Pierce, Don’t Say Gay Laws, and the Rise of Illiberal Authoritarianism

Maxine Eichner*

In the last four years, legislators and policymakers in red states have passed a wave of measures directed at reforming public schools’ policies and curricula. Some of these measures deal with issues of sexual orientation and gender identity. Others restrict educators’ ability to teach issues of race. Still other initiatives seek to insert Christianity into the schools. While a number of these reforms have been passed under the label of “parental-rights laws,” these measures actually do little to foster the autonomy of parents to direct their children’s upbringing. Instead, they are muscular attempts by state governments, themselves, to impose their own imprint of proper development on school children; to indoctrinate students with particular norms and beliefs that legislators favor; and to limit the kind of civic education that students can receive. In this Article, I argue that while legislators and policymakers who support these initiatives often present them as fitting comfortably within the liberal democratic framework for addressing children’s education that was put in place in Pierce v. Society of Sisters, these laws should instead be recognized as active challenges to liberal democracy. To be specific, I contend these laws are better conceptualized as part of the trend of illiberal authoritarianism arising in the United States and in other western countries. I also grapple with the complicated relationship between these illiberal initiatives and Pierce v. Society of Sisters and its companion cases of the era. In brief, I assert that Pierce and its ilk sought to outlaw illiberal measures such as these but failed to incorporate the safeguards to ensure that future generations develop the necessary traits and dispositions to sustain liberal democracy. Accordingly, Pierce contained the seeds for the eventual challenge to liberal democracy that we see today. Part I describes the liberal-democratic framework for children’s education that has long dominated in the United States, and which the Supreme Court institutionalized in Pierce and its companion cases. Part II uses the example of Florida’s new laws regarding LGBTQ education—so-called “Don’t Say Gay Laws”—to show how these new enactments violate our existing liberaldemocratic framework, rather than, as they are often presented, take positions within that framework. This Part also makes the case that these laws should be considered within the rising contemporary movements toward authoritarianism that are developing both within the United States and internationally. Finally, Part III circles back to consider the extent to which weaknesses in Pierce and its companion cases helped sow the seeds for the rise of today’s assault on liberal democracy.

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© 2025 Maxine Eichner. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Graham Kenan Distinguished Professor of Law, UNC School of Law. I thank Casey Buttke and Carolyn Calder for excellent research assistance, as well as the Notre Dame Law Review for terrific work preparing this Article for print.