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 a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

______________________

BRIEF OF COUNCIL FOR AMERICAN

PRIVATE EDUCATION AND AGUDATH

ISRAEL OF AMERICA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

____________________

TIMOTHY S. DURST

Counsel of Record

FRANCES MACKAY

O’MELVENY & MYERS LLP

2801 N. Harwood Street,

Suite 1600

Dallas, TX 75201

(972) 360-1923

tdurst@omm.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................. 1

SUMMARY OF THE ARGUMENT .......................... 5

ARGUMENT ............................................................. 9

I.

This Case Presents the Next

Constitutional Question In The Conflict

Between State Anti-Aid Restrictions

and Educational Choice ................................. 9

II.

Massachusetts’s Public/Private AntiAid Provision Grew Out Of The Same

Anti-Catholic Animus As Conventional

Blaine Amendments ..................................... 14

III.

The Decision Below Treats The Pierce

Right As Fundamental Only In Name

And Not In Constitutional Effect................. 20

CONCLUSION ........................................................ 25

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Asociación de Educación Privada de

Puerto Rico, Inc. v. García-Padilla,

490 F.3d 1 (1st Cir. 2007) ......................... 8, 23, 24

Bd. of Educ. v. Assessor of Worcester,

368 Mass. 511 (1975) .......................................... 21

Bloom v. Sch. Comm. of Springfield,

376 Mass. 35 (1978) ............................................ 17

Brown v. Hot, Sexy & Safer Prods., Inc.,

68 F.3d 525 (1st Cir. 1995) ............................. 8, 24

Caplan v. Town of Acton,

479 Mass. 69 (2018) ................................ 14, 15, 17

Carson v. Makin,

596 U.S. 767 (2022) ..................................... 5, 6, 12

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ............................................. 20

Emp. Div. v. Smith,

494 U.S. 872 (1990) ............................................. 25

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020) ............................. 5-6, 9, 12-13

Griswold v. Connecticut,

381 U.S. 479 (1965) ............................................. 24

Mahmoud v. Taylor,

606 U.S. 522 (2025) ............................................. 23

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Meyer v. Nebraska,

262 U.S. 390 (1923) ............................................. 11

Mitchell v. Helms,

530 U.S. 793 (2000) ....................................... 10, 13

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ......................................... 2, 11

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

582 U.S. 449 (2017) ............................................... 5

Wisconsin v. Yoder,

406 U.S. 205 (1972) ....................................... 24, 25

Constitutional Provisions

Mass. Const. amend. art. XVIII (1855) ................... 14

Mass. Const. art. XVIII, as amended by

art. XLVI ............................................................. 19

Statutes

St. 1972, c. 766, § 1................................................... 21

Other Authorities

1 Debates in the Massachusetts Constitutional

Convention 1917-1918 (1919) ................. 17, 18, 19

1 Debates in the Massachusetts Constitutional

Convention of 1853 (1853) .................................. 16

Cornelius Chapman, The Know-Nothing

Amendments: Barriers to School Choice in

Massachusetts (Pioneer Institute 2009) ............. 15

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Kyle Duncan, Secularism’s Laws: State Blaine

Amendments and Religious Persecution, 72

Fordham L. Rev. 493 (2003) ........................... 9, 15

Michael Bindas, The Once and Future

Promise of Religious Schools for

Poor and Minority Students, 132

Yale L.J.F. 529 (2022) ................................... 10, 12

Philip Hamburger, Separation of

Church and State 216 (2002).............................. 15

Richard F. Duncan, Why School Choice

Is Necessary for Religious Liberty

and Freedom of Belief, 73 Case W.

Res. L. Rev. 1055 (2023) ..................................... 11

Stephen L. Carter, Parents, Religion,

and Schools: Reflections on Pierce,

70 Years Later, 27 Seton Hall L.

Rev. 1194 (1997) ................................................. 10

U.S. Dep’t of Educ., Nat’l Ctr. for Educ.

Statistics, Characteristics of Private

Schools in the United States: Results

From the 2023–24 Private School

Universe Survey (2026) ................................... 1, 20

INTEREST OF AMICI CURIAE1

The Council for American Private Education

(“CAPE”) is a national coalition of organizations and

state affiliates serving private elementary and secondary schools. Its member organizations represent

approximately 70 percent of private-school enrollment nationwide. The community CAPE represents

is both substantial and diverse. According to the U.S.

