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, ET AL.,

Petitioners,

v.

KATHERINE CRAVEN, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF ALLIANCE DEFENDING FREEDOM

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

DAVID A. CORTMAN

KATHERINE L. ANDERSON

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@adflegal.org

JAMES A. CAMPBELL

KELSEY C. CATINA

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 5

I.

This Court’s recent cases protect

educational decisions of both religious and

nonreligious parents. ........................................... 5

A. The

Trinity

Lutheran

trilogy

establishes that conditioning a benefit

on forfeiting a right penalizes that

right. .............................................................. 5

B. Mahmoud

applies

the

trilogy’s

reasoning and rejects burdens on

parents’ right to direct their child’s

religious upbringing. ..................................... 8

C. Mirabelli extends Mahmoud, applying

its reasoning in the fundamental

parental-rights context. ................................ 9

II. Those parent-protective precedents flow

from long-standing jurisprudence. .................... 10

A. Cases outside the free-exercise context

demonstrate that putting a price on the

exercise of a right penalizes that right....... 10

B. Time-honored

parental-rights

precedents undergird Mahmoud and

Mirabelli. ..................................................... 13

ii

III. This case illustrates why all parents—not

just religious ones—have the right to direct

their children’s education and upbringing. ...... 16

A. Massachusetts’

special-education

limits

pressure

religious

and

nonreligious parents alike into public

school. .......................................................... 16

B. The First Circuit’s reasoning provides

only religious parents relief. ....................... 18

C. This Court protects parents’ right to

direct their children’s upbringing

whether or not religious. ............................. 20

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

A.H. ex rel. Hester v. French,

985 F.3d 165 (2d Cir. 2021) ................................. 2

Agency for International Development v. Alliance

for Open Society International, Inc.,

570 U.S. 205 (2013)............................................ 13

Bethel Ministries, Inc. v. Salmon,

No. 1:19-cv-1853, 2022 WL 111164 (D. Md.

Jan. 12, 2022) ....................................................... 2

Cantwell v. Connecticut,

310 U.S. 296 (1940)............................................ 21

Carson v. Makin,

596 U.S. 767 (2022)............... 2–4, 7, 10, 12–13, 19

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993).............................................. 6

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022)............................................ 22

Dunn v. Blumstein,

405 U.S. 330 (1972)...................................... 11, 13

Employment Division, Department of Human

Resources of Oregon v. Smith,

494 U.S. 872 (1990)............................................ 20

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020).............................2–3, 6–7, 19

Frost & Frost Trucking Co. v. Railroad

Commission of California,

271 U.S. 583 (1926)............................................ 10

iv

Harman v. Forssenius,

380 U.S. 528 (1965)...................................... 10–11

Hellman v. Massachusetts Department of

Elementary & Secondary Education,

171 F.4th 69 (1st Cir. 2026) .............12–13, 18–20

Koontz v. St. Johns River Water Management

District,

570 U.S. 595 (2013)...................................... 11–12

Loffman v. California Department of Education,

119 F.4th 1147 (9th Cir. 2024) .................... 17, 19

Lyng v. Northwest Indian Cemetery Protective

Association,

485 U.S. 439 (1988)........................................ 6, 19

Mahmoud v. Taylor,

606 U.S. 522 (2025)........... 3–4, 8–9, 13–15, 17–20

McDaniel v. Paty,

435 U.S. 618 (1978).............................................. 6

Memorial Hospital v. Maricopa County,

415 U.S. 250 (1974)............................................ 11

Meyer v. Nebraska,

262 U.S. 390 (1923).............................4, 10, 21, 23

Mirabelli v. Bonta,

607 U.S. 492 (2026).....................3–4, 9–10, 15, 23

Moore v. City of East Cleveland,

431 U.S. 494 (1977)............................................ 22

Parham v. J.R.,

442 U.S. 584 (1979)........................................ 4, 23

Peter v. Wedl,

155 F.3d 992 (8th Cir. 1998) ....................... 17–18

v

Pierce v. Society of Sisters,

268 U.S. 510 (1925)...................4, 7, 10, 14, 21, 23

Shapiro v. Thompson,

394 U.S. 618 (1969)............................................ 11

Sherbert v. Varner,

374 U.S. 398 (1963).................................... 2, 6, 11

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017).......................2–3, 6, 8, 11, 19

Troxel v. Granville,

530 U.S. 57 (2000)...............................2, 15, 22, 23

United States v. American Library Association,

Inc.,

539 U.S. 194 (2003)............................................ 12

Walz v. Tax Commission of NewYork,

397 U.S. 664 (1970)............................................ 13

Washington v. Glucksberg,

521 U.S. 702 (1997)............................................ 22

Wieman v. Updegraff,

344 U.S. 183 (1952)............................................ 12

Wisconsin v. Yoder,

406 U.S. 205 (1972)......... 4, 7–8, 14–15, 19, 21, 23

Other Authorities

Philip A. Hamburger, Education Is Speech:

Parental Free Speech in Education,

101 Tex. L. Rev. 415 (2022) ............................... 17

1

INTEREST OF AMICUS CURIAE 1

This case is about whether parents can receive

state-guaranteed special-education benefits without

forfeiting their fundamental right to direct their

children’s education. Massachusetts guarantees

special-education services for all children—not just

public-school students. But it then forbids those

services on private-school premises when parents

choose to send their children to private schools

(though curiously not when the state places a child in

private school).

