A federal statute denies federal funding to public school districts that fail to pass a national achievement test, while private schools perform better. In response, a state enacts a law requiring all children of elementary and secondary school age to attend public schools. What standard of review will the court apply to evaluate the constitutionality of this law?

• A. Rational basis review.
• B. Intermediate scrutiny.
• C. The law must be necessary to serve a compelling government interest.
• D. Strict scrutiny applies, and the law burdens a fundamental right, making it unlikely to be upheld.

Answer: (D)

The key concept is that when a law burdening the ability of parents to direct the education of their children triggers a fundamental liberty interest, strict scrutiny applies. Forcing all children to attend public schools eliminates parental choice to place their children in private schooling, which is a core aspect of parental rights over the upbringing and education of their children. That makes the right a fundamental one for purposes of constitutional review.

Under strict scrutiny, the government must show a compelling interest and demonstrate that the law is narrowly tailored to achieve that interest, using the least restrictive means. Here, the state’s interest might be framed as promoting uniform education or accountability, but a blanket requirement that prevents private schooling is unlikely to be narrowly tailored, especially given evidence that private schools can perform better. Therefore, the law is unlikely to survive strict scrutiny.

The other standards aren’t appropriate here. Rational basis would be too weak because a fundamental right is implicated; intermediate scrutiny is used for certain classifications like gender, not for a general parental right to educate children; and simply stating that the law must be necessary to serve a compelling interest doesn’t specify the fundamental-right framing and the strict-scrutiny standard that applies when a fundamental right is burdened.