Opinion
Law & Courts Opinion

How the Supreme Court Is Making Public Education Itself Unconstitutional

The high court recently took a step toward effectively outlawing public schools
By Johann Neem — July 09, 2025 5 min read
Photo illustration of Supreme Court building and U.S. Constitution.
  • Save to favorites
  • Print

On June 27, the Supreme Court released its decision in Mahmoud v. Taylor. The decision has not received the attention it merits. A close reading of the conservative majority’s opinion suggests that the high court is moving toward determining that public schooling violates the First Amendment of the Constitution. The decision could mean the end of public education in America.

The case concerned the Montgomery County, Md., board of education’s decision to integrate LGBTQ+ inclusive readings into its literacy curriculum to further its goal of representing diversity. At first, the district permitted parents to opt out their children, but when that policy became unworkable, it decided that parents would no longer be notified when the books were being used.

In response, several parents sued, arguing that exposing their children to the books threatened their right to raise their children according to their faith.

See Also

Demonstrators are seen outside the Supreme Court as oral arguments were heard in Mahmoud v. Taylor on April 22, 2025, in Washington, D.C. The case contends that forcing students to participate in LGBTQ+ learning material violates First Amendment rights to exercise religious beliefs.
Demonstrators stand outside the Supreme Court as oral arguments are heard in <i>Mahmoud</i> v. <i>Taylor</i> on April 22, 2025, in Washington. The case contends that forcing students to be exposed to LGBTQ+ curricular material violates parents' First Amendment rights to exercise their religious beliefs.
Tom Williams/CQ Roll Call via AP Images
Law & Courts Supreme Court Sides With Parents in LGBTQ+ Curriculum Opt-Out Case
Mark Walsh, June 27, 2025
7 min read

The U.S. Supreme Court sided with the parents. The court’s majority opinion concluded that exposing students to progressive ideas about marriage and gender placed an unconstitutional burden on parents’ religious liberties. Writing for the court’s six conservative justices, Justice Samuel A. Alito Jr. argued that the determining precedent is Wisconsin v. Yoder (1972), in which the court decided that a law mandating all children attend high school violated the religious liberties of the Amish community.

The majority determined that Yoder, far from an isolated case concerning a discrete community, is a general precedent applicable to all parents. In other words, all parents are Amish now, 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.

What, then, constitutes a burden on religious freedom? The court first disputed the school board’s claim to be merely exposing students, arguing that the record showed that the school board’s goal was to teach students to support same-sex marriage and gender fluidity.

If the court had stopped there, that would have been one thing, but Alito makes an additional move, arguing that even exposure to ideas that go against parents’ faith could be unconstitutional. The issue is not whether public schools coerce students’ beliefs but whether introducing an idea might undermine parents’ religious freedom. “We reject this chilling vision of the power of the state to strip away the critical right of parents to guide the religious development of their children,” Alito wrote.

In her dissent, signed by the three liberal justices, Justice Sonia Sotomayor responds that the court’s majority decision is untenable. “Given the great diversity of religious beliefs in this country,” she writes, “countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs.”

Sotomayor predicts the result of the decision will be “chaos for this Nation’s public schools.” “Never, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim.” Ultimately, Sotomayor concludes, “to presume public schools must be free of all such exposure is to presume public schools out of existence.”

Sotomayor’s objection is ultimately practical: The majority’s opinion is so broad and its criteria so loose that public schools will not be able to function. Instead of elected school boards working things out locally, courts will ultimately adjudicate all curricular decisions at great cost of time and money.

See Also

Man and woman waiting around speech bubble hole
E+/Getty
Law & Courts Opinion What the Supreme Court Case on LGBTQ+ Books Reminds Us About Parents’ Rights
Jamie Kudlats & Christopher D. Thomas, May 15, 2025
5 min read

Within the court’s majority opinion, however, lies a deeper threat to the existence of public schools. Because the court determined that exposure to objectionable material violates parents’ rights, policies involving that exposure are subject to “strict scrutiny,” the highest standard of judicial review. This level of judicial review requires that the government must demonstrate that the policy in question both serves an interest of the “highest order” and is “narrowly tailored” to achieve that interest.

The Supreme Court would, no doubt, agree that an educated citizenry is a public interest “of the highest order.” What the court does not address is whether public school systems are “narrowly tailored” to achieve the state’s goals.

Today, elected officials at the state and local levels choose the curricula that their schools will teach. But in effectively determining that any curriculum will violate parents’ rights, the court took a step toward outlawing public schools.

What might the court deem a more “narrowly tailored” policy to achieve the state’s goals of an educated citizenry? Although the court does not say so, the answer may be a private school voucher program in which parents choose schools that fit their faith rather than common schools that serve an entire community.

