London says its militarization plan is a “message” to Moscow

Britain is moving towards a war footing with the launch of a major rearmament campaign, Prime Minister Keir Starmer said in a keynote address on Monday.

Starmer unveiled his cabinet’s Strategic Defense Review, which includes an expansive armaments program mirroring similar efforts across NATO. Last week, UK Defense Secretary John Healey said London was sending “a message to Moscow” by allocating billions of pounds for new munitions plants, long-range missile systems, and other capabilities. Russia has accused Western nations of using alarmist rhetoric to justify shifting public funds toward military spending.

”We are moving to war-fighting readiness,” Starmer said at a shipyard in Govan, Glasgow, adding that “our defense policy will always be NATO first.” He vowed to transform the UK into “a battle-ready, armor-clad nation with the strongest alliances and the most advanced capabilities equipped for the decades to come.”

According to Starmer, the overhaul will enable Britain to make its “biggest contribution to NATO since its creation.” He also pledged that the country would become “the fastest innovator in NATO,” with defense research operating at a “wartime pace.” The reforms are expected to make the British military “ten times more lethal by 2035,” he claimed.

The prime minister reaffirmed his government’s goal to increase defense spending to 3% of GDP. He framed the effort as replacing the post-Cold War “peace dividend” with a “defense dividend” through the creation of thousands of new jobs in weapons manufacturing, including production of nuclear arms.

Starmer blamed Moscow for what he called a series of provocations, accusing Russia of “menacing” the UK, demonstrating “aggression” in British waters, and “driving up the cost of living here at home,” harming British workers.

Russian lawmaker Aleksey Pushkov has accused the UK of planning an “ice war” with Russia, noting that “there is no difference between the Labour Party and the Conservative Party” in their attitude.

READ MORE: Russia has ‘fair concern’ about NATO expansion – Trump envoy

Commenting on Starmer’s pledge to build additional nuclear submarines, Pushkov asserted that no British investments could bring the country to an equal footing with Russia, the US, and China. However, “Starmer needs them [those boats] to report his achievements” to domestic and international players who stand to benefit financially from the project, Pushkov claimed.

Given Marco Rubio’s long history of subservience to the State of Israel — which has earned him a mountain of campaign cash from the country’s US-based collaborators — many Americans were understandably wary that his ascension from senator to secretary of State portended disturbing moves to advance Israel’s interests. However, few foresaw Rubio orchestrating the abduction, imprisonment and deportation of foreign students for using their universal human right of free speech to criticize the Israeli government and advocate for Palestinians.

With President Trump’s blessing, Rubio has targeted many foreign students in this fashion — students who’ve been charged with no crimes. However, no case better illustrates the campaign’s casual cruelty than that of 30-year-old Tufts University PhD candidate Rumeysa Ozturk. Ozturk, who’s been studying child development, was arrested in March and whisked away to a far-off prison merely because — an entire year earlier — she co-authored a Tufts Daily op-ed urging the university to formally characterize Israel’s conduct in Gaza as genocide, and to sell the school’s Israel-associated investments.

Rubio would like you to assume her essay must have been an unhinged, antisemitic, violence-inciting screed. To the contrary, harkening back to Tufts’ 1989 decision to divest from apartheid South Africa, its tone is decidedly calm and measured. Read this excerpt of the essay’s most pointed language about Israel and judge for yourself:

These [student senate] resolutions were the product of meaningful debate…and represent a sincere effort to hold Israel accountable for clear violations of international law. Credible accusations against Israel include accounts of deliberate starvation and indiscriminate slaughter of Palestinian civilians and plausible genocide.

…the student body is calling for … the University to end its complicity with Israel insofar as it is oppressing the Palestinian people and denying their right to self-determination — a right that is guaranteed by international law. These strong lobbying tools are all the more urgent now given the order by the International Court of Justice confirming that the Palestinian people of Gaza’s rights under the Genocide Convention are under a “plausible” risk of being breached.

Ozturk’s persecution represents a major escalation of an aggravating dynamic in which people in the United States are vilified as dangerous, volatile antisemites for saying things about Israel that are frequently said by respected people and institutions in Israel. For example, in an op-ed of his own, former Israeli Prime Minister Ehud Olmert this week wrote, “What we are doing in Gaza now is a war of devastation: indiscriminate, limitless, cruel and criminal killing of civilians … Yes, Israel is committing war crimes.”