Department of Education’s most recent Private

School Universe Survey, close to five million students

attend roughly 30,000 private elementary and secondary schools in the United States—nearly one in

ten American schoolchildren and roughly one in four

of the Nation’s schools. U.S. Dep’t of Educ., Nat’l Ctr.

for Educ. Statistics, Characteristics of Private Schools

in the United States: Results From the 2023–24 Private School Universe Survey 2 (2026) [hereinafter

Characteristics of Private Schools]. That numerical

breadth encompasses significant institutional diversity. CAPE brings together organizations representing Catholic, Orthodox Jewish, Islamic, Quaker, Episcopal, Lutheran, Seventh-day Adventist, and other

religious groups, as well as schools organized around

distinctive educational philosophies—from Waldorf

pedagogy to specialized, experiential, and other nontraditional models. While those organizations differ

1 Pursuant

to Supreme Court Rule 37.6, amici state that no

counsel for any party authored this brief in whole or in part and

no entity or person, aside from amici, their members, or their

counsel, made any monetary contribution intended to fund its

preparation or submission. Counsel for all parties were timely

notified under Rule 37.2 of amici’s intent to file this brief.

2

substantially in theology, pedagogy, institutional mission and approach, CAPE nevertheless brings them

together around shared commitments to opportunity,

choice, pluralism and excellence in education.

Founded in 1971 to provide a coherent voice for

private education, CAPE seeks to “preserve and promote educational pluralism so that parents have a

choice in the schooling of their children.” That commitment extends beyond protecting individual parental choice. CAPE regards a diverse educational landscape as a public good and works to foster communication and cooperation both within the private-school

community and with the public sector to improve educational opportunities for all of the Nation’s children.

CAPE’s commitment to educational pluralism reflects the constitutional principle recognized in Pierce

v. Society of Sisters. There, this Court rejected the

State’s asserted power to “standardize its children” by

requiring them to accept instruction from public

teachers alone. 268 U.S. 510, 535 (1925). The freedom protected by Pierce allows families and communities to sustain genuinely different educational institutions—institutions through which they may transmit distinct beliefs, values, traditions, and approaches to education rather than conform to a single

state-preferred model.

This case directly implicates that interest. Massachusetts has chosen to extend special-education entitlements to all eligible children regardless of public or

private school attendance. The decision below nevertheless permits the State to impose materially more

burdensome conditions on those entitlements when

parents exercise their constitutional right to choose

3

private education. And because the First Circuit subjected that burden only to rational-basis review, the

decision below leaves the fundamental liberty recognized in Pierce with little practical protection against

governmental measures that make its exercise more

difficult.

That result matters profoundly to CAPE and the

diverse institutions it represents. CAPE’s members

do not speak with one voice on questions of faith, pedagogy, or educational mission—and that is precisely

the point. Their differences exemplify the pluralism

Pierce protects. But such institutional diversity depends on there being meaningful protections for the

parental choices that sustain it. The petition should

therefore be granted to ensure that Pierce remains a

meaningful guarantee of fundamental parental liberty, rather than a right whose exercise may be burdened subject only to the most deferential form of judicial review.

***

Agudath Israel of America, founded in 1922, is a

national grassroots Orthodox Jewish organization.

Among its many functions, Agudath Israel represents

and advances the interests of the Orthodox Jewish

community on legal issues affecting religious liberty,

education, and the rights of religious institutions.

Agudath Israel regularly participates in legislative,

administrative, and judicial proceedings—including

as amicus curiae—to protect those interests.

Jewish education is of particular importance to

Agudath Israel and its constituents. Orthodox Jews

regard the religious education of their children as

4

both a religious obligation and an essential means of

preserving Jewish faith and identity. The overwhelming majority of Agudath Israel’s constituents

accordingly send their children to Orthodox Jewish

day schools, of which there are approximately 750 nationwide educating more than 250,000 students. For

those families, choosing a Jewish day school is not

simply a preference among educational providers; it

is an exercise of deeply held religious conviction protected by the constitutional liberty of parents to direct

the education and upbringing of their children.

This case therefore directly implicates Agudath Israel’s interests. Massachusetts has chosen to extend

special-education entitlements to eligible children attending both public and private schools. Yet, as Petitioners allege, the Commonwealth administers those

entitlements on materially different terms when parents exercise their constitutional right to enroll their

children in private schools—including religious

schools like the Jewish day schools attended by Petitioners’ children. The question whether government

may burden receipt of an otherwise available educational entitlement because parents have chosen private religious education is of substantial importance

to Agudath Israel and the families it represents.

Agudath Israel’s interest also extends beyond the

particular Massachusetts program at issue. State

constitutional restrictions on aid to private and religious institutions have long been invoked to limit

public benefits and services available to children attending nonpublic schools. This Court’s decisions in

Trinity Lutheran Church of Columbia, Inc. v. Comer,

5

582 U.S. 449 (2017), Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), and Carson v.

Makin, 596 U.S. 767 (2022), have substantially limited the use of such provisions to discriminate against

religious schools and their students. Hellman presents an important related question: whether a State

may invoke a broader public/private distinction to impose materially less favorable conditions on an educational entitlement because parents exercised their

fundamental right to choose private education.

