After Dobbs: Is Education Next?

By Christopher Manion Published on July 11, 2022

In the 50 years since Roe v. Wade, discussion of advances in the understanding of the early stages of unborn life have been forbidden in America’s public square.

The truth didn’t matter. Roe ruled.

The proclamation of Roe as the new reality gave the abortion lobby free rein not only in the law, but in every aspect of the public conversation — including education.

And then came Dobbs.

Consider Justice Alito’s key finding:

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, he writes. … Wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.

“Abortion” does not appear in the Constitution.

And neither does “education.”

But that hasn’t stopped the Supreme Court from using its “raw judicial power” to savage public education for more than half a century.

Orwell lives. The same Administration that can’t tell a “man” from a “woman” now insists that “sex” will henceforth be translated as “gender.”

In one case after another, the Court has gradually removed any hint of religious faith from every government-funded classroom.

Almost by default — if not design — secularism has been consecrated as the sole religion permitted in public schools.

“Separation of Church and State!” has been declared a mantra as absolute as “a woman’s right to choose!”

And that claim has a long history.

Do Children Belong To The State?

In the mid-19th century, a generation of educators from Horace Mann in Massachusetts to John Swett in California led the development of the system of public education in the United States. As the movement grew, the tension between the government-funded public school system and religious schools grew with it.

Swett, California’s Superintendent of Education in the 1860’s, insisted that “children belong to the state, not to the parents.”

“The vulgar impression that parents have a legal right to dictate to teachers is entirely erroneous,” Swett complained.

So logically, parents should have no right to review the performance of teachers in their community, nor should parents intrude in the education of their children.

“[T]he child should be taught to consider his instructor, in many respects, superior to the parents in point of authority,” he insisted.

John Swett took that claim seriously. He founded the California Teachers Association (CTA), which is today one of the nation’s most powerful, and politically radical, school unions.

Today the CTA’s highest annual award bears Swett’s revered name.

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Swett was profoundly anti-Catholic, but that wasn’t unusual. In the 19th century, anti-Catholicism thrived, and it grew more fervent with the wave of millions of European Catholic emigres and the schools that went up alongside their neighborhood churches.

Many prominent civic leaders, educators, and politicians opposed the very existence of Catholic “parochial” schools, and they wrote that opposition into state law.

In fact, it wasn’t until the Supreme Court decided Pierce v. Society of Sisters in 1925 that the right of parents to send their children to schools outside the country’s public school systems was universally acknowledged.

A generation later, with McCollum v. Board of Education in 1948, the next stage of the battle began.

McCollum nullified the policy of an Illinois school district which allowed religious instruction to be provided in the state’s public schools, since attendance at those schools was compulsory.

As one legal observer noted at the time, the decision “outlawed the approval by a state’s local school board of any activity during school hours which is calculated to promote the interest of public school children in the existence and power of God.”

‘One Nation Under God’ — Except For Schools

It was only a matter of time before the Court addressed issues like Bible reading and school prayer in the public school curriculum itself.

In most of these decisions, religion lost.

They just kept on coming, banning the Ten Commandments on schoolroom walls, forbidding a moment of silence “for meditation or voluntary prayer” in classrooms, and prohibiting a clergyman from offering an opening invocation and a closing benediction at a graduation ceremony.

Moreover, thanks to LBJ’s “Great Society” and Jimmy Carter’s Department of Education, public education became more federalized. And with that federalization, public education has become even more radicalized.

One can debate the quality of teachers in today’s public school classrooms (see arguments pro and con), but there’s no denying that the content is now both secular and radical.

A recent example will suffice.

In May, the Biden Administration’s Department of Agriculture (DoA) issued an edict announcing that it will change how it interprets Title IX prohibitions on discrimination based on sex “to include discrimination based on sexual orientation and gender identity.”

Orwell lives. The same Administration that can’t tell a “man” from a “woman” now insists that “sex” will henceforth be translated as “gender.”

And then comes the blackmail: Schools that don’t comply lose all their federal funding.

That’s right. The “raw judicial power” identified by Justice Alito has been expanded to include raw executive power. The casual edict of a federal bureaucrat can overturn federal legislation, defy federal court decisions, and magically transform the meaning of words, even as it avoids public accountability.

A Historic Opportunity

Several states have already passed landmark legislation providing unprecedented freedom, including public funding, for schools outside the public school system. Predictably, the powerful government school unions and their allies have stridently opposed such measures.

But now those forces face another challenge: In the Carson v. Makin decision last month, Chief Justice Roberts wrote that “A State need not subsidize private education, [b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” To do so, he continued, “effectively penalizes the ‘free exercise’ of religion.”

Dobbs has returned the issue of abortion to the states and to the people.

And when joined with Dobbs, Carson v. Makin has done the same for education — including religious education.

Private schools, including religious schools, can now receive funding from the state. And so can home-schooling families.

This is a new era of freedom for education in America.

We’re going to have to fight to keep it.


Christopher Manion earned a Ph.D. in government from Notre Dame. For many years he was the staff director of the Senate Foreign Relations Subcommittee on the Western Hemisphere, chaired by the late Sen. Jesse Helms, R-N.C.

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