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Why New York’s Attempts To Control Private Schools Are Unconstitutional

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New York State recently announced regulations that would add sharp teeth to its policy of requiring private schools to be “substantially equivalent” to public schools. Although this initially sounds reasonable, on closer examination the regulations impose a stifling conformity on private educational speech.

This problem exists in many states. The New York regulations should therefore provoke a reconsideration of the threats to educational speech across the country.

A vast literature explores the freedom of speech of grade-school students against their teachers and schools, but curiously, there is very little recognition of the free speech rights of parents and schools against the states. These rights now need attention.

What Is Substantial Equivalence?

A long-standing New York State statute generically obliges private schools to offer education “substantially equivalent” to public-school education. Not content with something so open-ended, the state’s Department of Education specifies in regulations how substantial equivalence is to be enforced. It thereby accentuates the threat to freedom of speech.

The immediate targets of the regulations are 39 Yeshivas that, for religious reasons, reject much of what is considered standard in secular education. For example, they teach mostly in Yiddish rather than English, and they do not teach more than rudimentary math and English. But the regulations do not stop with these Yeshivas. They apply to all private schools, spelling out how their teaching must be at least roughly aligned with public education.

The regulations require “local school authorities,” and then the commissioner of education, to evaluate private schools and determine whether they are “substantially equivalent” to public schools in the same area. If not, and if remedial efforts fail, the state can cut off its supply of textbooks, transportation, special education, and other funding. Students who stay in these schools will be considered truant, parents may be fined, and some students might be subject to being jailed.

Last April, the Albany County Supreme Court struck these regulations down for noncompliance with state administrative procedures for issuing regulations. But in July the state again proposed them, this time in conformity with those procedures. So, the question of whether these regulations are constitutional will soon come before the courts.

Compelled Speech and Content Discrimination

There are several powerful constitutional objections to the New York regulations, most centrally that, in pressuring private schools on what and how to teach, the regulations abridge the freedom of speech. The initial problem consists of compelled speech and content discrimination.

Thirty states dictate the content of teaching in one way or another. The New York version of such regulation is very detailed. Though New York’s substantial-equivalence statute specifies that elementary and middle private schools must teach English, math, history, and science, this just the beginning.

The state’s new regulations require officials to judge substantial equivalence on the basis of whether private schools teach (in one way or another in various grades) a much wider range of subjects, including: arithmetic and mathematics, science, technology, social studies (including geography and U.S. history), the visual arts, music, career development and occupational studies, library and information skills, health education, physical education, and family and consumer sciences.

Although all of these subjects may be important in one sense or another, many could reasonably be left out of a classroom curriculum. Fine citizens have surely grown up without grade school instruction in the entirety of New York’s baroque panoply of subjects. Such a multiplicity of topics may even distract many students from concentrating on what will matter to them.

New York is free to make its own idiosyncratic choices in its public schools, but not for private schools. It would have been much less unreasonable if it had required only two or three subjects in private schools—for example, math and at least one language, these being basic building blocks. To be sure, the unreasonableness by itself is not a constitutional objection, but it suggests the danger of New York’s unconstitutional policy.

The substantial equivalence requirement, especially when coupled with the enumeration of subjects, amounts to compelled speech and content discrimination. The regulations force private schools to teach the subjects the state favors, and penalize the private schools that, on account of their different priorities, teach a different combination of subjects.

Viewpoint Discrimination

Worse, the statute and the regulations require viewpoint discrimination. They stipulate that the evaluation of substantial equivalence must consider whether a curriculum develops “critical thinking skills in the school’s students.” Of course, there is much to be said for critical thinking skills. But critical thinking, as revealed by its history, comes with a slant.

The most important development in American religion since the Revolution has been the rise of theological liberalism. Although it is often assumed that religious conflict in America tends to occur between different religions or denominations, the most significant religious division has not been denominational, but the tension between theological liberalism and orthodoxy. In the late nineteenth and twentieth centuries, theological liberals largely routed the orthodox, whom they disparaged as closed-minded and opposed to critical thinking.