The decision below threatens to diminish the constitutional protection afforded that choice. The freedom to select a religious school is of little practical security if government may make the exercise of that

freedom the basis for burdening entitlements that the

State has already chosen to extend to the child. That

concern is especially acute for Orthodox Jewish families, for whom religious schooling lies at the center of

family and religious life, and warrants this Court’s review.

SUMMARY OF THE ARGUMENT

For families who choose private education, this

Court’s decisions in Espinoza v. Montana Department

of Revenue, 591 U.S. 464 (2020), and Carson v. Makin,

596 U.S. 767 (2022), removed significant barriers to

participation in state educational-benefit programs.

Espinoza directly concerned a state constitutional

“no-aid” provision—commonly known as a Blaine

Amendment 2 —that prohibited public aid to schools

2 “Blaine

Amendments” take their name from Congressman

James Blaine, who in 1875 proposed a federal constitutional

6

controlled by any “church, sect, or denomination.”

591 U.S. at 470. Carson involved a related statutory

restriction: Maine made tuition assistance available

for attendance at private schools but limited the program to “nonsectarian” schools. 596 U.S. at 774-75.

In both cases, this Court held that a State could not

make otherwise available educational benefits turn

on a family’s decision to choose religious education.

But while Espinoza and Carson resolved the constitutional problem presented by restrictions directed at

sectarian or religious schooling, they did not address

state constitutional provisions that go further, by prohibiting aid to private education more broadly,

whether religious or secular.

This case presents that next question. In its current form, Massachusetts’s anti-aid provision draws a

facially neutral line between public and private institutions. But that neutrality obscures its origins. The

provision began as a restriction aimed at preventing

Catholic schools from sharing in public support during a period of intense anti-Catholic nativism. When

Massachusetts later amended that provision, it resolved the inequality not by making Catholic institutions equally eligible for public support, but by eliminating support for private institutions across the

board. The result was equality through exclusion.

What began as a barrier principally directed at Catholic education thus became a broader restriction on

amendment barring public-school funds from schools under sectarian control. See, e.g., Espinoza, 591 U.S. at 498-99 (Alito, J.,

concurring). Although the federal proposal failed, similar “noaid” provisions were adopted in numerous state constitutions.

Id.

7

private education more generally. That history, together with the fact that the burdens imposed by the

provision continue to fall predominantly on religious

educational choice, warrants careful scrutiny.

Application of the anti-aid provision here raises an

additional and distinct constitutional concern. Massachusetts was not required to extend individual special-education entitlements to children attending private schools, but the Legislature chose to do so, creating a system designed to provide such opportunities

to all eligible children. Yet the anti-aid provision operates to diminish that entitlement when parents exercise their constitutional right under Pierce to choose

private education. As detailed in the petition, the

Place Restriction prevents parentally placed privateschool students from receiving state or locally funded

special-education services on site, at their own

schools, burdening access to those services through

lost instructional time, schedule disruption, transportation costs, and the stigma associated with having to

leave one’s classroom to obtain special services. The

First Circuit acknowledged that burden but held it

constitutionally irrelevant, reasoning that protection

against “indirect coercion or penalties” is a “distinct,

First Amendment principle” that does not apply to the

parental right. Pet. App. 25a (quotations omitted). In

doing so, the decision below treats Pierce as fundamental in name, but second-class in constitutional effect.

That diminished protection is particularly troubling because Pierce safeguards more than isolated

parental preferences. It safeguards educational pluralism by preserving a meaningful role for families,

8

religious communities, and private institutions alongside the State in the education and development of the

Nation’s children. That pluralism limits the ability of

political majorities to use public institutions to impose a single religious, moral, cultural, or ideological

vision on the next generation, while allowing minority

communities to preserve and transmit their own traditions and convictions.

The Pierce right is also deeply intertwined with

First Amendment freedoms. Although Pierce was decided before the Free Speech and Free Exercise

Clauses had been incorporated against the States,

this Court has since recognized that parental educational choice implicates interests at the core of the

First Amendment—including religious exercise, the

transmission and receipt of ideas, and association

with institutions formed to inculcate particular values. Indeed, the First Circuit itself has recognized

that “Pierce would probably be decided today on First

Amendment grounds.” Asociación de Educación

Privada de Puerto Rico, Inc. v. García-Padilla, 490

F.3d 1, 10 n.5 (1st Cir. 2007) (citing Brown v. Hot,

Sexy & Safer Prods., Inc., 68 F.3d 525, 533 n.5 (1st

Cir. 1995)). And this Court’s decisions in Yoder and

Smith confirm that when parental liberty and First

Amendment freedoms intersect, the Constitution affords greater protection, not less.