Many parents thus must choose between exercising their fundamental parental right and receiving

the otherwise available special-education services.

For the First Circuit, that choice raised no constitutional concerns, largely because the parents invoked

Fourteenth Amendment parental rights rather than

First Amendment free-exercise rights.

Amicus Alliance Defending Freedom (ADF) is a

nonprofit, public-interest legal organization that

provides strategic planning, training, funding, and

litigation services to protect Americans’ constitutional rights, including free exercise and parents’

fundamental right to direct the education and

upbringing of their children. ADF has represented

clients and continues to litigate many cases in the

parental-right and educational-funding contexts. As a

result, it has a keen interest in the outcome here.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel were timely notified of this brief

as required by Supreme Court Rule 37.2.

2

For example, ADF argued Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. 449

(2017), where this Court held that “a condition upon

even a gratuitous benefit” that requires participants

to “disavow [their] religious character” violates the

Free Exercise Clause. Id. at 463 (quoting Sherbert v.

Varner, 374 U.S. 398, 405 (1963)). That case was the

first in the trilogy of free-exercise cases that the court

focused on below. See Espinoza v. Mont. Dep’t of

Revenue, 591 U.S. 464 (2020); Carson v. Makin, 596

U.S. 767 (2022).

ADF has litigated other cases applying the Trinity

Lutheran trilogy’s principles. For instance, ADF fended off a state effort to exclude religious schools and

students from the state’s town-tuitioning program.

See A.H. ex rel. Hester v. French, 985 F.3d 165, 184

(2d Cir. 2021). It also successfully protected a churchrun school’s eligibility for a state voucher program.

Bethel Ministries, Inc. v. Salmon, No. 1:19-cv-1853,

2022 WL 111164, at *13 (D. Md. Jan. 12, 2022). There,

ADF litigated both the free-exercise and the parentalrights violations.

ADF has an interest in ensuring that lower courts

do not subvert the Trinity Lutheran trilogy. Those

cases apply beyond free exercise. They do not ask the

state to assist recipients in exercising their rights.

They only mandate that the state stop penalizing the

exercise of a right.

ADF also advocates to ensure that parental rights

are duly protected as “perhaps the oldest of the

fundamental liberty interests recognized by” the

Supreme Court. Troxel v. Granville, 530 U.S. 57, 65

(2000) (plurality). The First Circuit was wrong to

3

treat the fundamental parental right as second-class.

The petition should be granted.

SUMMARY OF THE ARGUMENT

This Court should grant review and stop lower

courts from interpreting this Court’s parental-rights

precedents as applying only to religious families.

Here, the First Circuit “significantly misunderstood”

the Trinity Lutheran trilogy, holding that it has no

purchase outside the free-exercise context. See

Mirabelli v. Bonta, 607 U.S. 492, 501 (2026) (Barrett,

J., concurring). New and historic precedents refute

that misinterpretation. “[G]eneral course correction”

is needed. Ibid.

Recent opinions illuminate how the Trinity Lutheran trilogy applies beyond free exercise and extends

to the fundamental parental right. That trilogy

established that the government cannot condition an

otherwise available benefit on the recipients surrendering their religion. Trinity Lutheran, 582 U.S. at

467; Espinoza, 591 U.S. at 486–87; Carson, 596 U.S.

at 789.

Mahmoud v. Taylor, 606 U.S. 522 (2025), followed, clarifying that the condition could not hinge on

parents forfeiting their right to direct the religious

upbringing of their children. Id. at 530, 546. And

Mirabelli extended that holding to any parent’s right

to direct the education and upbringing of their children. 607 U.S. at 497. All parents—not just religious

ones—have rights, especially in education.

Longstanding precedent makes those decisions

“unremarkable.” E.g., Carson, 596 U.S. at 780. For

instance, the Trinity Lutheran trilogy invoked a long

history of cases that illustrate how conditions re-

4

quiring recipients to sacrifice a constitutional right

“effectively penalize[ ]” the exercise of that right. Ibid.

(citations omitted).

Mahmoud incorporated that principle and

applied it to parents’ right to direct their children’s

religious upbringing. In doing so, Mahmoud relied on

cases grounded in the fundamental parental right.

