“The child is not the mere creature of the State.”
With those words, issued a century ago, a unanimous Supreme Court recognized that “the fundamental liberty upon which all governments in this Union repose” prevents the government from attempts to “standardize its children by forcing them to accept instruction from public teachers only.” Parental rights include the right to choose private education.
Few cases have more profoundly shaped the intersection of education, parental rights, and religious freedom than Pierce v. Society of Sisters. Deciding amid a wave of nativist sentiment and efforts to homogenize American culture through compulsory public education, the Court struck down a Ku Klux Klan–backed Oregon law mandating public school attendance for all children. In doing so, it affirmed the right of parents to direct the upbringing and education of their children—a principle that has since become a cornerstone of constitutional law.
Nevertheless, Pierce left several critical questions unresolved. While the decision prohibits the state from banning private schools, it remains unclear whether the state may require private institutions to offer an education “substantially equivalent” to that provided in public schools. Similarly, although Pierce affirms the right of parents to opt out of public education altogether, it does not directly address whether parents whose children attend public schools may selectively exempt their children from specific classes or curricular content they find objectionable.
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These questions are currently the subject of cases in New York and Maryland that have the potential to shape the debate over parental rights, religious liberty, and education for the century to come.
From Parental Duties to Legal Obligations
Understanding Pierce and its progeny requires first noting its context. The principle that parents have primary authority over the upbringing and education of their children has deep philosophical and legal roots. In his Second Treatise of Government, for example, John Locke argued that parental childrearing authority precedes, and is independent of, political authority. Influenced by Locke, Sir William Blackstone wrote of parents’ common-law duty to provide for the maintenance, protection, and education of their children. Blackstone, in turn, was one of the legal commentators most familiar to America’s Founders.
Parents’ obligation to direct their children’s education led to laws requiring the education of children, beginning with the Massachusetts Bay Colony in 1642. Five years later, in order to ensure that all children could read the Bible, the Colony began requiring communities above a certain size to make teachers of reading and writing available for all children and to establish grammar schools. Whatever the instructional setting, however, the primary authority to direct children’s education remained with their parents, and the household remained the most important agency for transmitting learning, skills, and moral values.
Again led by Massachusetts, by 1918, every state had enacted laws requiring parents to send their children to a public school or to a private or parochial school that met certain standards. This movement threatened to shift primary control over children’s education from their parents to the state.
Enter the Supreme Court.
In 1919, the Nebraska legislature enacted a criminal law requiring that instruction of all subjects, in private or public schools, be in English until children passed the eighth grade. A Lutheran teacher convicted of teaching reading in German challenged the law, arguing that it violated the Fourteenth Amendment. Ratified in 1868, the amendment prohibits states from depriving “any person of life, liberty, or property, without due process of law.”
In Meyer v. Nebraska, the case that resulted, the Supreme Court held that “liberty” under the due process clause includes not only “freedom from bodily restraint” but also “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The Court held that the teacher’s right to teach “and the right of parents to engage him so to instruct their children . . . are within the liberty of the amendment.” The Court struck down the Nebraska law, declaring that it “materially . . . interfere[d] with . . . the power of parents to control the education of their own.”
Two years later, the Court would build on Meyer’s broad conception of liberty in Pierce v. Society of Sisters, further solidifying the constitutional protection of parental rights in education and pushing back against state efforts to monopolize schooling.
Pierce v. Society of Sisters
Oregon first enacted a compulsory school law in 1889. The law required parents to enroll children ages eight to fourteen in a public school or a private or parochial school that met certain standards. However, in 1922, Oregon voters passed a ballot initiative requiring that children attend public schools exclusively, banning attendance at parochial or secular private schools. The driving motivation behind the initiative was to outlaw Catholic schooling.
Two private schools, one Catholic and one secular, challenged the law as violating “the right of parents to choose schools where their children will receive appropriate mental and religious training” and “the right of schools and teachers . . . to engage in a useful business or profession.” As in Meyer, the Court did not question the state’s general authority to require attendance at “some school.” Requiring attendance only at a public school, however, would destroy private primary schools. Citing Meyer, the Court held that this “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”
This liberty, of course, is not in the text of the Fourteenth Amendment. Both Meyer and Pierce were examples of what is often called “substantive due process,” or giving substantive content to the “liberty” in the due process clause by recognizing unenumerated rights.