The First Circuit’s treatment of the Pierce right

therefore warrants this Court’s scrutiny. The decision below subjects burdens on the Pierce right—one

of this Court’s oldest fundamental liberties, and one

that is deeply intertwined with First Amendment

freedoms and central to educational pluralism—to

9

mere rational-basis review. That diminished protection is especially troubling where the burden is justified by a state anti-aid provision with a history that

itself warrants careful scrutiny. Certiorari should

therefore be granted both to scrutinize the continued

operation of Massachusetts’s anti-aid provision and to

ensure that the Pierce right receives constitutional

protection commensurate with the parental liberty

and First Amendment freedoms it safeguards.

ARGUMENT

I.

THIS CASE PRESENTS THE NEXT CONSTITUTIONAL QUESTION IN THE CONFLICT BETWEEN STATE ANTI-AID RESTRICTIONS AND EDUCATIONAL

CHOICE

The constitutions of more than 30 States contain

so-called Blaine Amendments—state anti-aid provisions that, in their most common form, prohibit public

support for “sectarian” schools. See, e.g., Espinoza,

591 U.S. at 499 (Alito, J., concurring). Those provisions grew out of a nineteenth-century political climate marked by nativism and hostility toward Catholic immigrants. At the time, a large influx of Irish

and German immigrants had significantly increased

the Nation’s Catholic population, provoking fears

among native-born Protestants that Catholicism

would undermine the religious and cultural norms

they associated with American identity. See, e.g.,

Kyle Duncan, Secularism’s Laws: State Blaine

Amendments and Religious Persecution, 72 Fordham

L. Rev. 493, 504 (2003) [hereinafter Duncan]. Those

10

concerns soon crystallized into organized political opposition—the American Party, or Know-Nothings,

rose to prominence in the 1850s on a nativist and antiCatholic platform aimed specifically at curbing the

political influence of Catholics and other immigrants.

See Michael Bindas, The Once and Future Promise of

Religious Schools for Poor and Minority Students, 132

Yale L.J.F. 529, 539 (2022) [hereinafter Bindas]. In

the school-funding context, the distinction between

“sectarian” and “nonsectarian” education largely

tracked the divide between Catholic and non-Catholic

schools; “it was an open secret that ‘sectarian’ was

code for ‘Catholic.’” Mitchell v. Helms, 530 U.S. 793,

828 (2000).

Public education was viewed by the nativists as a

primary means for countering the threat posed by

Catholic and other European immigrants. The common school could do what immigration restrictions

and political exclusions could not: shape children

themselves by instilling a common language, civic

identity, and set of cultural and religious norms. Professor Stephen Carter has thus observed that the

common-school movement “simply cannot be understood except as an effort to Protestantize the immigrant children.” Stephen L. Carter, Parents, Religion,

and Schools: Reflections on Pierce, 70 Years Later, 27

Seton Hall L. Rev. 1194, 1199 (1997). Catholic and

other private schools frustrated that objective by enabling immigrant families to preserve distinct religious, linguistic, and cultural traditions. Anti-aid restrictions therefore served as one tool for privileging

the common-school system over those competing institutions.

11

The broader assimilationist project, however, did

not stop at funding. By the early twentieth century,

some States sought more directly to control both what

children learned and where they learned it. Nebraska, for instance, barred the teaching of foreign

languages to young children in an effort to prevent instruction in “foreign tongues and ideals” before they

could “learn English and acquire American ideals.”

Meyer v. Nebraska, 262 U.S. 390, 401 (1923). And Oregon went further, mandating attendance at public

schools. See Pierce v. Society of Sisters, 268 U.S. 510

(1925). That measure was strongly supported by the

Ku Klux Klan, which had made opposition to Catholic

institutions a central part of its political program in

Oregon and viewed compulsory public schooling as a

means of curbing Catholic parochial education. See

Richard F. Duncan, Why School Choice Is Necessary

for Religious Liberty and Freedom of Belief, 73 Case

W. Res. L. Rev. 1055, 1064 n.42 (2023). Ultimately,

this Court invalidated both efforts, rejecting the use

of state power to impose educational conformity at the

expense of parental liberty. As Pierce explained,

“[t]he fundamental theory of liberty” forecloses “any

general power of the state to standardize its children

by forcing them to accept instruction from public

teachers only.” 268 U.S. at 535. “The child is not the

mere creature of the state”; parents retain the right

and duty to direct their children’s upbringing and education. Id.

State anti-aid provisions proved more enduring.

Unlike the laws invalidated by Meyer, Pierce, and others, laws prohibiting aid to religious schools did not

directly compel public-school attendance or regulate

12

what children could be taught. Parents remained legally free to choose a private or religious education;

States generally refused to extend public support to

that choice.

