett & Michael Q. Shane, Implementing K-12 Education Savings Accounts 2 (2023).

14

learning programs, tutoring, extracurricular activities, computer hardware and software, standardized

testing, special education therapy programs, and

transportation” and, in some cases, “nonpublic school

tuition assistance.” Commonwealth ex rel. Cameron

v. Johnson, 658 S.W.3d 25, 30 (Ky. 2022). In the

court’s view, the law ran afoul of Section 184 of the

Kentucky Constitution, which prohibits raising funds

“for education other than in common schools” absent

a referendum, because it provided funds to privateschool students. Id. at 31; see also Commonwealth ex

rel. Coleman v. Council for Better Educ., Inc., 730

S.W.3d 787, 797 (Ky. 2026) (striking down Kentucky’s

charter-school law on same grounds).

Washington. Relying on Holmes-type arguments,

the Washington Supreme Court held Washington’s

Charter School Act unconstitutional because (1) charter schools were not “common schools” within the

meaning of the state constitution and (2) the act unlawfully diverted common-school funds from those

schools to the state’s charter schools. League of

Women Voters of Wash. v. State, 355 P.3d 1131, 1141

(Wash. 2015), as amended on denial of recons. (Nov.

19, 2015).

Utah. In an ongoing case, a Utah trial court

granted summary judgment to challengers to Utah’s

ESA program, which provided funds to home-educated and private-school students for various educational expenses, reasoning that Utah’s education

clause “is a ceiling” and prohibits the state from appropriating any public funds for any education

15

program outside of public schools. Labresh v. Cox,

2025 WL 4961149, at *25-26, *42 (Utah 3d Jud. Dist.

Ct. Apr. 18, 2025). The case is now pending before the

Utah Supreme Court.

Labresh v. Brown,

No. 20250512 (Utah June 24, 2025) (granting appeal).

Ohio. An Ohio trial court entered summary judgment in favor of challengers to an Ohio voucher program on a diversion theory like the one in Holmes. See

Columbus City Sch. Dist. v. State, No. 22 CV 67, slip

op. at 20 (Ohio C.P. Franklin Cnty. June 24, 2025)

(“[T]he State may not fund private schools at the expense of public schools or in a manner that undermines its obligation to public education.”). An appeal

is pending. See Columbus City Sch. Dist. v. State,

No. 25-AP-000603 (Ohio 10th Dist. Ct. App. 2025).

Montana. A suit in Montana challenges an ESA

program for students with disabilities on the ground

that disparate participation in the program across

school districts might lead to those districts being

funded in an inequitable manner, in violation of the

Montana Constitution. See Mont. Quality Educ. Coal.

v. State, No. ADV-2024-44, slip op. at 15-16 (Mont. 1st

Jud. Dist. Ct. Lewis & Clark Cnty. Dec. 8, 2025)

(granting plaintiffs’ motion for summary judgment in

part on other grounds). An appeal is currently pending in the Montana Supreme Court. See Mont. Quality Educ. Coal. v. State, No. DA 26-0179 (Mont. 2026).

Arkansas. Plaintiffs are challenging Arkansas’s

ESA program on the grounds that it violates the Arkansas Constitution’s requirement that the state

16

maintain free public schools and is unconstitutionally

diverting public-school funds for non-public-school

uses—advancing an expressio unius argument like the

one used in Holmes. See Compl. ¶¶ 61-79, Faulkenberry v. Ark. Dep’t Educ., No. 60CV-24-4630 (Ark. Cir.

Ct. Pulaski Cnty. June 7, 2024) (citing Ark. Const. art.

14, §§ 1-3); see also Ark. Dep’t of Educ. v. Faulkenberry, 725 S.W.3d 199, 200 (Ark. 2025) (dismissing interlocutory appeal of denial of motion to dismiss).

Florida. New litigation in Florida relying on

Holmes threatens the Florida legislature’s efforts to

broaden the educational options available to children.

A recent lawsuit challenges Florida’s universal ESA

program and public charter-school program, including

a program for students with disabilities: the Family

Empower Scholarship for Unique Abilities (“FESUA”). Compl. ¶¶ 25-26, 28, Spar v. Kamoutsas, No.

2026 CA 000929 (Fla. 2d Cir. Ct. May 5, 2026) (“Spar

Compl.”). The FES-UA provides funds for students

with disabilities, whether or not they are in public

schools, that they can use for “[i]nstructional materials, including digital devices, digital periphery devices, and assistive technology devices,” “[s]pecialized

services by approved providers or by a hospital in this

state which are selected by the parent,” fees associated with home schooling or private school, tutoring,

“summer education programs,” “after-school education programs,” and other educational purposes. Fla.

Stat. § 1002.394(4)(b) (2025). Over 500,000 Florida

students have opted to participate in Florida’s universal ESA programs, including FES-UA. See Press Release, Governor Ron DeSantis Announces School

17

Choice Success (Jan. 10, 2025), https://perma.cc/P6FZ2A2W.

Relying on reasoning similar to Holmes, the plaintiffs argue that the FES-UA violates the Florida Constitution’s uniformity clause by directing public funds

outside the public-school system to private schools or

a home-education environment. Spar Compl. ¶¶ 7175. Similarly, plaintiffs claim that the FES-UA violates the Florida Constitution by using state education funds “for a purpose other than ‘the support and

maintenance of free public schools.’” Id. ¶¶ 76-80

(quoting Fla. Const. art. IX, § 6). Despite Florida’s

leadership in providing parents exercising their Pierce

right with the best educational options available, opponents continue to use the Holmes arguments to

limit parents’ choices and access to the education and

resources their children need to succeed.