606 U.S. at 547–50 (citing Pierce v. Soc’y of Sisters,

268 U.S. 510, 532–35 (1925); Wisconsin v. Yoder, 406

U.S. 205, 211–12, 218 (1972)). In Mirabelli, all three

opinions cited centuries-old parental-rights precedents. 607 U.S. at 497 (citing Pierce, 268 U.S. at 534–

35; Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923);

Parham v. J.R., 442 U.S. 584, 602 (1979)); id. at 499

(Barrett, J., concurring) (citing same); id. at 507

(Kagan, J., dissenting) (citing Pierce and Parham).

The situation here demonstrates why all parents—secular and religious—must have the right to

direct their child’s education. Massachusetts forbids

the provision of its promised special-education services in private schools. The First Circuit upheld that

discrimination but only as to secular families, putting

parents to a choice: (1) enroll their child in public

school to receive vital services, or (2) place their child

in private school and forgo those services or pay for

them out-of-pocket. The more severe the child’s disability, the less feasible option two becomes. In fact,

private school is not financially feasible for many

families—even before the added cost of private special-education services. Mahmoud, 606 U.S. at 560–62.

Thus, many parents may be forced to place their

children in public school to receive the specialeducation services that Massachusetts guarantees all

children. And under the First Circuit’s logic, only

5

religious parents could escape that coercion. But the

Constitution is not so feeble. Centuries of cases

protect all parents’ right to direct their children’s

education.

This Court should grant review and reaffirm that

the Constitution protects both religious and nonreligious parents’ right to direct the upbringing and

education of their children.

ARGUMENT

This case warrants review. This Court’s recent

decisions, historical precedents, and practical

implications all support robust parental-rights

protections, especially in education.

I.

This Court’s recent cases protect educational decisions of both religious and nonreligious parents.

This Court’s recent decisions on educational

choice are clear: if the government offers an educational benefit, it cannot constrain parents’ choices

about how to use that benefit. To begin, a trilogy of

free-exercise cases forbid states from excluding

religious institutions from educational benefits. This

Court then quickly clarified that reasoning to confirm

that it protected a parent’s right to direct their

children’s religious upbringing. And finally, the Court

extended that right to nonreligious parents as well.

A. The Trinity Lutheran trilogy establishes

that conditioning a benefit on forfeiting

a right penalizes that right.

In Trinity Lutheran, a state agency offered reimbursement grants to nonprofit organizations that

6

resurfaced their playgrounds with recycled tires. 582

U.S. at 454. But it disqualified all religious nonprofits

from the program. Id. at 455. This Court held that the

“basic principle[s]” of free exercise confirmed that

such a disqualification from “a generally available

benefit” “impose[d] a penalty on the free exercise of

religion.” Id. at 458 (citing McDaniel v. Paty, 435 U.S.

618, 628 (1978) (plurality)).

This Court distinguished free-exercise cases in

which the government did not “deny[ ] any person an

equal share of the rights, benefits, and privileges

enjoyed by other citizens” and thus “did not ‘penalize

religious activity.’” Id. at 460 (quoting Lyng v. Nw.

Indian Cemetery Protective Ass’n, 485 U.S. 439, 449

(1988)). In contrast, “a condition upon even a gratuitous benefit” imposed a penalty. Id. at 463 (quoting

Sherbert, 374 U.S. at 405). And such penalties

“inevitably deter[ ] or discourage[ ] the exercise ofௗ” a

person’s constitutional rights. Ibid. (quoting Sherbert,

374 U.S. at 405).

In short, past precedent “ma[de] one thing clear”:

disqualification from a public benefit “imposes a

penalty.” Id. at 462 (citing Church of Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).

Penalizing the exercise of a constitutional right is

“odious to our Constitution.” Id. at 467.

A few years later, this Court considered a state’s

tax-credit program for those contributing to scholarships for private-school tuition. Espinoza, 591 U.S. at

468–69. But families could not use the scholarships at

religious schools. Id. at 470. Applying Trinity Lutheran, the Court reached the “‘unremarkable’ conclusion

that disqualifying otherwise eligible recipients from a

public benefit ‘solely because of their religious charac-

7

ter’ imposes ‘a penalty on the free exercise of

religion.’” Id. at 475 (citation omitted). “Placing such

a condition on benefits or privileges ‘inevitably deters

or discourages’” people from exercising their constitutional rights. Id. at 478 (citations omitted).

This Court then explained that limiting the

benefit to use in nonreligious schools “burden[ed] not

only religious schools but also the families whose

children attend or hope to attend them.” Id. at 486. It

“put[ ] families to a choice between sending their

children to a religious school or receiving [otherwise

available] benefits.” Id. at 480.

This Court noted that it “ha[d] long recognized the

rights of parents to direct ‘the religious upbringing’ of

their children.” Id. at 486 (quoting Yoder, 406 U.S. at

213–14). And “[m]any parents exercise that right by

sending their children to religious schools.” Ibid.

(citing Pierce, 268 U.S. at 534–35). The state’s condition “penalize[d] that decision by cutting families off

from otherwise available benefits if they choose a

religious private school”; it “‘punishe[d] the free

exercise of religion’ by disqualifying the religious from

government aid.” Id. at 478, 486 (citation omitted).