Over time, however, the constitutional stakes

changed. Modern school-choice programs made scholarships, tuition assistance, and similar benefits available for private education, but conventional anti-aid

provisions were invoked to withhold those benefits

when families selected religious schools. See, e.g.,

Bindas, supra, at 547-48. The resulting tension between educational-choice programs and state anti-aid

provisions reached this Court in Espinoza and Carson. In Espinoza, the Court held that although a

State “need not subsidize private education,” once it

chooses to do so, it may not disqualify schools from

participation solely because of their religious status.

591 U.S. at 487. Carson then rejected the related distinction between religious status and religious use,

holding that a State likewise may not exclude schools

because they would use the benefit to provide religious instruction. 596 U.S. at 786-89. Together, those

decisions substantially foreclosed the conventional

sectarian/nonsectarian anti-aid provisions as a basis

for denying otherwise generally available educational

benefits.

Neither decision, however, addressed the broader

anti-aid provision at issue here. Massachusetts’s

anti-aid amendment does not merely prohibit public

funding of religious schools; it restricts aid to private

institutions more generally. That facial neutrality,

however, should not obscure its lineage. Massachusetts’s public/private distinction grew out of the same

13

anti-immigrant and anti-Catholic animus that drove

conventional sectarian/nonsectarian anti-aid restrictions. That “shameful pedigree” warrants closer

scrutiny. Espinoza, 591 U.S. at 482 (quoting Mitchell,

530 U.S. at 828-29).

Application of the provision here raises an additional concern about the constitutional status of the

Pierce right itself. Massachusetts has not merely declined to subsidize private education; it has affirmatively extended special-education entitlements to all

eligible schoolchildren, regardless of whether they attend public or private school. Yet the anti-aid amendment is invoked to burden receipt of that entitlement

when parents exercise their constitutional right to

choose private education.

The decision below

acknowledged both the fundamental character of the

Pierce right and the existence of that burden, but nevertheless subjected it merely to rational-basis review.

In practical terms, the court treated Pierce as a second-order fundamental right—one recognized as fundamental, but denied the protections ordinarily associated with that status.

Both aspects of this case warrant scrutiny: the

troubling lineage of the restriction Massachusetts invokes and the diminished constitutional status the

decision below effectively assigns to the right that restriction burdens.

14

II.

MASSACHUSETTS’S PUBLIC/PRIVATE

ANTI-AID PROVISION GREW OUT OF

THE SAME ANTI-CATHOLIC ANIMUS

AS CONVENTIONAL BLAINE AMENDMENTS

Massachusetts’s anti-aid provision appears as Article XVIII of the Amendments to the Massachusetts

Constitution. As ratified in 1855, that provision provided:

All moneys raised by taxation in the towns and

cities for the support of public schools, and all

moneys which may be appropriated by the

state for the support of common schools, shall

be applied to, and expended in, no other schools

than those which are conducted according to

law, under the order and superintendence of

the authorities of the town or city in which the

money is to be expended; and such moneys

shall never be appropriated to any religious

sect for the maintenance exclusively of its own

schools.

Mass. Const. amend. art. XVIII (1855). The significance of that language becomes clear in light of the

political and religious context in which it was

adopted.

Article XVIII arose from the same anti-Catholic

nativism described above. See Caplan v. Town of Acton, 479 Mass. 69, 78-79 (2018). The rapid growth of

Massachusetts’s Irish-Catholic population generated

widespread hostility toward Catholics and fears about

their increasing influence in public life. That hostility

repeatedly manifested itself in public and sometimes

15

violent forms. For instance, in 1834, an anti-Catholic

mob set fire to the Ursuline convent in Charlestown,

Massachusetts, destroying it. See Duncan, supra, at

506 n.48 (citing Philip Hamburger, Separation of

Church and State 216 (2002)). Popular anti-Catholic

traditions persisted as well: in cities and towns

throughout Massachusetts, the annual observance of

“Pope-Night” featured the public parading and burning of an effigy of the Pope. See Cornelius Chapman,

The Know-Nothing Amendments: Barriers to School

Choice in Massachusetts 4 (Pioneer Institute 2009).

And by the early 1850s, rumors were spreading of a

“papal plot” to extend Catholic influence throughout

the Massachusetts government. See Caplan, 479

Mass. at 78.

Those broader anti-Catholic anxieties soon found

expression in disputes over education and public

funding. As the Catholic population grew, so too did

fears that Catholics would acquire political influence

and seek a share of public funds to support their

schools. Those concerns gained political force in 1854,

when the Know-Nothings swept to power in Massachusetts on an anti-immigrant and particularly antiCatholic platform, capturing both the governorship

and the legislature. See, e.g., Caplan, 479 Mass. at

79. Soon after, the Know-Nothing government advanced Article XVIII, and Massachusetts voters ratified the provision in 1855. Id.