The legitimacy of courts’ finding unwritten substantive rights in a written Constitution intended to govern them has long been debated. While the Supreme Court has used this method to create novel rights with no historical, cultural, or legal roots, such as same-sex marriage or abortion, the Court in Meyer and Pierce tapped into the centuries-long tradition, noted above, of parental authority to direct the upbringing and education of their children. In fact, in the 2000 case Troxel v. Granville, the Court would describe this right as “perhaps the oldest of the fundamental liberty interests recognized by this Court.”
While this parental right is unenumerated, it is perhaps more appropriate to say that the Supreme Court recognized rather than invented or created it. One of the Court’s most potent statements in Pierce hearkened back to the common law: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Determining the Framers’ intentions can be difficult; as can identifying the content and ideal application of unwritten rights, even those with such deep roots. Pierce holds that the state cannot abolish private schools, but can it impose regulations that effectively compel private schools to so closely resemble public schools that they lose their distinctive character? This remains unclear.
Likewise, Pierce affirms that parents’ right to direct their children’s education includes opting out of public schools altogether. But if parents choose to enroll their children in a public school, do they forfeit their ability to opt out of particular educational programs or courses of instruction? Pending cases before the courts may soon clarify.
Private Schools and Substantial Equivalency: The New York Yeshiva Case
Orthodox Jewish schools, known as yeshivas, look very different from the standard public school. They tend to begin the school day earlier and end much later, and most of the day is spent studying religious texts: the Torah, halacha (Jewish law), and especially the Talmud, a vast compendium of rabbinic legal debates, biblical exegesis, and stories covering innumerable topics including ethics, theology, philosophy, history, torts, agriculture, commerce, ritual law, and more. Most yeshivas, particularly among the Modern Orthodox, also offer robust secular studies. But a subset of more traditional Haredi Orthodox Jews minimize secular studies in their schools.
Since 2018, the Haredi yeshivas have been under assault by New York State Education Department (NYSED) bureaucrats and their media allies, who allege that the yeshivas are failing to provide an education that is “substantially equivalent” to that of the public schools. The New York Times ran a series of articles highlighting the claims of Young Advocates for a Fair Education, a group of formerly Haredi graduates of yeshivas they claimed left them unprepared for higher education. They are pushing NYSED to enforce stricter educational standards for their former schools.
Others argue that the yeshivas prepare the children they serve to live as productive members of their community and the broader society. Dr. Moshe Krakowski of the Modern Orthodox-affiliated Yeshiva University, for example, spent years studying Haredi yeshivas and finds that their classroom activities, grappling with the meaning of primary sources written in multiple languages, “more closely resemble upper-level humanities coursework in a university than clerical training.”
Just as the Pierce case had implications far beyond the Catholic school at the center of the lawsuit, resolution of the yeshiva case will have broad ramifications for parental rights and religious liberty generally. To what extent can the government regulate private schools before it violates the right of parents to direct the upbringing of their children? Can the government require private schools to provide instruction “substantially equivalent” to public schools?
Enacted in 1894, New York’s substantial equivalence statute was born of the same anti-Catholic motivations as the 1922 Oregon compulsory education law at issue in Pierce. It also paralleled so-called “Blaine Amendments,” constitutional provisions adopted in New York and nearly forty other states prohibiting any public financial support for parochial schools.
At the time, public schools functioned as de facto non-denominational Protestant schools, where teachers led students in Protestant prayers and taught the Protestant version of the Bible. The Supreme Court would later condemn the “shameful pedigree” of the Blaine Amendments, observing that they were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general.”
Even though Catholics and other religious minorities were forced to pay for the supposedly “nonsectarian” public schools via their taxes, the Blaine Amendments ensured that the Catholics’ own “sectarian” schools would receive no taxpayer assistance. But the Protestant majority went even further than denying public funds to parochial schools. They passed a law requiring that the education provided at private schools be “substantially equivalent” to that offered at public schools. However, as Catholics were keen to show that they were just as American as anyone else, with few exceptions, the law essentially remained unenforced for more than a century.