Finally, in Carson, this Court again faced a

government tuition-assistance program that prohibited families from using the benefit at religious

institutions. 596 U.S. at 773–75. And again, this

Court held that “[b]y ‘condition[ing] the availability of

benefits’ in that manner, Maine’s tuition assistance

program ... ‘effectively penalize[d] the free exercise’ of

religion.” Id. at 780 (citations omitted). These cases

make clear that conditioning a generally available

public benefit on forfeiting a constitutional right

“penalizes” the exercise of that right.

8

B. Mahmoud applies the trilogy’s reasoning

and rejects burdens on parents’ right to

direct their child’s religious upbringing.

This Court also considered the interaction

between free-exercise rights and publicly funded education in Mahmoud. There, the public school was

promoting values antithetical to certain parents’

religious views. Mahmoud, 606 U.S. at 537–39. This

Court addressed two questions. Did that instruction

interfere with parents’ right to direct the religious

upbringing of their children? And if so, was that

interference constitutionally permissible? In answering the first question, the Court held that the instruction did burden parents’ rights because it “pose[d] ‘a

very real threat of undermining’ the religious beliefs

and practices that the parents wish[ed] to instill.” Id.

at 530, 565 (quoting Yoder, 406 U.S. at 218).

This Court then held that refusing parental optouts was constitutionally impermissible: “a government cannot condition the benefit of free public

education on parents’ acceptance of such instruction.”

Id. at 530. This Court emphasized that parents cannot be forced to accept “a burden on their religious

exercise” in exchange for a “public benefit.” Id. at 561

(quoting Trinity Lutheran, 582 U.S. at 462). Nor could

the government require parents to “either risk their

child’s exposure to burdensome instruction, or pay

substantial sums for alternative educational services.” Id. at 569.

In other words, the “availability ofௗ” private school

or homeschooling was “no answer” to the

constitutional burdens. Id. at 561. “[E]ducation is an

expensive endeavor.” Ibid. One that governments

“levy property taxes and income taxes on all

9

residents, regardless of whether they send their

children to a public school” to finance. Id. at 562.

Private school or homeschooling places an additional

“hefty price” on families. Ibid. Governments tell

parents—who “already contribute to financing the

public schools”—that they must forfeit either a

constitutional right or a publicly funded education,

but not to worry, “prohibitively expensive,”

theoretical “alternatives” exist. Ibid. That is “both

insulting and legally unsound.” Ibid.

In Mahmoud (as here), the state’s compulsory

attendance laws made the condition even more

burdensome. In effect, the parents were “not being

asked simply to forgo a public benefit.” Id. at 561.

Absent finding an “adequate substitute” for public

education, which “many parents cannot afford,”

parents were being forced to accept the burden or face

“fine or imprisonment.” Ibid.

C. Mirabelli extends Mahmoud, applying

its reasoning in the fundamental parental-rights context.

Then, in Mirabelli, this Court took the next logical

step and applied Mahmoud’s principles to the

Fourteenth Amendment’s fundamental parental

right. It extended the decision’s protections to nonreligious parents and ensured that both religious and

nonreligious parents could raise their children

consistent with their beliefs. Mirabelli opened by

explaining that the challenged policy interfered with

the “right of parents to guide the religious development of their children” and thus likely violated the

rights of religious parents. Mirabelli, 607 U.S. at 496

(quoting Mahmoud, 606 U.S. at 559).

10

The Court then held that “[t]he same is true” for

nonreligious parents. Id. at 497. Indeed, regardless of

parents’ religious position, “[u]nder long-established

precedent, parents—not the State—have primary

authority with respect to ‘the upbringing and

education of children.’” Ibid. (quoting Pierce, 268 U.S.

at 534–35) (citing Meyer, 262 U.S. at 399–400). Thus,

policies that interfere with the parents’ ability to

“direct the upbringing and education of their children” “likely violate parents’ rights” and are constitutionally impermissible. Ibid.

II. Those parent-protective precedents flow

from long-standing jurisprudence.

Those recent cases rest on a historic pedigree. The

Trinity Lutheran trilogy follows cases that “long ...

established that a State may not impose a penalty

upon those who exercise a right guaranteed by the

Constitution.” Harman v. Forssenius, 380 U.S. 528,

540 (1965) (citing Frost & Frost Trucking Co. v. R.R.

Comm’n of Cal., 271 U.S. 583 (1926)). Mahmoud

incorporates that reasoning. And both Mahmoud and

Mirabelli rely on established precedent emphasizing

the importance of parents and their rights.

A. Cases outside the free-exercise context

demonstrate that putting a price on the

exercise of a right penalizes that right.

As this Court noted, the Trinity Lutheran trilogy

did not rest on novel legal principles. Instead, those

cases applied “‘unremarkable’ principles” illustrating

that “condition[ing] the availability of benefits” on the

sacrifice of a constitutional right “effectively penalizes” the exercise of that right. Carson, 596 U.S. at

780 (citation omitted).