The debates surrounding Article XVIII’s passage

confirm the anti-Catholic motivation behind the provision. Delegates feared that Massachusetts’s growing Catholic population might eventually obtain sufficient political power to claim a share of the public

16

funds used to support the Commonwealth’s common

schools. One delegate described the concern directly:

“some new sect may outvote the Protestants, and

claim the school fund.” 1 Debates in the Massachusetts Constitutional Convention of 1853, at 615 (1853)

[hereinafter 1853 Debates]. Another stated that

“[e]very-body knows” the proposal “appears to be

aimed at one class of our citizens, one denomination

of religion.” Id. “[N]obody,” he continued, had expressed concern that public funds might be used for

“Protestant sectarianism”; Article XVIII instead had

been discussed “in relation to the support of Catholic

schools.” Id.

That distinction reflected the character of the common-school system itself. The publicly supported common schools were predominantly Protestant in character, incorporating Protestant Bible reading and

prayer. Defenders of the system openly embraced that

character. One declared, “We teach Protestantism,

and believe it to be right, and we glory in that belief.”

1853 Debates, supra, at 621. Another predicted that

“Catholics will become Protestants through the influence of these schools.” Id. at 622. Article XVIII thus

preserved public funding for “common schools” that

were predominantly Protestant in character, while

principally foreclosing Catholic schools from claiming

a share of those same funds, through its prohibition

on aid to schools maintained by a “religious sect.”

By 1917, the controversy over public support for

religious institutions remained unresolved. Due to

Article XVIII’s “rather uncertain language,” Massachusetts had continued to appropriate substantial

17

sums to private educational and charitable institutions, causing growing public dissatisfaction. See,

e.g., Caplan, 479 Mass. at 79 (quoting Bloom v. Sch.

Comm. of Springfield, 376 Mass. 35, 39 (1978)). At

the same time, Catholic institutions received almost

none of those funds. During the 1917 Constitutional

Convention, delegate Roland Sawyer reported that,

since 1860, approximately $19 million had been appropriated to private institutions, including approximately $10 million to educational institutions. Catholic institutions had received only $49,000 of the total—and “not one cent” of the educational appropriations. See 1 Debates in the Massachusetts Constitutional Convention 1917-1918, at 181-82 (1919) [hereinafter 1917 Debates]. Another delegate emphasized

the resulting disparity: Catholics had “paid their

share of the nineteen million dollars appropriated to

private institutions,” while their own institutions had

“received comparatively nothing.” 1917 Debates, supra, at 92-93.

Nor was equal access to those appropriations a realistic political alternative. Delegate Sawyer observed that the political “temper” of Massachusetts

was such that an appropriation to a sectarian institution would not “get by any Legislature or get by the

Executive Chamber in any Governor’s year.” 1917 Debates, supra, at 182. At the same time, the campaign

for a stronger religion-specific prohibition had gained

new political force. Sawyer traced that resurgence to

the election of Massachusetts’s first Catholic governor

in 1913, which “certain forces in the State” regarded

as “a great menace,” helping to build support for the

anti-sectarian amendment. Id. at 183-84. He placed

18

the movement in the same line as earlier political

movements directed against Catholic citizens, invoking both the Know-Nothings and the American Protective Association—the latter associated, as another

delegate explained, with the view that “a Catholic,

holding allegiance to the Pope, cannot be a good

American citizen.” Id. at 78, 184-85.

Against that backdrop, Catholic representatives

did not principally demand that Massachusetts begin

funding their institutions. They instead demanded

equal treatment. As Martin Lomasney recounted,

their position was: “if you are going to pass any

amendment pass one that applies to all. Why should

our denomination be singled out, when we have not

been receiving this money?” 1917 Debates, supra, at

293. Their governing principle, he explained, was

“equal rights for all, special privileges for none.” Id.

The difficulty was that the religion-specific proposal then under consideration did not appear equal

to them. Delegate Frederick Anderson, one of its leading proponents, later acknowledged that Catholic participants believed the proposed prohibition—which

was directed at institutions under “sectarian or ecclesiastical control”—would exclude “all Catholic schools

and institutions from public aid,” while leaving outside its reach some institutions that were “virtually

but not formally Protestant.” 1917 Debates, supra, at

163-64. They therefore regarded the formulation as

“unfair” and discriminatory. Id.

The public/private distinction emerged simply as

the compromise solution. Under Lomasney’s approach, Anderson explained, “all Catholic and nonCatholic sectarian schools and institutions would be

19

covered by the term private,” and “a prohibition of appropriations to all private institutions would solve the

problem beyond all question.” 1917 Debates, supra, at

164. Anderson ultimately endorsed the resulting proposal as “the very best solution of this whole controversy” because it was a “true compromise.” Id.