One cannot exaggerate how dangerous and unhistorical this ruling is. The founding generation considered increasing access to education one of government’s most important functions, enshrining it in the young country’s revolutionary state constitutions. In the 1787 Northwest Ordinance, the federal government even stated that “schools and the means of education shall forever be encouraged” and followed through by requiring land be set aside in new territories to generate revenue for public schools.

Today, every state constitution mandates a public education system, with many explicitly framing education as one of the state’s highest obligations.

All this history is at risk of being jettisoned. Instead, the court has determined that the need to protect students from being exposed to ideas hostile to their family’s religious beliefs trumps everything else. Under the court’s new rules, no curriculum could ever be constitutional unless parents are always informed in advance and can protect their children from anything objectionable to their specific religious beliefs.

Given this burden, states may be forced to find a more “narrowly tailored” approach to educating citizens. And before we know it, one of America’s greatest successes, one of the most popular American institutions, and one of the few we still share in common, will be gone.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
College & Workforce Readiness Webinar
Smarter Tools, Stronger Outcomes: Empowering CTE Educators With Future-Ready Solutions
Open doors to meaningful, hands-on careers with research-backed insights, ideas, and examples of successful CTE programs.
Content provided by Pearson
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
Improve Reading Comprehension: Three Tools for Working Memory Challenges
Discover three working memory workarounds to help your students improve reading comprehension and empower them on their reading journey.
Content provided by Solution Tree
Recruitment & Retention Webinar EdRecruiter 2026 Survey Results: How School Districts are Finding and Keeping Talent
Discover the latest K-12 hiring trends from EdWeek’s nationwide survey of job seekers and district HR professionals.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Appeals Court Blocks Ruling Bolstering Parental Rights Over Gender Identity
A federal appeals court blocked a groundbreaking ruling over the disclosure of students' gender identities.
4 min read
Students carrying pride flags and transgender flags leave Great Oak High School on Sept. 22, 2023, in Temecula, Calif., after walking out of the school in protest of the Temecula school district policy requiring parents to be notified if their child identifies as transgender.
Students carrying pride flags and transgender flags leave Great Oak High School on Sept. 22, 2023, in Temecula, Calif., after walking out of the school in protest of the Temecula school district policy requiring parents to be notified if their child identifies as transgender. But many districts in California follow a state policy limiting when schools can inform parents about a student's gender identity without the student's consent.
Anjali Sharif-Paul/The Orange County Register via AP
Law & Courts Teachers' Union Sues Texas for Probing Teachers' Charlie Kirk Posts
Teachers' free speech rights were violated by the state agency, the lawsuit alleges.
Turning Point USA Founder Charlie Kirk speaks during a campaign rally, Oct. 24, 2024, in Las Vegas.
Turning Point USA Founder Charlie Kirk speaks during a campaign rally, Oct. 24, 2024, in Las Vegas.
John Locher/AP
Law & Courts Appeals Court Halts Ruling Letting Teachers Disclose Students' Gender Identity
A federal appeals court has temporarily paused enforcement of the ruling but has not yet decided whether to grant a longer-term stay.
Kristen Taketa, The San Diego Union-Tribune
3 min read
Students carrying pride and transgender flags leave Great Oak High School in Temecula, Calif., on Sept. 22, 2023, after walking out of the school in protest of the Temecula school district policy requiring parents to be notified if their child identifies as transgender.
Students carrying pride and transgender flags leave Great Oak High School in Temecula, Calif., on Sept. 22, 2023, after walking out of the school in protest of the Temecula school district policy requiring parents to be notified if their child identifies as transgender.
Anjali Sharif-Paul/The Orange County Register via AP
Law & Courts Schools Can’t Bar Teachers From Telling Parents If Kids Are Transgender, Judge Rules
The injunction bans any public school employee from misleading parents about their child’s gender presentation at school.
Kristen Taketa, The San Diego Union-Tribune
5 min read
Teacher’s aide Amelia Mester, wrapped in a Pride flag, urges Escondido Union High School District not to have employees notify parents if they believe a student may be transgender in November 2025. A policy on the issue in the city’s elementary school district is the subject of a federal class-action lawsuit in which a judge just sided against the district.
Teacher’s aide Amelia Mester, wrapped in a Pride flag, urges Escondido Union High School District not to have employees notify parents if they believe a student may be transgender. A policy on the issue in the city’s elementary school district is the subject of a federal class-action lawsuit in which a judge just ruled against the district.
Charlie Neuman for The San Diego Union-Tribune/TNS