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It goes without saying that “don’t say gay” legislation is harmful to children. Laws like the one recently enacted in Florida—which, among other things, prohibits elementary schools from encouraging “classroom discussion about sexual orientation or gender identity”—will be most painful for children who identify as LGBTQ, or whose parents do. Similarly, the kids slapped in the face by legislation that disallows mention of “critical race theory” in schools—meaning discussion of race or structural racism now or in American history—are students of color, immigrants, and other racial or ethnic Others.
Of course, the omissions and distortions these laws effect will harm all students in their states. They will also terrify teachers into silence and encumber school administrations with so much procedural rigamarole that they’ll have little time left to teach. The consequences reverberate nationally, “for both American education and democracy,” states PEN America’s report “Educational Gag Orders: Legislative Restrictions on the Freedom to Read, Learn, and Teach.” Where the laws have been enacted—at publication in September 2021, there were eleven in nine states—they are already “distorting the lens through which the next generation will study American history and society and undermining the hallmarks of liberal education that have set the U.S. system apart from those of authoritarian countries.”
Cleverly, the right has appropriated the left’s language of harm to claim that it is safeguarding students from discrimination and trauma. For instance, a rule adopted by Alabama’s state education board prohibits classroom discussion of “concepts that impute fault, blame, a tendency to oppress others, or the need to feel guilt or anguish to persons solely because of their race or sex.” Translation: no white, straight, or cisgender child should be troubled by injustice against their nonwhite or non-straight peers, and no student should be induced to reflect on their own responsibility to challenge this injustice.
In evincing students’ bruised feelings, these laws echo the historic justification for censorship: that certain words, images, and ideas might harm children. Given this ancestry, then, it is striking that the titles of these teacher-surveillance bills omit a seminal word: “child.”
For example, Florida’s law is named “An act relating to parental rights in education.” Mississippi, Missouri, and other states have proposed what they call parents’ “bills of rights.” Hawaii’s legislation posits a “fundamental rights of a parent to direct the upbringing, education, healthcare, and mental health care of a minor child”; similar or identical language appears in laws across the country. The bills mandate “educational transparency,” which means that schools must provide parents information about nearly everything they do—including curricula, textbook and library acquisitions, exams, surveys, invited speakers, and records of interaction with school nurses or counselors. Armed with this information, parents are licensed not only to opt their kid out of a given activity but also to report or sue teachers engaging in it.
The imperiled subject of “don’t say” legislation, in other words, is the parent. If the child’s interest is mentioned, it is inserted as a kind of subordinate clause. The syntax of Louisiana’s latest bill expanding parental prerogatives indicates how awkward the fit is: “[P]arents have the right that a school shall not discriminate against their children by teaching them that they are currently or destined to be oppressed or be oppressors based on their race or national origin; and to provide for related matters.”
The elision of children’s interests and parents’ rights is not just bad grammar, however. It is an expression of conservative “pro-family” ideology, which posits the family as an indivisible unit where everyone’s interests are unanimous. Within this fantasy resides what law professors Anne C. Dailey and Laura A. Rosenbury call a “romantic vision of parent-child unity.” As in any relationship, disharmony may arise, but the Christian fundamentalism that overlaps the parental rights movement does not countenance it. “Children, obey your parents in all things,” the Bible commands. “Wives, submit to your husbands as to the Lord.” In Christian fundamentalist families, usually with the wife’s enthusiastic consent, the family speaks with one voice, and that voice is the man’s.
Marital coverture—which recognizes the husband as the sole legal person in a marriage and grants him unchallenged control over his wife and custody of their children—was abolished in the mid-nineteenth century, write Dailey and Rosenbury in the Duke Law Journal. But child coverture endures. U.S. law allows parents to decide where their children are schooled, whether and where they worship, and with whom they associate. Parents may isolate children altogether from relations outside the home. The courts have upheld a parental right to administer corporal punishment, so long as no serious or permanent injury is sustained. At the same time, the state offers scant support to parents without means, then conflates poverty with child neglect or abuse and too readily suspends or terminates those “fundamental” rights of parental nurture and control. (As this legislation issues from Republicans, a parallel effort by Democrats aims to provide legal representation and transparency to parents threatened with termination of their parental rights by child welfare authorities. Such proposals do not include spying on teachers or cleansing classrooms of queer influence.)