And, as was made clear to the Catholic delegates,

the alternative to that compromise was not equal inclusion. Anderson warned the Convention that, if the

broader public/private solution were rejected because

of opposition from private institutions, “it may be necessary to urge upon the people the next best thing, the

old anti-sectarian amendment,” emphasizing that

“tens of thousands of citizens” would not allow the issue to rest. 1917 Debates, supra, at 164-65. In other

words, the Catholic delegates confronted a choice between a broader prohibition applicable to all private

institutions and the continued pursuit of a religionspecific prohibition that they believed would exclude

Catholic institutions while permitting some

Protestant-associated institutions to remain eligible

for public support. Faced with that choice, some delegates chose the former.

The resulting compromise prohibited aid not only

to religious schools, but also to “any other school” or

educational institution that was “not publicly owned

and under the exclusive control, order and superintendence of public officers or public agents.” Mass.

Const. amend. art. XVIII, § 2, as amended by art.

XLVI. See also 1917 Debates, supra, at 172-73 (delegate Anderson expressly explaining that “any other

school” meant the “private, non-sectarian school”).

20

Thus, with equal inclusion politically unlikely and

a religion-specific prohibition still looming, Catholic

participants instead pressed for a rule that would apply to all private institutions alike. The result was

equality through exclusion: Massachusetts broadened

the restriction from religious institutions to all private institutions generally.

At the same time, although Massachusetts’s present-day anti-aid provision no longer distinguishes

expressly on the basis of religion, it continues to bear

most heavily on religious educational choice. Religious schools account for approximately two-thirds of

private schools nationwide and educate more than

three-quarters of all private-school students. See

Characteristics of Private Schools, supra, at tbl. C-2,

at C-3 (reporting 66.7% of private schools and 75.8%

of private-school students as religious). Given both

its anti-Catholic origins and the predominantly religious choices it continues to burden, the provision’s

facial neutrality should not insulate it from this

Court’s scrutiny. See Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (explaining that “[f]acial neutrality is not determinative”

and invalidating ordinances whose formally neutral

operation masked impermissible targeting of religious practice).

III.

THE DECISION BELOW TREATS THE

PIERCE RIGHT AS FUNDAMENTAL

ONLY IN NAME AND NOT IN CONSTITUTIONAL EFFECT

Setting aside its nativist and anti-Catholic origins,

the breadth provided by the facial neutrality of Mas-

21

sachusetts’s modern anti-aid provision makes its application here more constitutionally consequential,

not less. The provision no longer operates only

against the choice of religious schooling. It reaches

private educational choice more generally, thus implicating the full scope of the parental liberty recognized

in Pierce.

Massachusetts was not required to extend specialeducation benefits to children attending private

schools, but the Legislature nevertheless chose to do

so. Seeking to remedy past inequities, it created “a

flexible and uniform system of special education program opportunities for all children requiring special

education,” including children enrolled in private

schools. See, e.g., Bd. of Educ. v. Assessor of Worcester, 368 Mass. 511, 514 (1975) (quoting St. 1972, c.

766, § 1). But, as detailed in the Petition, the anti-aid

provision undercuts that legislative judgment by requiring the Place Restriction, which prevents children

voluntarily attending private schools from receiving

state or locally funded services on school grounds.

The result is to diminish the value of the Legislature’s

generally available entitlement for children whose

parents exercise their Pierce right, burdening access

to special education services with disruption, lost instructional time, transportation costs, and stigma.

The First Circuit below recognized the burden that

the Place Restriction imposes on parents who exercise

their Pierce right, but deemed that burden constitutionally irrelevant. In the court’s view, the unconstitutional conditions doctrine is a “distinct, First

Amendment principle” that “does not apply to the parental right.” Pet. App. 25a (quotations omitted). The

22

decision below thus treats the Pierce right as fundamental in name, but second-class in constitutional effect.

That result is especially troubling because the

Pierce right safeguards more than parental choice

alone. It protects educational pluralism itself—an essential feature of a free society. By preserving both

the existence of independent schools and parents’

ability to choose them, Pierce ensures that the education and formation of children are not placed exclusively in the hands of the political majority. Otherwise, those who control public institutions could use

that authority to entrench their own religious, moral,

cultural, or ideological preferences in the next generation. Independent schools provide a counterweight

to that power, allowing minority communities to

transmit their traditions and convictions even when

those beliefs are unpopular, disfavored, or rejected by

those who hold political power.

That protection matters because education is not

simply the transmission of neutral information.

Schools inevitably shape children’s values, habits,

identities, and understandings of citizenship. A system in which the political majority can effectively

channel children into institutions it controls therefore

creates a uniquely powerful mechanism for majoritarian conformity. Educational pluralism checks that

danger by dispersing authority over the formation of

children among families, religious communities, private institutions, and the State. In that sense, Pierce

protects more than a parent’s ability to select a school;

it protects the institutional diversity that allows minority beliefs to endure, competing ideas to flourish,

23

and a genuinely pluralistic society to reproduce itself

across generations.