11

And other precedents outside the free-exercise

context—including those considering unenumerated

rights—support that common-sense conclusion.

For instance, in Dunn v. Blumstein, 405 U.S. 330

(1972), this Court discussed the constitutionality of

conditions implicating the unenumerated right to

travel. Id. at 338. There, the government imposed a

durational residency requirement for voting. Id. at

331. This Court explained that the requirement

“single[d] out” residents who had “recently exercised

th[eir] constitutionally protected right” to travel and

thus “penalize[d] [them] directly.” Id. at 338. It then

held that conditioning voting eligibility on not traveling “penalize[d] the exercise of that right.” Id. at 339

(quoting Shapiro v. Thompson, 394 U.S. 618, 634

(1969)).

The condition was a penalty because “[t]ravel

[was] permitted, but only at a price.” Id. at 341. That

the right to travel was “merely penalized” instead of

“absolutely denied” did not matter for constitutional

purposes. Ibid. Even an unenumerated right could

not be “indirectly denied.” Ibid. (quoting Harman, 380

U.S. at 540); see also Mem’l Hosp. v. Maricopa Cnty.,

415 U.S. 250, 269 (1974) (unconstitutional to

condition generally available medical care benefit on

burden to right to travel).

The nature of the benefit withheld also does not

matter for whether the condition imposes a penalty.

This Court has long held that it does not matter if the

condition is on a “gratuitous [governmental] benefit.”

Trinity Lutheran, 582 U.S. at 463 (quoting Sherbert,

374 U.S. at 405); see also Koontz v. St. Johns River

Water Mgmt. Dist., 570 U.S. 595, 608 (2013)

(collecting cases). Indeed, the Court has “repeatedly

12

rejected the argument that if the government need

not confer a benefit at all, it can withhold the benefit

because someone refuses to give up constitutional

rights.” Koontz, 570 U.S. at 608 (citing United States

v. Am. Libr. Ass’n, Inc., 539 U.S. 194 (2003); Wieman

v. Updegraff, 344 U.S. 183, 191 (1952)).

In short, this Court has long made clear that

whether a condition creates a penalty does not depend

on what right must be forfeited. If a benefit requires

the recipient to forgo a right, it penalizes that right.

Full stop. The Trinity Lutheran trilogy is just three

cases in a long line confirming that principle.

Of course, whether a benefit program imposes a

penalty is not the end of the constitutional inquiry.

The right penalized and the nature of the penalty both

affect whether the penalty is constitutional. But the

First Circuit evaded that thornier question. Instead,

it held that even if Massachusetts denies parents “an

otherwise generally available benefit” because

parents “exercise their fundamental right to enroll

their child in private school,” Massachusetts did not

“penalize that choice.” Hellman v. Mass. Dep’t of

Elementary & Secondary Educ., 171 F.4th 69, 80, 83

(1st Cir. 2026). That holding conflicts with many of

this Court’s precedents, as just discussed.

The First Circuit also attempted to circumvent

this Court’s precedent by proclaiming that Massachusetts’ condition “merely defines the terms on which

the state will provide publicly funded services to

students whose parents choose to send their children

to private school.” Id. at 80. But this Court has

already rebuffed that move because “the definition of

a particular program can always be manipulated to

subsume the challenged condition.” Carson, 596 U.S.

13

at 784 (quoting Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 570 U.S. 205, 215 (2013)) (citing Walz

v. Tax Comm’n of N.Y., 397 U.S. 664, 696 (1970)). This

Court rejects attempts to “reduce[]” the protection of

fundamental rights “to a simple semantic exercise.”

Ibid. (citation omitted).

Finally, the First Circuit excused the state because it did not “structure[ ] the special education regime to penalize those exercising their right to enroll

their children in private school.” Hellman, 171 F.4th

at 82. But the state’s intent is irrelevant. Dunn, 405

U.S. at 339–40. This Court’s cases have long confirmed that a benefit conditioned on forfeiting a right

penalizes that right. The First Circuit erred.

B. Time-honored parental-rights precedents undergird Mahmoud and Mirabelli.

Mahmoud applies the Trinity Lutheran trilogy’s

reasoning, holding that a state cannot condition a

benefit on recipients accepting a burden to their right

to direct the religious upbringing of their children. So

the precedent undergirding the Trinity Lutheran trilogy also supports Mahmoud. Longstanding precedent

likewise supports Mahmoud’s holding regarding what

constitutes that burden. That precedent reveals why

Mahmoud’s principles apply more broadly than only

to a “religious” upbringing.

