Author Topic: Education Is Speech: Why New York’s Attempts To Control Private Schools Are Unconstitutional  (Read 382 times)

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Education Is Speech: Why New York’s Attempts To Control Private Schools Are Unconstitutional
Courts will not be able to ignore the reality that education is speech and that states are imposing unconstitutional content and viewpoint discrimination.
By Philip Hamburger
August 22, 2019
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 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.  ...

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.  ...
Read the entire rather lengthy article at The Federalist

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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