Nor can the diminished protection provided by the

First Circuit below to the Pierce right be squared with

the constitutional interests that right protects. Pierce

was decided at the dawn of incorporation, before this

Court had recognized either the Free Speech or Free

Exercise Clauses as applicable to the States through

the Fourteenth Amendment. See, e.g., Mahmoud v.

Taylor, 606 U.S. 522, 586 n.4 (2025) (Thomas, J., concurring) (“The Court decided Pierce 15 years before it

recognized that the First Amendment’s free-exercise

guarantee applies against the States.”); Asociación,

490 F.3d at 10 n.5 (“Although Meyer, Pierce, and Tokushige were decided on due process grounds … each

was decided in the 1920s, before the Bill of Rights was

incorporated into the Fourteenth Amendment.”). But

the liberty interests Pierce protects includes conduct

at the core of the First Amendment—choosing a

school determines who will teach a child, what ideas

and values will be communicated, the religious or

moral tradition that will shape the child’s development, and the educational community with which the

family will associate. Thus, Pierce’s substantive-dueprocess framing should not obscure the First Amendment freedoms that are deeply intertwined with the

parental liberty it protects. Indeed, this Court has repeatedly described Pierce in terms of its First Amendment overlap. For instance, in Griswold v. Connecticut, the Court identified “[t]he right to educate a child

in a school of the parents’ choice” as among the rights

protected by the First Amendment, explaining that,

“[b]y Pierce v. Society of Sisters, [] the right to educate

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one’s children as one chooses is made applicable to the

States by the force of the First and Fourteenth

Amendments.” 381 U.S. 479, 482-83 (1965) (further

explaining that Pierce and Meyer stand for the proposition that “the State may not, consistently with the

spirit of the First Amendment, contract the spectrum

of available knowledge”). And, in Wisconsin v. Yoder,

the Court linked the Pierce right to the Free Exercise

Clause, stating that “the Court’s holding in Pierce

stands as a charter of the rights of parents to direct

the religious upbringing of their children.” 406 U.S.

205, 233 (1972).

Remarkably, the First Circuit’s own precedent undercuts the very distinction on which the decision below rests. The court refused to apply the unconstitutional-conditions doctrine to the burden imposed on

Petitioners’ exercise of their Pierce right because it

characterized protection against “indirect coercion or

penalties” as a “distinct, First Amendment principle.”

Yet the First Circuit has expressly recognized that

Meyer and Pierce “would probably be decided today

on First Amendment grounds.” Asociación, 490 F.3d

at 10 n.5 (citing Brown, 68 F.3d at 533 n.5). The court

thus treats Pierce’s historical doctrinal label as dispositive, even though its own precedent recognizes

that the right Pierce protects would today be understood as a First Amendment right entitled to precisely

the protection the court withheld.

To be sure, not every exercise of parental liberty

has a First Amendment dimension. Decisions about

a child’s meals, bedtime, or ordinary routines may implicate parental authority without implicating religion or expression. But when parental liberty does

25

overlap with First Amendment freedoms, this Court’s

precedents treat that convergence as a basis for

greater constitutional protection, not less. Yoder held

that “when the interests of parenthood are combined

with a free exercise claim,” more than merely a “‘reasonable relation to some purpose within the competency of the State’” is required. 406 U.S. at 233. And

Smith confirmed the significance of that combination.

In holding that neutral, generally applicable laws ordinarily do not violate the Free Exercise Clause

merely because they burden religiously motivated

conduct, Smith distinguished Yoder on the ground

that Yoder did not involve Free Exercise alone. Rather, it involved the Free Exercise Clause “in conjunction with other constitutional protections,” including

“the right of parents, acknowledged in Pierce[,] to direct the education of their children.” Emp. Div. v.

Smith, 494 U.S. 872, 881 (1990). Thus, Smith treated

the overlap between Free Exercise and the Pierce

right as the very reason Yoder warranted protection

beyond that afforded to a free-exercise claim standing

alone.

CONCLUSION

The petition should be granted. The state constitutional provision invoked below carries a history

that warrants scrutiny, and its application here burdens a fundamental right whose exercise is closely intertwined with First Amendment freedoms. Yet the

First Circuit treated that burden as subject only to rational-basis review. Review is warranted to determine whether a State may rely on such a provision to

impose substantial indirect burdens on the Pierce

right while withholding the constitutional protections

26

ordinarily afforded to fundamental liberties.

Respectfully submitted,

August 20, 2026

TIMOTHY S. DURST

Counsel of Record

FRANCES MACKAY

O’MELVENY & MYERS LLP

2801 N. Harwood Street,

Suite 1600

Dallas, TX 75201

(972) 360-1923

tdurst@omm.com