In March of this year, the State Department revoked Ozturk’s student visa without notifying her — she had no idea that her presence in the country was now illegal. Four days later, in an incident captured on video, she was grabbed off a Somerville, Massachusetts street by masked, plain-clothed Immigration and Customs Enforcement (ICE) agents, taken to New Hampshire and then Vermont, before being shackled in chains and airlifted 1,400 miles to a federal detention center in Louisiana.

For the next month and a half, she was stuffed with 23 others in a cell meant for 14. Ozturk says constant exposure to dust and inadequate ventilation sparked more than a dozen asthma attacks — after having previously had only about 13 in her entire life. Sleep was hard to come by, as motion-detecting fluorescent lights repeatedly triggered throughout the night.

Trying to justify the unjustifiable, the Trump administration has gone to slanderous extremes to vilify Ozturk. In a since-deleted social media post following her arrest, Homeland Security spokeswoman Tricia McLaughlin said “DHS + ICE investigations found Ozturk engaged in activities in support of Hamas, a foreign terrorist organization that relishes the killing of Americans.” (As an aside, note that, while some 43 Americans — including dual nationals — died in the Oct 7 attacks, there’s no history of Hamas ever setting out to target Americans.)

When protests of Israel’s tactics in Gaza erupted in 2022, Israel supporters across government, major media and social media branded all pro-Palestine protesters as Hamas supporters and antisemites. With the ascendency of the second Trump administration, that tactic has evolved from a malicious PR smear to a government-weaponized allegation that’s putting nonviolent foreign students in prisons and derailing their lives — all in service to a foreign country.

In a partial reversal of her appalling treatment, Ozturk was released from confinement on May 9 on the orders of a federal judge, who also denied the government’s wish to make her wear an ankle monitor. However, her troubles are far from over: In addition to the enduring harm of a six-week interruption of her academic pursuits, she is still targeted for deportation.

When DHS initially leveled the “activities in support of Hamas” accusation against Ozturk, many people assumed the government must have something on her other than an essay in a student newspaper. However, as the weeks ground on, the government never pointed to anything else, something US District Judge William Sessions noted when he ordered her to be released from her cage in Louisiana :

I suggested to the government that they produce any additional information which would suggest that she posed a substantial risk. And that was three weeks ago, and there has been no evidence introduced by the government other than the op-ed. That literally is the case. There is no evidence here...The court finds that Ms. Öztürk has raised a substantial claim of a constitutional violation.

Judge Sessions called Ozturk’s seizure “a traumatic incident” and said “her continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens.” That is most certainly the Trump administration’s goal.

Falling for Rubio’s dishonest portrayal of his prey and failing to scrutinize the facts, many so-called “conservatives” have enthused over his drive to deport anti-Israel activists and rushed to defend it. In their flimsiest argument, you’ll find them claiming Ozturk and others have no right of free speech because they’re not US citizens. That hollow attack rests on a fundamental misunderstanding of rights — one that wrongly views rights as government-granted privileges, rather than something that springs from one’s humanity. As I’ve explained elsewhere at Stark Realities, the Constitution’s Bill of Rights isn’t a granting of rights, it’s a prohibition against government interference with pre-existing rights shared by everyone on Earth.

Employing a quintessential straw man argument, Rubio and others also say “nobody has a right to a visa.” The controversy has never been about any mythical entitlement to visas — it’s about the morality and constitutionality of using visa revocations as a means of punishing and suppressing expression of certain political beliefs.

To mete out that punishment, Rubio and the Trump administration are exploiting the Immigration and Nationality Act of 1952, which recklessly empowers the secretary of State — a single individual — to deport foreigners the secretary deems “adversarial to the foreign policy and national security interests” of the United States. The law provides no elaboration on that standard, much less any provision for its application with any semblance of due process for the affected individual.

Invoking that provision, the administration told a court that DHS and ICE determined Ozturk “had been involved in associations that ‘may undermine U.S foreign policy by creating a hostile environment for Jewish students and indicating support for a designated terrorist organization’ including co-authoring an op-ed that found common cause with an organization that was later temporarily banned from campus.”

First, note how tangential and tenuous the opening and concluding allegations are. The government says Ozturk is being targeted for unspecified “associations,” and because her stance on Israel merely overlaps with the stance of a campus group that was only temporarily banned.

