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May 30, 2024 Feature

The Ontological Expansiveness of “Parental Rights” Rhetoric In K-12 Public Schools

Sacha M. Coupet & Kai Scott

Introduction

The spate of proposed and enacted anti-DEI, anti–Critical Race Theory (CRT), and anti-LGBTQ+ legislation that has been sweeping across the United States since 2020 is appropriately described as, among other things, unprecedented. This is especially true as it relates to the focus on CRT, defined as the “practice of interrogating the role of race and racism in society. . . .” The combined speed and vast scope of the varied efforts to restrict and penalize schools and teachers whose efforts to cultivate an inclusive learning environment touch on matters of race, gender, and sexuality have never before been witnessed in the history of our nation’s public education system. From a historical approach, however, the attempts to insert culture war issues into the K–12 curriculum reveals some hauntingly familiar strategies that attempt to frame as “new” longstanding and unresolved tensions that emerge at the inconstant boundaries separating family from school, or parent from state. The overt (and, at least in the short term, effective) clarion call to parents to wrest control over their children’s education, using the stirring rhetoric of “parental rights,” reignites these tensions in an attempt to empower individual parents to assert outsized dominance in the communal space of public education. Long hailed as “perhaps the most important function of state and local governments” and the “very foundation of good citizenship,” public schooling remains a critical component to our democratic society. The Court in Brown v. Board of Education pronounced as much, guided by the belief that public schooling prepared future citizens through exposure and engagement to principles of democracy “such as liberty, toleration, equality, justice, freedom of religion and press, and the need for limits on majority will.” These aims are as laudable now as they were at the time the Court articulated them almost 70 years ago in the seminal Supreme Court case heralded as our nation’s most profound collective embrace of the value of diversity, equity, and inclusion. This article explores the ways in which the current “parental rights” rhetoric, grounded in an overly expansive interpretation of the Supreme Court’s jurisprudence, resurrects the resistance of white parents to racial integration of public schools post-Brown. Then, like now, white parents, stoked by exaggerated racist claims of contagion and invasion, rallied to exercise control over a shared, public space that they conceived as theirs alone.

Parental rights as a rallying cry holds special appeal in the context of education, in part because schools are spaces oriented towards children, not necessarily their parents. They are highly contested spaces in which the needs, interests, and preferences of parents sometimes do not align with the needs, interests, and preferences of students or those charged with teaching them. Any misalignments are likely to ignite underlying tensions, especially when they touch on culturally charged issues like race and sex, “divisive” topics that have remained on the national radar since our nation’s founding. Even as public schools themselves become increasingly racially segregated, an increase in the overall racial diversity of the U.S. public school population—among other racial demographic changes taking place in our nation—has brought the issue of race more prominently to the fore. As public school students continue to learn in racially segregated environments, exposure, awareness, and dialogue about diversity become even more important as tools for developing the citizenship skills we need in a democratic and pluralistic society. Indeed, diversity in the curriculum might be the only way to make up for the absence of diversity in the learning environment itself.