That changed in 2018, when New York State Education Commissioner MaryEllen Elia announced new “guidelines” that substantially reinterpreted the substantial equivalence statute. These revised guidelines require private schools to provide instruction in eleven specific subjects for a minimum of 17.5 hours per week.
To monitor adherence, NYSED would, along with local authorities, conduct inspections of private schools. Schools found to be noncompliant risked losing access to public support programs, including funding for textbooks, transportation, and school meals. In more severe cases, the commissioner could require parents to enroll their children in another school and declare truant any children who remained enrolled at a noncompliant school.
Within a few months, New York was facing three separate lawsuits from organizations representing Jewish, Catholic, and independent schools challenging the new guidelines on constitutional, statutory, and procedural grounds. Citing Pierce, the lawsuit filed by a Haredi-aligned organization called Parents for Educational and Religious Liberty in Schools (PEARLS) argued that the statute violated the rights of parents to direct their children’s education and to choose an education that aligned with their beliefs. They cited First and Fourteenth Amendment violations, among other claims. These parents do not want an education that is “substantially equivalent” to what public schools offer: the education they desire for their children is substantially different.
In 2019, a trial court in Albany County nullified the new guidelines, finding that NYSED had failed to follow the proper procedure when issuing them, ; but the court did not address the merits of the constitutional claims. NYSED soon began the process of issuing new guidelines following the proper procedures, including allowing public comment. Within a span of three months, the department received more than 140,000 public comments about the proposed guidelines, the vast majority of which were opposed.
The New York Board of Regents adopted the new guidelines, which closely resembled the previous attempt to revise the substantial equivalence guidelines, in September 2022. Soon after, New York Education Commissioner Betty Rosa declared that one yeshiva failed to meet the substantial equivalence guidelines and must develop an improvement plan or face closure. PEARLS and several yeshivas quickly filed suit. A year later, a trial court judge invalidated the statute’s enforcement mechanism, holding that the burden to ensure a child received a substantially equivalent education fell on the parents, not the schools. In other words, parents could meet the statute’s requirements using a variety of education options—tutoring, homeschooling, virtual learning, etc.—but no one education provider needed to meet all the statutory requirements.
However, the victory was short-lived. Last year, the New York Court of Appeals overturned the trial court judge’s decision, holding that a “child attending an institution for a full, lengthy school day period who is not receiving or obtaining a substantially equivalent education in the basics of arithmetic, English, science, and history . . . cannot adequately supplement this substandard curriculum in the few hours remaining in the week.”
Nevertheless, the lawsuits bought the yeshiva advocates sufficient time to push back politically. The New York legislature recently modified state law to allow more pathways for private schools to demonstrate substantial equivalence and to phase in the compliance mechanisms. But if the case returns to court, many questions remain. To what extent can the state override parental rights in the name of educational oversight? At what point does imposing secular education standards on religious schools violate the Free Exercise Clause by interfering with religious practice? And are Haredi Orthodox yeshivas being subjected to unequal treatment compared to other non-public or religious schools?
The last question could prove decisive for the yeshivas. NYSED only counts yeshiva classes taught in English toward their substantial equivalence requirements, while accepting multilingual instruction in public schools and other private schools. Courts are unlikely to permit this double standard, especially in the wake of the Supreme Court’s decisions in two COVID-era cases.
In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court declared that the constitutional requirement of religious neutrality is met only if religious groups are treated as well as the most favored secular category under the law. In that case, New York State had closed churches and synagogues due to COVID, but allowed certain “essential” businesses to remain open. The Court temporarily enjoined the executive order, allowing the houses of worship to reopen.
In a subsequent case, Tandon v. Newsom, the Supreme Court clarified that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” Therefore, if public schools and other private schools can meet state standards with classes taught in Spanish, Arabic, or other languages, then yeshiva classes that are taught in Yiddish, Hebrew, or Aramaic should also be deemed compliant.