Mahmoud’s heavy reliance on Yoder reveals its

parental-rights underpinnings. As Justice Thomas

noted in concurrence, Yoder “relied heavily on [this

Court’s] earlier decision in Pierce.” Mahmoud, 606

U.S. at 585 (Thomas, J., concurring). Pierce “articulated ‘perhaps the most significant statements of the

14

Court in [the parental rights] area,’” holding that

Oregon’s Compulsory Education Act “unreasonably

interfere[d] with the liberty of parents and guardians

to direct the upbringing and education of children

under their control.” Id. at 585–86 (quoting Yoder, 406

U.S. at 232; Pierce, 268 U.S. at 534–35).

As Yoder recognized, Pierce—relying on yet

another century-old parental-rights precedent—held

that a “child is not the mere creature of the State.”

406 U.S. at 233 (quoting Pierce, 268 U.S. at 534–35).

Instead, parents “have the right, coupled with the

high duty, to recognize and prepare him for additional

obligations.” Ibid. According to Yoder, those “additional obligations” are not confined to religious ones;

they also include “inculcation of moral standards” and

“elements of good citizenship.” Ibid. Parents’ right to

direct their children’s upbringing was even then

“beyond debate as an enduring American tradition.”

Id. at 232.

Mahmoud also relies on Pierce directly—not just

via Yoder. When discussing the “generous measure of

protection” the Constitution provides for parents’

decisions about how to educate their children, this

Court noted that Pierce protects “a parent’s decision

to send his or her child to a private religious school.”

Mahmoud, 606 U.S. at 547 (citing Pierce, 268 U.S. at

532–35). But, of course, Pierce protects the right to

send one’s child to any private school, not just a

religious one. 268 U.S. at 532–35. That’s why Yoder

acknowledged that Pierce relied on “nothing more

than the general interest of the parent in the nurture

and education of his children,” 406 U.S. at 233, not a

parent’s specific interest in nurturing a child’s religious education.

15

By relying on parental-rights precedents and

their progeny, Mahmoud underscores that parents’

constitutional right to direct the upbringing and education of their children remains fundamental regardless of whether parents have a religious, moral,

scientific, or other reason for that direction.

If Mahmoud left any doubt, enter Mirabelli,

which solidified Mahmoud’s parental-right-protective

principles and, in doing so, relied on additional

longstanding precedent. For example, even before

turning to the parental-right analysis, this Court

relied on Troxel to hold that, under Mahmoud, California’s policy would likely fail strict scrutiny.

Mirabelli, 607 U.S. at 496–97 (citing Troxel, 530 U.S.

at 68–69 (plurality)). It then made the implicit

explicit, relying on many centuries-old precedents to

protect both religious and nonreligious parents alike.

Id. at 497.

This Court should take this case and clarify that

longstanding precedent demands that conditioning a

government benefit on accepting limits on a constitutional right penalizes that right. And that penalty

violates the Constitution when it interferes with

parents’ right to “direct the upbringing and education

of their children” just as much as when it interferes

with parents’ right to “direct the religious upbringing

of their children.” Compare Mirabelli, 607 U.S. at 497,

with Mahmoud, 606 U.S. at 543 (emphasis added)

(quoting Yoder, 406 U.S. at 233).

16

III. This case illustrates why all parents—not

just religious ones—have the right to direct

their children’s education and upbringing.

Logic and common sense dictate that parents’

right to direct their children’s upbringing and education belongs to all parents, not just religious ones.

This case is illustrative.

A. Massachusetts’ special-education limits

pressure religious and nonreligious parents alike into public school.

Here, Massachusetts guarantees all children

special-education services but then refuses to provide

them at private schools if the parents (but not the

state) voluntarily placed their children in private

school. That makes the services difficult for any

private-school student to access. It also requires

parents to forfeit constitutionally protected privateschool instruction that occurs while they transport

their children to the services. If it is a service that

could be provided in a child’s general-instruction

classroom, parents surrender more instruction while

their children participate in the off-campus services.

The more severe the disability, the more difficult it is

to access the services, and the more private-school

instruction parents must surrender.

For a child who needs services throughout the

school day, such as a deaf student who needs an ASL

interpreter or a child with dysgraphia who needs a

notetaker, public school becomes the only option.

Parents are then put to a choice. One, they can send

their child to public school where they can receive the

necessary special-education services. Two, they can

exercise their right to private school and pay for

17

private special-education services on top of privateschool tuition and taxes financing the public schools.

Of course, private education is “prohibitively

expensive” for “many parents” even before the additional cost of special-education services. Mahmoud,

606 U.S. at 561–62; accord Philip A. Hamburger,

Education Is Speech: Parental Free Speech in

Education, 101 Tex. L. Rev. 415, 429 (2022) (“[T]he

combination of mandatory education and subsidized

state education gives any but the most affluent

parents little choice but to place their children in

government educational institutions.”).

Especially for children with severe disabilities,

only the wealthiest families could afford both private

special-education services and private-school tuition.

For many parents, the Massachusetts structure

leaves just one choice: forgo special-education services

or send their children to public school. And again,

depending on the severity of the disability, forgoing

special-education services may not be an option.

This is not a hypothetical fear. In Loffman v.

