An Existential Threat

Could the Supreme Court outlaw public schools?

Regular readers of this newsletter know that I always try to locate some glimmer of hope in these challenging times. Well, I don’t need to tell you that that task feels impossible right now. If you’ve got the sense that the threats to public education are increasingly existential, you’re not wrong. In fact, thanks to the Supreme Court, the situation may be even more dire than we fear. This summer, after SCOTUS handed down its decision in Mahmoud vs. Taylor, a case that merited far too little attention, historian Johann Neem warned that the court was veering dangerously close to outlawing public schools. I had to know more…

Jennifer Berkshire: So, let’s cut to the chase. You’ve argued that the Supreme Court is essentially making public education itself unconstitutional. What are you so worried about?

Johann Neem: We know the court has been bolstering the rights of free exercise over the past few years and has really tried to protect what they consider religious freedom from state overreach. Well, their recent decision in a case over whether parents have the right to opt-out of particular teaching or material on religious grounds continues this trend. The court here said ‘yes they do,’ on the grounds that mere exposure to material that violates a parent's religious faith is a burden on the free exercise of religion. This could end up being an existential issue for public schools because, as Sonia Sotomayor pointed out in her dissent, the very nature of school is that kids are constantly being exposed to messages that could, in theory, conflict with their parent’s religious beliefs. As she wrote, “to presume public schools must be free of all such exposure is to presume public schools out of existence.”

Jennifer: In other words, given the court’s increasingly expansive definition of religious freedom, we could end up with a situation where public education itself violates the First Amendment. Sounds bad! Before you give public school advocates yet more to be terrified about let’s talk a bit about the specifics of this case, Mahmoud vs. Taylor, because what the schools in Montgomery County Maryland were doing here–expanding the kinds of books kids read–is something all sorts of school districts are doing right now.

Johann: That’s right. The Montgomery County Public Schools had decided to incorporate a series of LGBTQ+ inclusive readings into their literacy curriculum as part of their commitment to diversifying the curriculum. At first, the district permitted parents to opt their children out of those readings, but when too many parents tried to do that they decided that the policy was unworkable. So now parents would no longer be notified when the books were being used. In response, several parents of Catholic and Muslim backgrounds sued, arguing that exposing their children to the books threatened their right to raise their children according to their faith. Initially, the lower courts decided that this was not a violation of those parents' rights. The Supreme Court disagreed.

Jennifer: For readers who aren’t fluent in SCOTUS-ese, what the court majority concluded is that exposing students to the sorts of ideas in these books–like that gay marriage is perfectly acceptable–placed an unconstitutional burden on the religious liberty of these parents. As someone who spends a lot of time in the presence of education historians, I know that we have been fighting over the respective authority of parents and schools forever. So I’m curious about how the court seems to have ended up in, well, such a decisive place.

Johann: The go-to reference in a case like this should have been West Virginia Board of Education vs. Barnette. That’s the 1943 case we’re probably all familiar with, having to do with the right of people to opt out of saying the Pledge of Allegiance. And the premise of that case was that the pledge itself wasn’t unconstitutional, it was the forced act of having to say it that was coercive. But that’s not where the majority went in this case. Instead, Justice Alito, writing for the conservative majority, argued that the relevant precedent here was the 1972 case, Yoder vs. Wisconsin. In that case, Amish parents challenged a law requiring all children to attend high school–they said that forcing their kids to attend school beyond eighth grade violated their religious beliefs. The court agreed with the Amish parents on the grounds that they were a unique community with specific beliefs that made this law a significant burden on them. What’s so alarming about the most recent case is that Alito and the majority are basically saying that all parents are Amish, with the right to require the public schools to protect their children from curricula that burdens their capacity to raise their children according to their faith.

Jennifer: This is where things get really interesting, by which I mean terrifying. Break down for us what the decision said and why everyone who believes in public education should add ‘the Amish test’ to their vocabularies.

Johann: So basically the decision made two points. One was that by assigning these readings, the Montgomery County Schools were trying to mandate particular beliefs about gay marriage and gender identity and, regardless, the district’s claim that it was merely exposing students to ideas didn’t matter because mere exposure triggers the Amish test. But the case is not limited to that, which is why it's so scary. The court is arguing that a fundamental constitutional right is at issue here, in this case, the free exercise of religion and parents' rights to raise their kids according to their faith. So we’ve ended up in a situation in which even exposure to ideas that go against parents’ faith could be unconstitutional. Should I keep going?

Jennifer: You need to tell us about ‘strict scrutiny’ and ‘narrow tailoring,’ don’t you? Why don’t you start with the former.

Johann: So strict scrutiny comes into place when a constitutional right is being threatened or is being burdened by the state. Therefore, the courts have ruled, not unreasonably, that if you're going to burden someone's constitutional rights, there has to be a really good reason for it, right? And because the court determined that exposure to objectionable material violates parents’ religious freedom, meaning that it’s a First Amendment question, policies involving that exposure are subject to “strict scrutiny”–the highest standard of judicial review. That means that the government has to demonstrate that the policy in question serves an interest of the “highest order” AND also be “narrowly tailored” to achieve that goal. This is where I started thinking, “wait a second - what’s really going on here?” Because while the Supreme Court would probably agree that having an educated citizenry is an interest of the “highest order,” is public education narrowly tailored to achieve that interest? I wouldn't be surprised to hear it argued in various courts around the country that actually common schools that compel attendance are not narrowly tailored, they're actually expansive.

Jennifer: I want to return to Sotomayor’s dissent, which you mentioned at the start of this conversation. She really seemed to understand that this decision will have serious practical implications for public schools.

Johann: Sotomayor wrote that this decision will create “chaos” for the public schools. And that's a practical argument because, in a religiously pluralistic society, almost anything could violate some parents’ religious beliefs–even teaching patriotism. If all of those end up in courts, what she points out is that any curriculum effectively becomes untenable. How do you even have a curriculum if every parent can exercise veto power over democratically elected school boards and state legislatures? There’s also a financial issue here if school boards are constantly being taken to court. So Sotomayor raises a practical question, but she also says that this is an existential issue for public schools because the court has undermined public schools by making it impractical to run them.

Jennifer: One of the great ironies of this case is that in the name of parents’ rights, the Supreme Court has just taken a hatchet to the idea that the public has any say over the content of public education. You’ve been making the case that we need to view this through the lens of privatization–that privileging the rights of certain parents in this way ends up privatizing the public. Explain.

Johann: The problem here is that we actually do belong to a village. And a democracy is a collective enterprise, and sometimes we're in the majority, and sometimes we're in the minority. And if mere exposure to ideas are violations of constitutional rights, then we have no capacity to engage in democratic processes around education. What the court is telling us is that parents, not citizens, should determine the full content of their children's education. It's not that parents have no rights or no claims. I'm a parent. It's that the court suggests that the community, the democratic civic community, has no claim over the socialization of the next generation. And so I think that's a real problem. It basically privatizes the public. It privatizes not just the common schools, it's actually conceptually privatizing the commons themselves by insisting that there are no commons. I think that presumption, that we don’t have a commons that we engage in collectively, is a really dangerous way to approach democratic politics.

Johann Neem is Professor of History at Western Washington University and the author of Democracy’s Schools: The Rise of Public Education in America.