Parental Opt-Out in Public Schools: Mahmoud v. Taylor
Parents clearly have the right to opt out of the public school system entirely, and that right might extend to private schools that offer a substantially different education. But if they choose to enroll their child in a public school, can they opt out of individual classes and lessons, or must they accept the whole package? This spring, the Supreme Court heard arguments in Mahmoud v. Taylor, which should answer this question.
In October 2022, the Montgomery County, Maryland Board of Education announced a policy requiring the use of LGBTQ-inclusive storybooks as part of the English Language Arts curriculum for elementary school students. The content of the books, as well as materials provided to teachers for fostering discussion and answering questions, makes clear that the school board intended to challenge or “disrupt” students’ traditional views about gender and sexuality. The immediate firestorm of controversy came not only from parents on religious grounds, but also from teachers and even administrators who questioned this program’s efficacy and age-appropriateness.
In response, the school board agreed to notify parents when the storybooks would be used and, as it does in other contexts, allow them to opt their children out. The board’s “Guidelines for Respecting Religious Diversity” even state that schools should accommodate parents’ requests to opt their children out of instruction they believe “would impose a substantial burden on their religious beliefs.” Less than a year later, however, the school abruptly, and without explanation, rescinded this notice-and-opt-out policy, requiring all students as young as three years old to receive this instruction without exception. The board even advised teachers not to inform families when this controversial material would be used.
A group of parents from various religious traditions filed suit, arguing that this mandatory policy violated their right to exercise religion, which includes directing what their children learn about sexuality and gender. The lower courts held that requiring young children to participate in such instruction not only does not violate their parents’ right to exercise religion, but that it does not even impose a burden on that right at all.
This case does not raise the right of parents to direct the upbringing and education of their children in the general way that Pierce did, but it does show how this unenumerated parental right can intersect with enumerated rights such as the free exercise of religion. The best outcome will be for the Supreme Court to hold that denying any notice or opt-out, especially after having allowed them before, infringes on the parents’ right to exercise religion. At least in these circumstances, that right involves directing the upbringing of their children regarding sensitive matters such as gender and sexuality.
In other words, the Supreme Court should not only reverse the lower court decisions by concluding that the school district’s policy places a substantial burden on their religious exercise, but also by explaining clearly that this exercise of religion is intrinsically linked to their responsibilities as parents.
Courts have held that, while the parental right recognized in Pierce includes deciding which school their child will attend, it may have less force regarding matters within schools such as curriculum development or administration. This does not mean, however, that policies or actions in those categories will not undermine, perhaps significantly, parental authority regarding their children. One way to mitigate this potential damage is to show how school policies, such as the promotion of gender ideology through social transition, do not fall within those categories of items traditionally left to schools’ discretion.
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Mahmoud presents another possibility. A parent relying on the First Amendment right to freely exercise religion may have a more potent claim regarding the use of objectionable material on sensitive subjects than a parent asserting only a general Pierce-style parental right. The Supreme Court’s decision in Mahmoud, therefore, will be instructive regarding the breadth and substance of rights that parents can defend when it comes to their children’s upbringing and education, even within the educational context itself.
The Legacy and Future of Pierce
Many originalists and textualists remain critical of courts’ using the due process clause to establish any substantive rights and skeptical of the Supreme Court’s attempt to limit recognition of unenumerated rights to certain categories. Nonetheless, as explained, the right of parents to direct the upbringing and education of their children has deeper roots than other unenumerated rights and, when combined with the right to exercise religion, can have a more concrete connection to the Constitution.
For a century, Pierce v. Society of Sisters has endured not merely as a bulwark against government overreach, but by establishing as a foundation for that resistance the primacy of parental authority regarding their families. This fundamental principle is older than America itself. By giving this right, already recognized in the common law and colonial statutes, constitutional status, the Supreme Court ensured that it would continue to influence debates over the limits of state authority in regulating private education and the extent of parental rights in public school settings.
Parents’ authority over their children’s education is being challenged as much today as it was by states like Oregon a century ago. Cases like the ones discussed here will continue to arise as government finds new ways to substitute its ideology for parental prerogatives. Especially where other rights, such as the free exercise of religion, are also involved, Pierce remains a solid basis on which parents can insist on their proper place in the family and society.