California Department of Education, 119 F.4th 1147

(9th Cir. 2024), two families had to enroll their

children in public schools because they could not

afford private-school tuition and private specialeducation services. Id. at 1153. In that same case,

another family kept its child in private school but had

to discontinue the child’s speech therapy due to

financial constraints. Ibid.

Similarly, in Peter v. Wedl, 155 F.3d 992 (8th Cir.

1998), the parents could afford their son’s private

school tuition. But “they could not afford the cost of a

paraprofessional,” which was an additional $20,500 a

year (adjusted for inflation). Peter, 155 F.3d at 994.

18

They were “forced to transfer” him to a public school

when the school district refused to pay for a paraprofessional at his private school. Ibid.

Though the legal issues in those cases vary, they

illustrate that parents face real pressure to enroll

their children in public school when it is the only place

where their children can receive essential specialeducation services. That pressure crushes religious

and nonreligious parents alike. Those parents’ right

to direct their children’s upbringing and education

“would be an empty promise” if those unattainable

alternatives could foreclose its exercise. See

Mahmoud, 606 U.S. at 547.

B. The First Circuit’s reasoning provides

only religious parents relief.

Under the First Circuit’s view, only religious

parents can escape the pressure and send their children in need of special-education services to private

school. The First Circuit accepted that private-school

students were being “denied the otherwise ‘equally

available benefit’ of being educated with other

children who are not disabled.” Hellman, 171 F.4th at

83. The First Circuit then dismissed Petitioners’

argument that they could not be denied that benefit

based on the exercise of their fundamental parental

right. In its view, the Trinity Lutheran trilogy

“ar[o]se[] under the Free Exercise Clause” and had

“no bearing on their parental rights claim.” Ibid.

The First Circuit also rejected petitioners’ reliance on Loffman because that case, too, involved a

free-exercise claim. Id. at 84 n.12. There, the Ninth

Circuit held that forcing parents to “choose between”

otherwise available “special education benefits” and

19

“education in” a private religious school “alleged a

cognizable burden on the[ ] free exercise of religion.”

Loffman, 119 F.4th at 1168 (citing Espinoza, 591 U.S.

at 486; Lyng, 485 U.S. at 450). In short,

Massachusetts could not condition special-education

benefits on forfeiting free exercise, but the First

Circuit refused to “apply free exercise reasoning to the

parental right[s] context.” Hellman, 171 F.4th at 84.

The First Circuit thus implies that religious

parents could bring a free-exercise claim alleging that

the Massachusetts regulation conditioned a benefit on

their forfeiting the right to direct their child's religious upbringing. See Mahmoud, 606 U.S. at 543,

547–48. The First Amendment would “prohibit[ ] the

state from imposing” that “penalt[y] on religious

exercise.” Hellman, 171 F.4th at 83–84 (emphasis

added) (citing Carson, 596 U.S. at 778; Trinity

Lutheran, 582 U.S. at 463; Espinoza, 591 U.S. at 478,

484). But nonreligious parents like Petitioners, who

seeks to vindicate their right to direct the upbringing

and education of their child, would receive no relief.

That cannot be right.

The regulation’s application to “all private

schools, secular and religious alike,” id. at 83

(emphasis omitted), does not change the free-exercise

analysis here. Even if Massachusetts’ regulation does

not target religion, 2 it burdens parents’ “right ‘to

direct the religious upbringing of their children.’”

Mahmoud, 606 U.S. at 543 (quoting Yoder, 406 U.S.

That is an open question. See Espinoza, 591 U.S. at 482

(discussing “checkered tradition” of no-aid amendments—like

the one here—that were “born of bigotry” and “hostility ... to

Catholics”) (citation omitted); id. at 497–507 (Alito, J.,

concurring) (same).

2

20

at 233). That is “a burden of the same character as

that in Yoder.” Id. at 565. It thus does not matter

“whether the law is neutral or generally applicable.”

Ibid. Mahmoud’s analysis would apply.

In fact, Justice Sotomayor—who rejected the

“same character” as Yoder test—seems to agree that

Smith’s neutral-and-generally-applicable inquiry

should be “set aside” if religious parents brought a

free-exercise claim here. Id. at 626 (Sotomayor, J.,

dissenting) (citing Emp. Div., Dep’t of Hum. Res. of

Or. v. Smith, 494 U.S. 872, 878–79, 882 (1990)). In

dissent, she explained that Smith’s inquiry did not

apply when “parents relied on both their substantive

due process rights to ‘direct the education of their

children’ and the Free Exercise Clause.” Ibid.

(emphasis added). Religious parents here could do

exactly that.

Religious parents, then, could receive judicial

relief from the pressure to forfeit guaranteed special

education services or send their children to public

school. But nonreligious parents would still be put to

that choice. This Court forbids such differential

treatment based on whether parents are religious.

C. This Court protects parents’ right to

direct their children’s upbringing

whether or not religious.