This matters because much twentieth-century educational theory drew upon theological liberalism’s advocacy of independent judgment and critical thinking in opposition to orthodoxy, especially religious orthodoxy. To be sure, most educators have abandoned the belief in God that once tended to underlie such ideas, and such ideas are therefore no longer distinctively religious. But ideas of critical thinking continue to be expressive of liberal animosity against orthodoxy, especially religious orthodoxy, and this animus is often still felt with religious intensity.

“Critical thinking skills,” especially as applied to religious education, thus involves a point of view. On its face, this requirement would pressure schools to teach students the skill of confronting orthodoxy with skepticism.

In short, this is unconstitutional viewpoint discrimination. How it will be applied is unclear, because the phrase “critical thinking” is so vague. But it clearly stands in opposition to religious orthodoxy, and far from absolving the state, the vagueness just adds to the constitutional problems.

From a theologically liberal perspective, orthodoxy demands uncritical and thus unthinking conformity. On this understanding, “orthodox thinking” is nearly an oxymoron—certainly not something the government needs to tolerate in education. But intellectual exploration is not possible without relying on some constants. Orthodoxies are at least candid in putting aside some variables and stating their constants. From this point of view, an overstated vision of critical thinking may be its own “unthinking” orthodoxy.

Government has no constitutional power to punish schools for their point of view. And it has no constitutional power to force orthodox schools to teach a central element of theological liberalism. For at least 150 years, religious and other orthodoxies have been opposed with demands for critical thinking. In this context, it is viewpoint discrimination when New York pressures private schools to teach “critical thinking skills.”

A Sort of Political Speech?

Although freedom of speech is not confined to political speech, justifications of this freedom tend to focus on the value of unrestricted political expression. So it is telling that public constraints on private educational speech recognize it as political.

The states themselves acknowledge that educational speech is political.

For almost two centuries, it has been said that states have an interest in private education because children must learn how to become good citizens, who can think critically and so thoughtfully participate in civic affairs. Nativists popularized this civic justification of restrictions on private schools. And in line with old nativist concerns, it is still especially common on behalf of the requirements that students learn American history and civics; be taught in English; and learn critical thinking.

But this civic justification is precisely what hammers home the unconstitutionality of the intrusion on private speech. The justification rests on a fear about the political significance of educational speech—the anxiety that, without state control, education will not inculcate the opinions, language, and mental habits appropriate for citizens. In other words, the states have long confined private educational speech on the theory that, because it is politically formative, it matters too much to be left to people to choose for themselves.

The states themselves thus acknowledge that educational speech is political. Accordingly, even if one believed educational speech were of lower status than political speech, this excuse would not apply here.

The Centrality of Speech

It is difficult to escape the reality of a threat to speech. Education is speech—to be precise, it is largely speech, or inextricably intertwined with speech. And New York’s regulations, together with similar provisions in other states, focus on speech, even dictating content and viewpoint.

For more than a century, the danger that the regulation of education abridges the freedom of speech has eluded most commentators. In 1925, in Pierce v. Society of Sisters, the Supreme Court held a Ku Klux Klan-backed Oregon law unconstitutional for requiring attendance at public schools. The basis for this decision has long seemed a mystery.

Once the centrality of speech is understood, not only that old Klan statute but also a wide range of state educational controls can be seen with greater clarity.

Did it turn on the economic rights of private schools, the right of parents over their children, or the religious liberty of parochial schools? The answer is actually more direct and more clearly based in the Constitution’s express guarantees: Education is speech. The Klan statute, by intent and in effect, interfered in the speech of private schools.

Once the centrality of speech is understood, not only that old Klan statute but also a wide range of state educational controls can be seen with greater clarity. Regulation can be valuable, even in education, but when it veers off to abridge the freedom of speech, it becomes profoundly dangerous and unconstitutional.