Next, we see the Trump administration dishonestly saying Ozturk “indicat[ed] support for Hamas” by writing an op-ed calling for Tufts to say Israel is committing war crimes, and to divest from the country. The op-ed never mentions Hamas or Oct. 7 or even implicitly endorses the group or its tactics, and there’s been no allegation of any other form of her supposed “support for Hamas.”

The administration also employs the Israeli-propagandist idea that criticism of the State of Israel — a political entity — creates a “hostile environment” for Jewish students. That notion is itself a form of bigotry — as it presumes all Jews endorse Israel’s actions. Of course, that presumption is belied by the significant presence of Jewish students in many protests of Israel’s conduct in Gaza. Meanwhile, the notion that pro-Israel Jews should be protected from hearing contrary views is wildly hypocritical from an administration that — in regard to other topics — has rightly targeted censorship meant to prevent so-called “snowflakes” from having their feelings hurt.

Defenders of the administration’s conduct are compelled to do more than point to its supposed legality under a 1952 law. From FDR putting Japanese-Americans in concentration camps to Woodrow Wilson jailing opponents of the draft, there’s a difference between legality and morality and bona fide constitutionality. Meanwhile, Ozturk’s ongoing challenge of her arrest and pending deportation may well reset the bounds of what’s legal under the Immigration and Nationality Act, with the courts potentially ruling it’s unconstitutional to revoke a visa over the expression of an opinion.

Finally, even the most ardent backers of the Israeli government should recognize that the use of the Immigration Act to round up and deport people whose views are inconsistent with the current administration’s foreign policy threatens to set a dangerous precedent — one that could see a future, Israel-hostile White House seizing, jailing and deporting foreign students who advocate US aid to Israel.

Over his political career, Rubio’s unwavering dedication to the agenda of the State of Israel has earned him a wealth of campaign contributions: Between 2019 and 2024, his largest and third-largest donors were the Pro-Israel PAC and the Republican Jewish Coalition. Those donors are again cashing in as their mercenary carries out a ruthless and deceitful drive to suppress anti-Israel, pro-Palestinian speech.

Consistent with the broader campaign of mass character-assassination that Israel’s advocates have long directed against critics of Israel, Rubio has repeatedly smeared Ozturk by insinuating that she is guilty of behavior that neither the federal government nor anyone else has accused her of, and even implying she is insane. For example, here’s what Rubio said at a March press conference:

We revoked her visa…and here’s why…If you apply for a visa to enter the United States and be a student and you tell us that the reason why you’re coming to the United States is not just because you want to write op-eds, but because you want to participate in movements that are involved in doing things like vandalizing universities, harassing students, taking over buildings, creating a ruckus, we’re not going to give you a visa….Every time I find one of these lunatics, I take away their visa. We’re looking every day for these lunatics that are tearing things up.

Challenged last week in a House Foreign Affairs hearing, Rubio said he “proudly” revoked Ozturk’s visa, defiantly adding “we’re going to do more of them.” Refusing to answer pointed questions about the constitutionality of deporting Ozturk for writing an op-ed, Rubio again reflexively resorted to maliciously dishonest hyperbole, saying “We’re revoking the visas of any lunatics we can identify.”

Ozturk is one of an unknown number of foreign, Palestinian-sympathizing students targeted for deportation by the Trump administration, which is providing very little transparency about the individuals concerned or specific rationales for the revocation of their visas.

The censorship blitz is disturbing enough on its face, but there’s another dimension that makes it even more sinister: In selecting Ozturk and other foreign students for persecution, the Trump administration is apparently heeding the suggestions of two shadowy and menacing pro-Israel organizations that use intimidation tactics on Israel’s behalf: Canary Mission and Betar.

According to its website, Canary Mission “documents individuals and organizations that promote hatred of the USA, Israel and Jews on North American college campuses and beyond.” (Including “the USA” in its mission statement is dishonest pandering; listing it first is a joke.) In practice, Canary Mission works to silence Israel’s critics by using false allegations of antisemitism, doxxing, and the threat of career and reputational harm that could come from landing on its internet blacklist.

In one of the most unsettling incidents attributed to the group, two men in canary costumes stood silently in a George Washington University lobby in 2018 as the student government was set to vote on an Israel divestment resolution. In the days before the vote, Canary Mission flyers posted on campus warned “THERE ARE NO SECRETS. WE WILL KNOW YOUR VOTE AND WILL ACT ACCORDINGLY.”