This article aims to call out the highly destructive force that the rhetoric around “parental rights” is bringing to bear on this cornerstone of our fragile democracy. It explores the weaponized use of so-called parental rights to pass anti-inclusive legislation governing whether and how the particularly culturally charged issue of race is taught or discussed in K–12 public schools. Disguised, albeit poorly, as “race neutral,” and ostensibly aimed at avoiding racial division and strife, these bills actually further entrench white supremacy. By purging from the public school any critical examination of race, racism, and racial bias and their role in shaping our history and our national identity, legislators are facilitating a form of racial segregation that shapes what should be a communal space into one serving primarily white interests. Part I reflects on the role of public education and the opaqueness that characterizes the border between state and parent as it relates to the state’s role in providing citizenship development through public education. We highlight as an example compulsory school attendance laws where the state’s superior role is made particularly apparent. In Part I, we assert that the recent “parental rights” battle cry, in strategically avoiding recognition of the über authority of the state in public education, overplays its dominance. Part II looks at the recent weaponized misuse of “parental rights”—what we refer to as historically imprecise “parental rights” rhetoric as distinct from the actual jurisprudence on parental rights—as a sort of revival of the kind of white parental resistance witnessed in the wake of Brown v. Board of Education. It also provides some context for understanding the wave of white parent–driven efforts to ban Critical Race Theory or any reference to diversity, equity, and inclusion in public schools. Finally, Part III examines the strategic use of “parental rights” rhetoric to further racially regressive public school policies and laws through the lens of ontological expansiveness, a theoretical framework developed by philosopher Shannon Sullivan “to describe the complex and nuanced relationships that exist among race, Whiteness, and space.” In this section, we critique the use of “parental rights” rhetoric as a means to lay claim to the terrain of public schooling. Framing the current anti-CRT and anti-DEI initiatives through the lens of “ontological expansiveness,” this article calls out attempts by some white parents to co-opt seemingly race-neutral “parental rights” in order to assert control over what they perceive as a white space. We highlight the unique harm posed by this misuse of parental rights as it is being imposed upon an increasingly diverse population of U.S. public school children, noting that such regressive practices and policies risk erasing children’s richly diverse—and racialized—experiences, identities, and needs. This is especially harmful when such erasure effectively undermines the historical role of public schooling and contravenes the cherished democratic aspirations embraced by Brown. This section explores how current efforts to control the public school climate, culture, and curriculum bear resemblance to earlier attempts to deploy “parental rights” rhetoric to preserve the racial status quo and perpetuate white supremacy. We conclude with an observation about the dire consequences to our democracy that these efforts pose.

I. Reflecting on the Role of Public Education and the Scope of Parents’ Rights

A. Public Schooling as a Form of Co-parenting

Public schools have historically played a pivotal role in shaping values and norms in ways that align, reinforce, or possibly conflict with core aspects of what we typically think of as parenting. It is, therefore, not surprising that friction at the border between school and parent is particularly acute and highly combustible, in large part because of “the inherent tension created by [an] ambiguous boundary between child rearing controlled by parents and citizen formation controlled by the state. . . .” Both of these tasks unfold in the space of the home as well as that of the classroom—one, a private domain where idiosyncratic parental preferences are mostly protected, and the other, a shared public space requiring an inherent restraint on those idiosyncrasies. While carrying out its critical function of citizen formation, the state transmits and inculcates values of citizenship, interwoven in the day-to-day activities of the public school, that inevitably resembles, in substance and form, some aspects of child rearing. The rearing of young people inevitably overlaps with the rearing of citizens, especially their induction “into a civic culture” that includes “speaking and listening to people of many kinds” while “interacti[ng] and deliberati[ng] on problems”—essentially, practicing democracy. To the degree that the inculcation of these skills reflects some core traits of parenting, we admit that the state does indeed parent, in part, through the very delivery of public education. But this is not new. As explained elsewhere, this was precisely the Founders’ original intent for public education and a fundamental aim of the common school. It is not, therefore, uncommon in the course of ordinary classroom learning for teachers to explain the observable world to young children, through stories, anecdotes, guided reflection, sharing of ideas, and sometimes exposing them for the first time to an idea or a reality with which they were previously unfamiliar. In this way, teachers may accompany students along journeys of discovery, not only as these journeys relate to the acquisition of academic knowledge, but also social skills development and knowledge of the world in which they live and the people who inhabit it. But here is the rub: When this function aligns with parental values, it unfolds without attention. But when it departs, it is assailed as indoctrination.

Public schools fulfill their role despite the existing tension with parents, likely because parents and community members have sufficient trustin the system of public education and trust in the government that provides it. However, polls point to an erosion of trust over the past few decades and, in the face of ongoing social unrest and a global health pandemic,a potentially critical point of rupture. The ensuing turmoil has empowered some parents, but, most notably, politicians whose electoral success is due to parental perceptions of threat—real or imagined—to exploit zthe growing unrest and diminished trust. Advocacy groups, like Moms for Liberty, envision themselves as “redrawing the boundary between school and home,” maintaining that “Government schools don’t know their place. They have encroached upon parental rights, our rights as parents. . . .” Their rallying cry—“We do not co-parent with the government”—succinctly captures the wide gulf that separates perceptions of how far parental control of the public school should extend. It also, however, reflects a fundamentally inaccurate understanding of the role of the state in the provision of education and the limits of parental authority.