Of course, none of this is to say that the courts will immediately recognize the full extent of the constitutional problem. The speech arguments, being new, are unimpeded by precedent; but for the same reason they are also unfamiliar. The courts may therefore hesitate to overturn some of the speech controls that many states have come to take for granted.

The courts, however, will not be able to ignore the reality that education is speech and that states are imposing unconstitutional content and viewpoint discrimination. Most immediately, the courts cannot ignore that New York’s regulations go further than most. These regulations dictate very detailed content and a hostile viewpoint. They accordingly should induce the courts to take the very modest step of recognizing at least some limits to state assaults on private educational speech.

The Dubious Heritage of Nativism

Not far behind constitutional questions lies the dubious heritage of nativism. For more than a century, beginning in the 1830s and ’40s, nativists resisted immigration and led a theologically liberal Protestant campaign against the Catholic Church and its parochial schools. Under that influence, public schools tended to inculcate a Protestant vision of American ideals, focusing on the King James Bible and the American flag. In response to this attempt to Protestantize their children, Catholics organized their own schools, many of which persist to this day.

To nativists and many Protestants, the teaching in such schools was regrettable because of both its content and its viewpoint. For example, parochial schools did not teach Darwinism, or inculcate a critical attitude toward claims of truth, whether religious or secular.

One solution was to compel children to attend public schools. Another was to legislate what private schools had to teach.

One solution was to compel children to attend public schools. Another was to legislate what private schools had to teach; New York, for example, introduced its substantial equivalence test in 1895. This solution—dictating the content of private education—became especially popular after compulsory public schooling was precluded in 1925 by Pierce. That is, because anti-orthodox homogenization could no longer be achieved by compulsory public education, it could only be accomplished by imposing content and viewpoint requirements on private schools. Either way, it is an unconstitutional assault on private speech.

The nativist heritage of the substantial-equivalence regulations is seen in their demand for English language teaching. Sixteen states require even private curricula to be taught in English. New York aims to be particularly comprehensive.

By statute, New York requires English to be the teaching language in English, math, history, and science; but its new regulations pressure private schools to use English as the teaching language in the vast array of “common branch” subjects it requires in public schools, including arithmetic, science, reading, writing, geography, civics, U.S. history, New York history, hygiene, and physical training—as if writing could not be usefully taught in Latin, or math in German.

Although for New York today the disapproved language is Yiddish, for nativists after World War I the deviant language was German. After Nebraska responded to nativist demands by prohibiting teaching in German, the Supreme Court in Meyer v. Nebraska in 1923 held this sort of language regulation unconstitutional. The New York Department of Education and its supporters surely do not identify as nativist, but their demand that private teaching of most topics be in English unconsciously echoes an unconstitutional legacy that should have been left in the past.

Now, as in nativist days of old, the insistence that private schools teach in English is justified as necessary to train children in a common language with which they can succeed personally and participate politically. But obviously students can learn English even in a school that teaches most other subjects in Latin or Mandarin. Ultimately, it is irrational and stifling, even unwittingly nativist, to bar private schools from teaching in a foreign language.

A Compelling Government Interest in Education?

In response, one might protest that there is a long history of requiring basics to be taught in private schools; that this is necessary to ensure an educated citizenry; and that states therefore have a pressing government interest in such regulation. In legal terms, New York has a “compelling government interest” that justifies its content and viewpoint discrimination. But on inspection, such arguments fall apart.

Undoubtedly, education comes within the scope of each state’s plenary legislative power. This is not to say, however, that this state interest is so “compelling” as to justify the state in abridging the freedom of speech.

Only nativism elevated education to an interest so necessary to government as to override state and even federal constitutional speech rights.

Only nativism elevated education to an interest so necessary to government as to override state and even federal constitutional speech rights. At the beginning of the republic, some commentators theorized about the value of education for creating good citizens, but such ideas found little traction until nativists worried that Catholics would unthinkingly follow the dictates of a foreign potentate.