The First Circuit’s refused to “apply free exercise

reasoning to the parental right context.” Hellman,

171 F.4th at 84. It would thus treat nonreligious

parents as inferior rights-holders. That result

contradicts this Court’s dictates. As explained, the

right to direct the religious upbringing of one’s

children evolved from cases protecting the “general

21

interest of the parent in the nurture and education of

his children.” Yoder, 406 U.S. at 233; see Section II.B.

Parents’ right to direct the “upbringing of their

children” is now “beyond debate as an enduring

American tradition.” Yoder, 406 U.S. at 232.

Even before this Court held that the Free Exercise

Clause applied to the states (Cantwell v. Connecticut,

310 U.S. 296, 303 (1940)), the Court vindicated parents’ fundamental liberty to direct their children’s

upbringing and education against oppressive state

laws. For instance, in Meyer, this Court held that the

Fourteenth Amendment “[w]ithout doubt” protected

parents’ right to “establish a home and bring up

children.” 262 U.S. at 399 (collecting cases). The state

thus could not prohibit parents from hiring a tutor to

teach their children German. Doing so would violate

a parent’s “fundamental rights” by “interfer[ing]

with” “the power of parents to control the education of

their own.” Id. at 401.

Just two years later, this Court again relied on

the Fourteenth Amendment’s fundamental liberty

guarantees to hold Oregon’s Compulsory Education

Act unconstitutional because it “interfere[d] with the

liberty of parents and guardians to direct the upbringing and education of children under their control.”

Pierce, 268 U.S. at 530–36. The Court recognized that

parents “nurture” and “direct [their child’s] destiny”

and so “have the right, coupled with the high duty, to

recognize and prepare him for additional obligations.”

Id. at 535.

Importantly, Pierce involved both the right of

parents to send their children to a religious private

school and a secular military school. Id. at 531–33.

But this Court did not differentiate between those two

22

schools when assessing the parents’ right to send

their children to them. In other words, this Court

recognized the absurdity of protecting religious

parents’ educational choices but ignoring nonreligious

parents’ educational choices. The First Circuit did

not.

Later cases repeatedly upheld the fundamental

nature and historical pedigree of the parental right.

For instance, Washington v. Glucksberg, 521 U.S. 702

(1997), defined a fundamental right as one “deeply

rooted in this Nation’s history and tradition.” Id. at

721 (quoting Moore v. City of E. Cleveland, 431 U.S.

494, 503 (1977)). It then listed the right to “direct the

education and upbringing of one’s children” as one of

the “fundamental rights and liberty interests” our

Constitution protects. Id. at 720.

Three years later, this Court reaffirmed that

parents have a “fundamental liberty interest[ ]” in the

“care, custody, and control of their children,” calling it

“the oldest of the fundamental liberty interests

recognized.” Troxel, 530 U.S. at 65 (plurality); see id.

at 80 (Thomas, J., concurring in the judgment)

(agreeing with “plurality that [the] Court’s recognition of a fundamental right of parents to direct the

upbringing of their children resolves this case”). Four

years ago, this Court included “the right to make

decisions about the education of one’s children”

among unenumerated rights that were “deeply rooted

in history.” Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 256–57 (2022) (citing Pierce and Meyer,

among other cases).

And this past Term, in three separate opinions,

every Justice agreed that parents have a fundamental

right—“[u]nder long-established precedent”—“with

23

respect to ‘the upbringing and education of children.’”

Mirabelli, 607 U.S. at 497 (quoting Pierce, 268 U.S. at

534–35); see also id. at 499 (Barrett, J., concurring)

(“[T]he doctrine of substantive due process has long

embraced a parent’s right to raise her child.”

(citations omitted)); id. at 507 (Kagan, J., dissenting)

(“I have no doubt that parents have rights, even

though unenumerated, concerning their children and

the life choices they make.” (citations omitted)).

That deeply rooted parental right protects more

than just decisions about a child’s religious

upbringing. Instead, it “must be read to include the

inculcation of moral standards, religious beliefs, and

elements of good citizenship.” Yoder, 406 U.S. at 233.

Beyond religion, it has been applied to protect

parents’ right to make decisions about their children’s

medical care, Parham, 442 U.S. at 602; Mirabelli, 607

U.S. at 497; their children’s education, Meyer, 262

U.S. at 400; Pierce, 268 U.S. at 534–35; and their

children’s interactions with relatives, Troxel, 530 U.S.

at 65–66 (plurality). In short, the fundamental

parental right is well established and applies to all

parents, not just religious ones.

To now say that the Constitution protects parents’

right to direct only the religious upbringing and

education of their children defies history, logic, and

common sense—both in the special-education context

and elsewhere. The First Circuit’s contrary conclusion

is wrong and should be reversed.

24

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DAVID A. CORTMAN

KATHERINE L. ANDERSON

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

JAMES A. CAMPBELL

KELSEY C. CATINA

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

AUGUST 2026

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@adflegal.org