It is no wonder cultural conservatives are so anxious about what goes on at school. For in the romance of parent-child unity, the school is the illicit lover—or, in the language of sex panic, the gay recruiter or the pedophilic groomer. Schools are places where kids can try out different identities and beliefs, which may diverge radically from their families’. This is particularly true for queer and trans kids. According to True Colors United, as many as 40 percent of homeless youth are LGBTQ-plus, and their most common reason for leaving home is familial rejection. While school is always a disciplinary institution—in poor communities of color, students are treated like criminals—it also offers at least a part-time sanctuary and a portal to freedom (and not just from conservative families; parental rights is a politicized Republican version of bourgeois liberal helicopter parenting). As parents learned poignantly during the pandemic, for most children school is social life: the nexus of friendship, love, alliances, and conflicts. When home is not safe or loving, a lucky kid may find their people at school, among whom are adults who are not their parents.
In crusades against what it views as unpatriotic or immoral public-school curriculum, the right has long framed the problem as government usurpation of parental authority. “The struggle continues between those who believe in parental responsibility and those who seek to seize control of the thinking of America’s youth,” declared the narrator of the John Birch Society’s 1969 filmstrip “Sex Education: Conditioning for Immortality.” “The future of your children and your nation is at stake.” With the stakes so high, conspiracy theories abound. A pamphlet called “Is the Schoolhouse the Proper Place to Teach Raw Sex?”, distributed by the Christian Crusade around the same time, alleged a “giant communist conspiracy” masterminded by sex educator Dr. Mary S. Calderone. Today, Kiera Butler reports in Mother Jones, the Q-besotted, transphobic anti-vaxxers who call themselves “mama bears” are hooking into parental rights social media.
The late 1960s and ’70s were inhospitable years for those wishing to rescue young souls from the clutches of the godless public school. But when Ronald Reagan swept into the White House in 1980 with a newly politicized evangelical Christian movement at his back, the so-called New Right escalated the battle to wrest power from the state and cede it to the family. Instrumental to this effort was the privatization of all state social programs and benefits, with public schools high on the list. The movement’s founding document was the Family Protection Act (FPA). Introduced by Nevada Republican Senator Paul Laxalt and then reintroduced, slightly amended, in 1981 under the sponsorship of Iowa Republican Senator Roger Jepsen, the FPA never passed—the fate of many omnibus bills. Still, it reiterated the principles that had mobilized the religious right’s cultural politics in earlier decades and laid out an agenda for the decades to come. Much of it has been accomplished.
Beginning with the “finding” that “certain Government policies have directly or benignly undermined and diminished the viability of the American family,” the bill provided the design specs of a sociopolitical environment in which the wall between church and state was porous, federal educational governance was returned to the states, and civil rights protections were weakened or abolished, most pointedly for homosexuals. Although proponents argued that the bill would end the use of “federal funds and programs to effect changes in cultural, moral, and familial values,” in the words of Heritage Foundation researcher Onalee McGraw, the FPA also used federal funds and programs—primarily tax policy—to encourage and enforce its own priorities, including family-based childcare and eldercare, adoption rather than abortion, and individual retirement accounts to replace employer-funded guaranteed pensions. The bill extended public-sector tax exemptions to parochial schools, while barring the federal government from imposing “any legal obligation or condition” on “church-operated” schools, daycares, shelters, or juvenile delinquency or drug treatment facilities.
Title I of the FPA was “Family Preservation”; Section 101 of Title I was “parental rights.” These parental rights effectively eclipsed children’s rights, mandating parental notification for contraception and abortion, strengthening states’ rights to return runaway kids to their homes, and redefining child abuse to exclude corporal punishment “by a responsible parent.” It is eerie to read in this section language and concepts that appear, undead as zombies, in the current spate of legislation. For instance, the FPA withheld funds from entities that “limit the right of parents to visit the public schools or classes or to inspect their children’s school records.”
Within a decade parental rights emerged from under the umbrella of family protection to assume the status of an independent movement. In 1992 Jeffrey Bell, a player in Republican politics since Nixon’s 1968 presidential campaign, authored the Parental Rights Amendment: “The right of parents to direct the upbringing and education of their children shall not be infringed.” To promote its ratification in all fifty state constitutions, Bell founded Of the People, with an annual budget of $500,000 to $600,000.
At a 1996 Congressional briefing introducing the amendment, Of the People’s legal advisor Robert George called parental rights natural rights. “We live at a time when parental rights [are] under unprecedented attack,” he declared, naming no assailant. “The effective repulsion of this attack and the restoration of legitimate parental authority where it has been displaced must be among the highest priorities of the pro-family movement today.” George fended off skeptical questions with reassurances that the amendment would not overreach because the U.S. judiciary was wise and reasonable.