Nativists therefore preached that one of the primary functions of government was to educate children in “American” principles—so as to ensure the development of citizens who would think for themselves and be loyal to American “democratic” ideals. It thus became a popular assumption that the government’s interest in education was so profound as to cut off contrary claims of rights—in legal terms, so compelling as to override concerns about the speech and religious rights of children, their parents, and their schools.

A compelling government interest in education became plausible due to hysterical, aggressive fears of Catholicism. This is hardly reassuring; indeed, it is worrisome. Prejudice is a poor foundation for constitutional doctrine. And it is particularly dangerous when it shifts constitutional baselines.

Limited government depends on the power of the people to shape their own opinions independently of government.

Even if nativism did not lurk behind the scenes—though it obviously did—a government interest in education cannot be so “compelling” or important as to slice through constitutional freedoms. The notion of a compelling government interest in education inverts the relationship between people and government.

Limited government depends on the power of the people to shape their own opinions independently of government. When government asserts the power to shape their opinions, it can liberate itself from the people’s control.

It is therefore telling that government regulation of private education has long been justified as necessary to ensure that children acquire civic values and are prepared to be good citizens—which is as much as to say that government must shape the people and their civic thoughts. This dark vision upends the Enlightenment theory of popular control of government, insisting that government must remake the people to conform to government standards.

To this it need only be added that, even if one thought New York had a lawful, compelling government interest in tamping down deviant private speech—which it does not—its regulations are profoundly disproportionate. They take aim at the “problem” of unacceptable dissent in some private schools by flattening out speech in all of them. This is the “substantial equivalent” of a nuclear weapon.

State Homogenization

Twentieth-century nativists candidly hoped that public schools would grind away the ethnic and religious differences among children and thereby homogenize the American people. But whatever the merits of public school homogenization, there is no constitutional room in America for state assaults on deviant private opinion, whether in education or elsewhere.

For early Americans, the education of children was largely a private affair, conducted usually in English but often entirely in German. Few Americans were so troubled by this or by corresponding differences in other schools’ curricular content or viewpoint as to demand legal controls on their speech.

States wish to turn formerly independent private schools into instruments of homogenization.

This relative willingness to live with differences is nicely captured by the 1816 “Constitution” of an octagonal Union School, probably in Pennsylvania, which the local English and German communities jointly built and used in rotation—initially alternating annually and beginning five years later every semester—without either group trying to dictate what the other taught, let alone in what language. Nowadays, however, private schools must conform to demotic demands for conformity in content, viewpoint, and language.

Such demands are especially dangerous for all sorts of unorthodox orthodoxies. If a handful of Yeshivas cannot experiment in teaching their preferred content and viewpoint, what will be the fate of other minorities who deviate from what is claimed to be the majority’s sense of normality?

Government generally defers to the decisions of parents about their children and their welfare. It is therefore telling that when New York sweepingly departs from this principle, it is to interfere with parental control of private educational speech. The First Amendment apparently must get cast aside when states wish to turn formerly independent private schools into instruments of homogenization.

Government should not be the arbiter of what parents and schools teach their children.

To be sure, a refusal to teach much math, science, and English may come at great cost for many students. But the displacement of religious education may also come at great cost—especially when, as here, it is at the heart of the students’ individual and communal identity. One way or another, government should not be the arbiter of what parents and schools teach their children.

John Stuart Mill wrote in his “On Liberty” about the value of “experiments in living,” and this is never more clearly true than when the experimentation is almost entirely a matter of speech. What New York considers the failings of the Yeshivas is really an experiment—a speech experiment in a different mode of living. And given the abysmal failures of public schools, it is equally comic and tragic to respond to this experimentation by insisting that all private schools be homogenized to resemble public schools.