*

*

*

Education clauses in state constitutions have long

dogged efforts to support parents’ exercise of their

Pierce right. The capacious interpretations afforded

by Holmes and its progeny to such clauses make matters worse. And because these clauses are facially

neutral as to religion, the Free Exercise Clause is of

less help to children who are denied otherwise-available benefits when their parents opt for private education. If Pierce’s promise that the state may not “standardize its children by forcing them to accept instruction from public teachers only” is to be vindicated,

18

protection must flow from the Pierce right itself. 268

U.S. at 535.

III.

THIS COURT SHOULD GRANT CERTIORARI TO EXPLAIN THE LIMITS THE

PIERCE RIGHT PLACES ON STATE EDUCATION CLAUSES.

Given the ongoing litigation seeking to undermine

state efforts to extend benefits to parents exercising

the Pierce right, it is essential that this Court clarify

that right’s scope and effect. This case provides an

excellent vehicle to decide whether states may constitutionally burden parents’ exercise of the Pierce right

by denying their children generally available public

benefits as punishment for opting out of the publicschool system.

As Petitioners explain, the dispute in this case

flows from yet another facially religion-neutral constitutional provision that has the now-familiar effect of

punishing parents who believe that private education

best fits their children’s needs. Massachusetts law

guarantees students publicly funded special education services. See Hellman, 171 F.4th at 75. But because the state constitution prohibits the “use of public money ... for the purpose of founding, maintaining

or aiding any … [private] school,” Mass. Const.

amend. art. XVIII, § 2, the state has adopted a socalled “Place Regulation” that prevents students enrolled in private schools from availing themselves of

this guarantee in their schools. Hellman, 171 F.4th at

76-77. Instead, students and parents who have

19

invoked their Pierce right must undergo the burdens

of transporting students to-and-from private schools

and supposedly “neutral” locations to have access to

services that are provided directly to students in public schools. Id.

As Petitioners correctly explain, that regime imposes an unconstitutional condition. It also presents

an ideal opportunity for this Court to provide two key

points of guidance for ongoing disputes about education clauses in state constitutions.

First, a decision by this Court would clarify

whether state constitutions’ no-aid clauses may exclude private-school students from generally available

public benefits. As explained above, many state constitutions have clauses that certain courts have interpreted to deny otherwise-available educational benefits to students enrolled in private schools.

Second, deciding whether the unconstitutionalconditions doctrine applies to the Pierce right would

give state courts (and lower federal courts) important

guidance for interpreting ambiguous education

clauses in state constitutions. Even when state constitutions do not expressly forbid the use of public

funds in aid of private education (such as in Holmes),

courts have used dubious interpretative tools to construe vague constitutional language to create an artificial ceiling on such support. For example, Holmes

III misapplied the expressio unius canon to conclude

that free public schools were the only means of educating children that Florida could support. 919 So. 2d

20

at 408. In doing so, the court never considered

whether its decision might bring Florida’s Constitution into conflict with the Federal Constitution—no

doubt because the plain text of Florida’s Constitution

did not directly violate Pierce. Had the Florida Supreme Court understood that the Fourteenth Amendment prohibits states from unduly burdening parents’

choice to opt out of the public school system, it might

have reconsidered its expansive interpretation of the

Florida Constitution’s preference for public education

under the doctrine of constitutional avoidance. Cf.

Fla. Dep’t of Child. & Fams. v. F.L., 880 So. 2d 602,

607 (Fla. 2004) (“Whenever possible … a statute

should be construed so as not to conflict with the constitution.”).4 Other state courts have made similar

mistakes in similar circumstances, which they might

have avoided had they considered whether the consequence of their interpretation would be to burden the

Pierce right. See, e.g., Johnson, 658 S.W.3d at 35-36;

4

As Petitioners explain, granting them relief would not require state legislatures to enable the Pierce right’s exercise.

Pet. at 34 n.13. In other words, it would not create a constitutional requirement for school vouchers nationwide. As this

Court explained in Espinoza, “[a] State need not subsidize

private education”—but “once a State decides to do so,” distribution of those resources must comply with the Federal

Constitution. 591 U.S. at 487. Similarly, if Petitioners prevail here, a state need not provide special education services

(or transportation or school supplies or a scholarship to escape a failing public school) to schoolchildren. But once it

does, it may not exclude students, or offer benefits to them

on disadvantageous terms, because their parents choose to

exercise their Pierce right.

21

Labresh, 2025 WL 4961149, at *24 (citing Holmes III);

Columbus City Sch. Dist., slip op. at 20. Guidance

from this Court about states’ duties to avoid placing

unconstitutional conditions on the Pierce right could

encourage states to avoid interpreting their education

clauses to prevent them from aiding private school

students—and thus limiting their ability to provide

for the adequate education of all K-12 students.

*

*

*

For over a century, this Court has protected the

right of parents to direct their children’s education.

And there is increasing enthusiasm among state legislatures to support parental choice, including by expanding support for private education. But opponents

of educational freedom continue to invoke state constitutional provisions to “forc[e] [children] to accept

instruction from public teachers.” Pierce, 268 U.S. at

535. As Florida’s experience with Bush v. Holmes

shows, state courts often fall for it. This Court’s intervention is necessary to protect the Pierce right.

22

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

Philip M. Cooper

Counsel of Record

KIRKLAND & ELLIS LLP

333 W. Wolf Point Plaza

Chicago, IL 60654

(312) 862-2000

philip.cooper@kirkland.com

Christopher G. Michel

Megan McGlynn Butler

Jordan L. Greene

Spencer J. Reeves

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Counsel for Amicus Curiae

August 20, 2026