B. Compulsory School Attendance as an Example of the State’s Über Authority

The history of public education in the United States is marred with, among other biases, xenophobia, racism, sexism, and classism, all of which should be taken into account whenever referencing the origin story of K–12 public education. While we cannot fully elaborate upon this history in the short space of this article, we ask the reader to accept that these shortcomings neither detract from the central role with which public education has been tasked in undergirding citizenship and democracy nor weaken the state’s authority to work through public schools to carry out this function. One example that best captures both this history and the superior role of the state with respect to citizenship development is state-created compulsory school attendance mandates, which we argue are evidence of the state’s über authority in this domain. Compulsory school attendance laws are indeed the quintessential expression of the core governmental nature of education, as the state’s lawful compulsion of education reveals not only its investment in an educated citizenry, but also something fundamental about the supreme authority the state possesses to make individual parents’ interests subordinate in deference to an aspirational public or common good. For example, the fact that parents have no inherent right to deny their children an education altogether is proof of the state’s interests trumping those of parents. Parents are not free to deny their children an education not merely because that denial harms an individual child but because, equally important, it poses a collective harm to the state. The state is authorized to act both to compel attendance and to determine educational standards necessary to achieve state-supported aims, like citizenship development and the inculcation of democratic values. Again, while the state’s track record in undertaking this authority may be tainted under layers of racial, religious, and class bias, the core aspiration embraced by proponents of the common school is that participation in public schooling would transform all young people “into virtuous, productive American citizens.” Although this aspiration doesn’t, by necessity, displace parents, who have always been regarded as central to the upbringing and education of their children, the state made clear early on that it possessed an independent interest in the kinds of citizens that young people would become. Indeed, the earliest origins of compulsory school attendance laws grew in part from distrust of parents’ capacity or willingness to fulfill their child-rearing roles vis-à-vis citizenship development. A “moral obligation” was “transform[ed] . . . into a legal one” with the adoption of the first compulsory education law when early government leaders—in 1642, Puritan elders in Massachusetts—grew “[f]earful that too many parents . . . were neglecting their child-rearing responsibilities. . . .” As laws addressing standards of education continued to evolve, it wasn’t until two centuries later that state laws mandating actual school attendance came into existence, starting in 1852 with Massachusetts and ending with Mississippi (the last state in the United States at that time to enact a compulsory attendance law) in 1918.

The forces that shaped compulsory education and attendance laws, quite naturally, varied over time, mostly in response to political and social pressures, which, like now, were sometimes progressive and sometimes regressive. Whether these pressures were benignly or malignly driven, the existence and, later, the effective enforcement of these laws have come to signal something profound about the power of the state, not only to exert its authority over parents as to a core aspect of child rearing, but to use this power to instill in children values and norms that orient them towards the ideals of a democratic society.

C. Right-Sizing Parental Rights

Iterations of the very same forces that drove the development of compulsory school attendance laws form the backdrop of the seminal Supreme Court cases in which parental rights were originally outlined. Those who advance the cause of parental rights in the effort to pass anti-CRT, anti-DEI, and anti-LGBTQ legislation cite to the trio of cases Meyer v. Nebraska, Pierce v. Society of Sisters, and Wisconsin v. Yoderas support of their right to care, custody, and control of their children, which they claim includes a near absolute right to control their children’s education. And yet, they would be wrong. Fundamental misconceptions concerning the scope of parental rights ring loudly in the rallying cries of this current crop of so-called parental rights advocates. This is distinctly evident in the rhetoric adopted by the most vocal and active national parent group decrying governmental overreach in the public schools, Moms for Liberty, who describe themselves as “stok[ing] the fires of liberty” by “stand[ing] up for parental rights at all levels of government.”