Administrative Control of Speech

Accentuating the danger to speech is administrative control. A New York statute recites the bare bones of substantial equivalence, but it is the state’s administrative regulations that flesh the requirement out. This is troubling because traditionally one of the foundational protections for speech was that constraints on it could be imposed only through statutes—through laws openly adopted by a representative legislative body.

Administrative regulation of speech predictably threatens freedom, and should therefore always be viewed with suspicion.

It is commonly assumed that speech needs to be protected from political majorities, and that this is the primary purpose of the speech guarantees in the First Amendment and state constitutions. But speech also needs protection from elites and other factions less than a majority, and for this purpose it is important that binding constraints be constitutionally imposed only through acts of the legislature.

This is particularly clear in a relatively large state such as New York, where the legislative obstacles to oppression are reinforced by the political limits inherent in the state’s diversity. As James Madison explained in Federalist No. 10, unjust or oppressive measures are less likely to be adopted in an extended republic than in a small one. Though Madison was speaking of the expansive republic formed by the United States, at a smaller scale his observation also applies to the Empire State, in which the breadth of different groups and interests impede the capacity of the legislature to act oppressively.

It is therefore no surprise that New York’s substantial equivalence regulations are oppressive. By working through administrative regulations and avoiding the necessity of a legislative vote on the details of substantial equivalence, the state has sidestepped both the legislative process and the Madisonian political limits on oppression. Put doctrinally, administrative regulation of speech predictably threatens freedom, and should therefore always be viewed with suspicion.

Administrative Evasion of the Judicial Process

That is not all. The administrative control of speech, which evades the legislative process, is accompanied by circumvention of the judicial process. Since the eighteenth century, one of the most valuable and traditional protections for speech was that the government could control it only through recourse to the courts, where defendants had the benefit of an independent judge and jury.

This leaves private schools and their speech rights to the tender mercies of persons fully committed to, and often even employed by, the public school system.

But by working through the Department of Education’s regulatory process, the state of New York brushes aside the protections of judge and jury, allowing local school authorities and the commissioner of education to impose speech regulations and adjudicate conformity to them. This leaves private schools and their speech rights to the tender mercies of persons fully committed to, and often even employed by, the public school system—a conflict of interest utterly incompatible even with watered-down contemporary ideas of due process of law. More basically, it denies private schools a jury and allows access to a judge only long after any administrative adjudication, when the judge is apt to defer to the administrative determinations of fact and law.

All of this violates, if not the New York Constitution, then at least the jury and due process guarantees of the U.S. Bill of Rights as incorporated against to the states under the Fourteenth Amendment.

New York State’s substantial equivalence regulations thus illustrate much that is appalling about administrative regulation of speech. The regulations deny speech the protection of the legislative and political processes—even of the judicial process, including judge and jury—all to impose content and viewpoint discrimination in pursuit of constraints that reek of nativism.

The Way Forward

To move forward, the courts should begin by holding New York’s substantial-equivalence regulations unconstitutional. This should be followed with decisions against other states’ abridgments of educational speech.

More fundamentally, the public and the courts must recognize the problem: that education is speech. This speech, as much as political speech, deserves to be fully protected from content and viewpoint discrimination. Especially because much regulation of education is designedly aimed at the political judgment or opinion of citizens, and has disgraceful theological and nativist roots, it deserves skepticism and cannot be presumed to escape standard constitutional doctrines.

Ultimately, the Supreme Court ought to follow up on Pierce and Meyer with a new landmark decision protecting speech in education.

Americans need a new movement to protect private schools—a movement based on the principle that education is speech and recognizing that much regulation of private education is aimed at speech. A century after the Klan tried to impose compulsory public education on children in Oregon, many state legislatures are still trying to impose conformity in other ways—not least, by regulating educational speech in private schools. It is time to end state attempts to homogenize private speech.

Philip Hamburger is the Maurice and Hilda Friedman professor of law at Columbia Law School, and the president of the New Civil Liberties Alliance.

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