After this he welcomed and thanked God for the organization’s new “co-chairman”: Betsy de Vos. Attendees may not have realized that they were witnessing the convergence of two movements: one to elevate parental rights, and the other to destroy public education. Bell had hinted at this convergence the year before in an interview with the Los Angeles Times. Parents might exercise their rights by voting on school curricula, he mused. If they didn’t like the outcome, the amendment would give them “greater freedom to go elsewhere.” This was no doubt a reference to the school choice movement, which has worked for decades to privatize, marketize, and, for some of its most passionate champions, Christianize public schools using taxpayers’ money.
Still one of the leading passionate Christian free-marketeers, De Vos is a major dark-money funder of charter school and school choice advocacy. As Donald Trump’s Secretary of Education, she attempted (and failed) to direct $400 million of the public education budget to expand private-school voucher programs. De Vos is now secretary of the American Legislative Exchange Council (ALEC), which churns out model legislation promoting “limited government, free markets and federalism.” Among its templates is a state parental rights statute. A similarly worded federal Parental Rights Amendment has been introduced in every session of Congress since 2008. One of its five articles guarantees a right to school choice and parental oversight of schools. So far neither Congress nor any state has ratified such a constitutional amendment.
The rest of the world recognizes that children have rights independent of their parents. These rights are codified in the 1989 UN Convention on the Rights of the Child (CRC). The CRC recognizes parents and legal guardians’ “rights and duties” to raise their children by their own lights. Yet it also conceives of the minor as an autonomous agent, imbued with inalienable human rights higher than their parents’ prerogatives. “In all actions concerning children,” it states, “the best interests of the child shall be a primary consideration.”
The civil rights the CRC encodes include freedoms of speech, thought, religion, association, and privacy; among the child’s human rights are “the highest attainable standard of health” and an adequate standard of living. In directing governments to protect children from “all forms of” violence at home, the convention provides no loophole for corporal punishment. It urges the implementation of free, compulsory primary education that prepares children “for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.”
Unsurprisingly, parental rights advocates despise what they view as an edict to bankroll government handouts and brainwash children in world order wokeness. ParentalRights.org argues that the CRC would give the government, not the family, the final say on the child’s best interests and allow the UN “unchecked authority” to bully the United States to outlaw spanking. A child cut loose by the CRC could access pornography, choose their own religion, or get medical treatment (contraception, abortion, gender-affirming hormones) without a parent’s consent. In session after session, Republicans have prevented the two-thirds Senate approval required to ratify the convention. Among the 193 UN members, the United States is the only holdout.
“Protect Children, Support Parents,” read the placard on the podium when Governor Ron deSantis signed Florida’s new bill. But the parental rights movement is selective about which children it protects and which parents it supports. Conservatives have introduced at least 166 anti-LGBTQ bills in the statehouses, according to Freedom for All Americans. Trans kids are the biggest target—a slew of proposals would prohibit students from using the bathroom or playing on a team consonant with their gender; at least ten of the latter have been enacted. The Alliance Defending Freedom, the most influential source of anti-queer model legislation, political strategy, and legal representation, says it “supports everyone’s freedom to seek the counseling they choose without interference from the government,” according to the Washington Post. But only if the counseling children (or, more likely, their parents) choose is gay-to-straight “conversion therapy.” At the same time, far-right lawmakers are working to define gender-affirming medical treatment for minors as child abuse and impose criminal penalties on parents who help in accessing it. The Family Protection Act employed carrots, such as tax credits, to shepherd people toward “family values.” These laws use cattle prods.
But no matter what kind of family life the law tries to enforce, the interests of parents and children will always conflict. Relegating legal power within a family is as dicey a process as policing emotional power. Whose rights win out? The final article of the federal Parental Rights Amendment hints at the compromises struck even by policymakers who believe their thou-shalt-nots are handed down from the Mount. None of the amendment “shall be construed to apply to a parental action or decision that would end life,” it reads—construed, in other words, to sanction abortion. The parental rights amendment acknowledges only one “child” whose rights might supersede its parents’ rights: the unborn—the child who is not yet a child, who cannot learn, think, feel, speak, or desire.
Judith Levine is the author of five books and countless articles exploring politics, policy, and public emotion, especially at the intersection of sex and justice. She lives in Brooklyn, NY and a small town in northeastern Vermont.
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