Shortly after Ozturk’s arrest, Canary Mission posted a triumphant social media thread, saying “sources point to her Canary Mission profile as the primary cause.” That profile is thin. Linking to her Tufts op-ed, Canary Mission only claims she “engaged in anti-Israel activism in March 2024” (the month the op-ed was published) and is “a supporter of the Boycott, Divestment, Sanctions (BDS) movement.”

Betar brags that it is directly providing a list of targets to the administration. Maliciously referring to Ozturk and other peaceful activists as “jihadis,” the group took credit for her arrest: “She was on our list. Many more jihadis are. We will be making a new submission Monday with approximately 1800 more jihadis.”

Betar is a Zionist youth group founded in 1923 by Ze’ev Jabotinsky, who promoted an expansive vision of Israel that would see it take over not only the West Bank and Gaza, but part of Jordan too. The group’s ideology, rhetoric and embrace of vandalism, theft and vigilantism prompted even the staunchly Zionist Anti-Defamation League to list it among extremist and hateful groups.

An appalling incident in February illuminates the enormity of Betar’s Jewish-supremacist fanaticism. When a journalist posted a long list of names of Palestinian infants killed in Israel’s war on Gaza, Betar’s official account replied, “Not enough. We demand blood in Gaza!”

The group has also endorsed the ethnic cleansing of Palestinians from Gaza. The irony is sickening: The Trump administration arrested Ozturk for saying Israel is committing genocide in Gaza — and the recommendation to revoke her visa came from a group that calls for genocide in Gaza.

While Betar and Canary Mission seem to be playing a key role in identifying targets, the broader scheme of weaponizing the Immigration and Nationality Act by smearing Israel’s critics as pro-Hamas antisemites who undermine US foreign policy was the brainchild of the Heritage Foundation. According to New York Times, the group in 2023 launched Project Esther, “an ambitious plan to fight antisemitism by branding a broad range of critics of Israel as ‘effectively a terrorist support network,’ so that they could be deported, defunded, sued, fired, expelled, ostracized and otherwise excluded from what it considered ‘open society’.”

Achieving new heights of hypocrisy, Rubio this week declared that “free speech…legally enshrined in our constitution, has set us apart as a beacon of freedom around the world.” His soaring rhetoric came as he announced a new policy that will deny visas to “foreign officials and persons who are complicit in censoring Americans.”

While Ozturk’s story has received significant media attention, the same mainstream media that relentlessly promoted the 2020 Russia-collusion hoax is now failing to cast the Trump administration’s campaign against pro-Palestinian campus activism for what it is: The unconstitutional suppression of the human right of free expression in appalling subservience to a foreign government and its domestic, America-Second accomplices.

In case you’re inclined to shrug off Rubio’s campaign because its victims are foreigners, make no mistake — there are people inside and outside the US government who would love to see American citizens similarly seized and shackled for criticizing the State of Israel. Over the past several years, those forces have been aggressively pushing various means of using government power to suppress Israel’s critics:

• The proposed Antisemitism Awareness Act, which would use an expansive definition of antisemitism to inflict penalties on schools that allow various forms of criticism of Israel to be expressed on their campuses — even by American citizens
• The successful enactment of state laws requiring contractors to certify that they will not participate in boycotts of Israel — alongside repeated attempts to pass a similar federal law
• Lawfare in the form of bogus lawsuits filed against universities, accusing them of failing to prevent “antisemitic incidents” that are simply expressions of opinions about Israel that Zionists revile
• The Trump administration’s withdrawal of federal education funding from schools that tolerate “antisemitism” — with that term purposefully misdefined to encompass criticism of the Israeli government

Amid Americans’ steadily-shrinking support for Israel — even 50% of Republicans under 50 years old now view the country unfavorably — those forces are only going to grow more desperate and brazen in their assault on free expression in the United States. It’s the patriotic duty of every American — including Israel’s backers and critics alike — to resist them every step of the way.

Reprinted with permission from Stark Realities with Brian McGlinchey.
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Papal conclaves are a big deal. The one that elected Pope Leo XIV was only my third, as it was for everyone just shy of 50 years old. And, barring tragedy for either Pope Leo or myself, I only have maybe two or three more. A papal conclave is the kind of major event a person only experiences a handful of times in their life. Such experiences take on a special significance in part because of the…

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Editors’ Note: In recognition of the 100th anniversary of Pierce v. Society of Sisters, this article is the first in a three-part series on religious freedom. 

“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. 

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. 

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. 

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