Varying assessments nonetheless persist as to the weightiness of parental claims in public education, all of which render the seminal “parental rights” cases into something akin to a projective test in psychology—an ambiguous stimulus onto which someone projects their own biases, emotions, and internal conflicts. Whereas those who seek a more expansive parental role regard these precedents as providing a powerful tool to guard against state intrusion, others see the opposite. An oft-quoted line from Pierce—“The child is not the mere creature of the state”—is emblematic of this divide. The term “mere” in this context, which concerns the balance of power between state and parent in the domain of education, suggests that the child is not only subject to the commands of the state, but also subject to the care, custody, and control of their parents.

In a sense, this critical aspect of childrearing is most appropriately conceived as “both/and” and not “either/or,” as many parental rights advocates appear to believe. Parents are reasonably regarded as their children’s first teachers, and they are expected to partner with the state to round out the scope of education so that the citizenship development aims of the state are also met. Parental rights, therefore, remain robust at the same time that the state enjoys a “right of first refusal” so to speak, which it exercises in creating the overall mechanism of childhood education and the mandate that all parents submit to it. The state’s broad authority has, indeed, been consistently upheld on those occasions in which the state was challenged over the manner in which it chose to exercise its authority. But to assert that limitations on the manner in which the state pursues its broad educational aims are tantamount to a transfer of all authority to parents is simply false. Indeed, “[i]n legitimizing the state’s power to institutionalize a compulsory system of schooling, the courts [have] sanctioned a systematic transmission of values as well as a formal means of social control.” Although groups like Moms for Liberty, Parents Defending Education, and Parents Against Critical Theory, who all claim to champion “parental rights,” vehemently disagree, it is well established that the power of the state continues to include the legitimate creation of what parents may complain to be “alternative institutions of socialization.” How advocates interpret the limits of their parental rights and their zeal for wielding those rights as either a shield or a sword illustrates how certain parents, specifically white parents, have been able to exercise outsized dominance within the space of public education.

II. Weaponizing Parental Rights: Brown Redux

A. “Parental Rights” Rhetoric as a Shield to Resist Racial Integration

So-called parental rights advocates of recent vintage did not need to reinvent the wheel when imagining how to attempt to leverage a measure of dominance in the space of public education. They had only to look at the example set by white parents resistant to racial integration post-Brown who, together with state officials, used “parental rights” rhetoric to ward off the “invasion” of nonwhite bodies into the physical space of the public school. In response to the Court holding racial segregation as violative of the Equal Protection Clause of the Fourteenth Amendment, resistant white parents explored drastic measures to avoid compliance, including disinvestment in public education altogether. Much of the resistance to Brown involved white parents relying on “parental rights” rhetoric as a shield to defend themselves from what they claimed was the overly intrusive reach of the state and to protect “their” public schools from the unwelcomed presence of nonwhites. This defensive posture included the mass withdrawal of white children from the public schools and the concomitant establishment of a “private” school system—segregation academies—where white parents could continue to exercise some form of mastery over their environment, preserving racial hierarchy by perpetuating segregated educational environments.

Not surprisingly, the resistance to state dominance then, much like the resistance of the past few years, was excited by politicians who found a captive audience in the aggrieved white parents—an influential voting bloc—who sought to exercise their so called parental rights to maintain segregated learning environments that were (and remain) antithetical to democratic aims. Southern white political leaders condemned Brown and “vowed to defy” the Court’s order. Senator Harry Byrd of Virginia, known at the time as the “leading architect” of Virginia’s segregationist movement, organized a coalition of almost 100 similarly minded politicians from the South “to sign on to his ‘Southern Manifesto[,]’ an agreement to resist” the Court’s command in Brown, in part because of the alleged infringement upon the constitutional rights of parents. The “massive resistance” championed by Southern segregationists targeted hallmark facets of public education—“[calling for] school attendance [to no longer] be compulsory; [allocating money directly] to parents as tuition grants if they opposed integration; and authoriz[ing] local school boards [to] assign students to schools themselves.” The most dire measures called for the closing of entire public school systems, which in Prince Edward County, Virginia, resulted in a five-year closure. Despite the court’s direction in Brown II to implement the holding in Brown, resistance of both politicians and parents continued at the state level. However, further federal legislation such as the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965 attempted to make Brown’s promises real.

