Preserving the Exit Option: State Public Education Mandates and Parental Rights in Education

Nicole Stelle Garnett* & John A. Meiser**

In the decades leading to the Supreme Court’s decisions in Meyer v. Nebraska¹ and Pierce v. Society of Sisters,² battles over parents’ rights to direct how, where, and what their children would be taught were waged on two fronts: The first front centered on public schools, and specifically, parents’ demands for accommodations to and exemptions from curricular material and school policies that they found objectionable on religious grounds. The second front focused on parents’ ability to choose private, religious schools for their children, and their demands that the state subsidize those choices. Opponents of public school accommodation and private-school subsidization believed—and argued vehemently—that both would undermine the government’s ability to form good citizens through the medium of public schools.

Today, one hundred years after the Court put hard limits on the government’s ability “to standardize its children”⁴ in Meyer and Pierce, these same battles over parents’ rights to control how, where, and what their children are taught are fought on the same fronts. In school board meetings and courthouses, parents demand that their children be exempted from curricular content and public-school policies that they find objectionable on religious grounds.⁵ And battles over the scope and scale of publicly funded K–12 educational options other than traditional public schools remain a perennial feature of education policy debates.⁶

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© 2025 Nicole Stelle Garnett & John A. Meiser. 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.

*John P. Murphy Foundation Professor of Law, University of Notre Dame.

**Associate Clinical Professor of Law and Director, Lindsay & Matt Moroun Religious Liberty Clinic, University of Notre Dame. We are grateful for the research assistance provided by law students Cameron Grinnell, Will Vickery, and Nate Wertjes. A portion of this Essay is adapted from amicus briefs filed by the Notre Dame Law School Religious Liberty Clinic in litigation challenging the constitutionality of Ohio’s voucher programs and California’s special-education funding. Several law students—including Tim Borgerson, Will Clark, Ross D’Entremont, Dan Loesing, Olivia Lyons, and Tim Steininger—assisted in the drafting of those briefs.

1 Meyer v. Nebraska, 262 U.S. 390 (1923).

2 Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).

4 Pierce, 268 U.S. at 535.

5 See, e.g., Mahmoud v. McKnight, 102 F.4th 191, 201 (4th Cir. 2024) (“Parents contend that [state and federal law] require that they have notice and the opportunity to opt out ‘of classroom instruction on . . . sensitive religious and ideological issues.’” (quoting Verified Complaint at 6, Mahmoud v. McKnight, 688 F. Supp. 3d 265 (D. Md. 2023) (No. 23-1380))); Cal. Parents for the Equalization of Educ. Materials v. Torlakson, 973 F.3d 1010, 1020 (9th Cir. 2020) (“[A group of Hindu parents] argu[es] for a broad due process right to challenge [public-school] materials that they view as religiously bigoted.”); Tatel v. Mt. Lebanon Sch. Dist., 752 F. Supp. 3d 512, 525–26 (W.D. Pa. 2024) (“This case is about the extent of constitutional rights of parents of young children in a public elementary school to notice and the ability to opt their young children out of noncurricular instruction on transgender topics.”); Libby Stanford, What the Push for Parents’ Rights Means for Schools, Educ. Wk. (Feb. 22, 2023), https://www.edweek.org/leadership/what-the-push-for-parents- rights-means-for-schools/2023/02 [https://perma.cc/CK59-AV4Y] (“[A] protest [in Ocean City, N.J.] led the local city council to adopt a parents’ bill of rights policy that gives parents the power to . . . opt their kids out of curriculum ‘that the parent believes is in conflict with [their] conscience or sincerely held moral or religious beliefs.’” (second alteration in original) (quoting Ocean County, N.J., Resolution 2022000684 (May 18, 2022)).

Last June, the U.S. Supreme Court held that, in some circumstances, the First Amendment requires that parents be allowed to opt their children out of certain religiously objectionable lessons in public schools—a decision that is sure to foster even more claims of this sort. See generally Mahmoud v. Taylor, 145 S. Ct. 2332 (2025).

6 See, e.g., Amanda Geduld, Public Funds, Private Schools: A New Analysis of the Early Returns in Eight States, THE74 (Oct. 23, 2024), https://www.the74million.org/article/public- funds-private-schools-a-new-analysis-of-the-early-returns-in-eight-states/[https:// perma.cc/NQ2U-K664] (“For decades, public funds have been used to subsidize private schooling, but recent debates over the practice have been reinvigorated as the scope of these programs has soared.”); Colyn Ritter, Support for School Choice Policies Remains High, Edchoice (Oct. 2, 2024), https://www.edchoice.org/support-for-school-choice-policies-remains- high/ [https://perma.cc/5458-JC5P] (“While the demand for school choice in America has been consistently strong, . . . there has been much debate on how broad these programs should be.”).