B. “Parental Rights” Rhetoric as a Sword to Attack Public Education

The same collaboration of legislators and parents that manifested after Brown to embolden resistance to racial integration have animated more recent attempts to resist racial equity and racial inclusion aims in public education. However, lessons learned after Brown have proved instructive, and white parents seeking to resist racial integration have found alternatives to assertions of “parental rights,” namely the exercise of residential choice, otherwise known as “white flight.” Exercising such choice, white parents sought out public schools in residential areas where the representation of nonwhites was (and remains) minimal enough to not pose a threat, effectively resegregating public schools. According to education law experts, “[s]chools have been quietly resegregating at rates that rival those that preceded the landmark school desegregation case in 1954,” with patterns of “double segregation”—racial and economic segregation that frequently overlap in K–12 public schools—increasing regularly. Resegregation has required more than mere parental choice, however, and efforts “including the drawing of district boundary lines in ways that isolate students by race” as well as legal challenges that “limit[] the consideration of student race in voluntary school desegregation programs” have contributed to this trend. Progressive school reform measures of the last few years have, therefore, had to shift from the integration of racialized student bodies to the integration of concepts of racial diversity through the adoption of inclusive curricula.

Not surprisingly, the underlying angst and profound discomfort of confronting race, racial bias, and the legacy of racism in our nation morphed from concerns around mere contact with racialized bodies or persons to alleged indoctrination by way of contact with racialized ideas—strategically disguised, critics allege, as subversive lessons in critical race theory. Much like the perceived “invasion” of nonwhite bodies that resulted from racial integration, racially progressive ideas have come to be seen as the new contaminating and intrusive force that threatens the existing political, economic, and social order. Whereas resisting white parents in the past relied on alleged parental rights to defensively protect against this alleged “contagion”—with many eventually electing to opt out of the public school altogether—white parents are now using parental rights offensively to push back. Inspired by a righteous and outsized sense of dominion over the space and the work of the public school, and empowered by legislators and agenda-setting donors eager to court their votes, some white parents are aggressively trying to usurp control of public education.

The alliance between politicians and “parental rights” groups first came to our attention around shared opposition to school mask mandates that were imposed during the COVID-19 pandemic. Masking became an earlier flashpoint that foreshadowed the current wave of parent protests against any public school policy perceived as threatening the freedom of individual parents to shape the school environment. Again, rather than rest on the more traditional approach of opting out of public school—a strategy that might be regarded as ceding terrain—parents in the current movement have instead mobilized to dominate the space. “Parental rights” rhetoric has, in this manner, proven to be an incredibly malleable weapon. Whereas advocates in the past used claims of “parental rights” as a shield to protect against the introduction of ideas, concepts, and practices into the public school, such claims are now being deployed as a sword to forcibly wrest control of the public school by actively purging the space of what critics have termed “woke-ism” through the legislative means described next. This purge is unfolding in the form of book bans, parental challenges to the public school curriculum, and even the targeting and firing of teachers. Again, Moms for Liberty is a perfect example of the sword over shield approach. Defining themselves as “joyful warriors” committed to “unifying, educating and empowering parents to defend their parental rights at all levels of government,” they have explained that their goals are to “restore sanity in an educational system that has swung wildly away from the values of most American families [. . .] and to push back at government overreach.”

C. Legislative Efforts Intended to Undermine Racial Inclusivity

It may be impossible to precisely identify a singular catalyst that precipitated the recent spate of anti-CRT/anti-DEI, as well as the anti-LGBTQ+ and, specifically, anti-transgender, legislation that has dominated Republican statehouses across the country. Commentators observe that this movement was borne from a toxic mix of white grievance over a demographically changing America, further stoked by increased mainstream acceptance of “the great replacement theory,” the growing number of white activists who took part in the racial justice movement following the May 2020 police murder of George Floyd, and widespread and potent backlash, starting in 2019, to the 1619 Project, a journalistic examination of slavery’s role in shaping America’s past and present. One particularly aggrieved, high-profile influencer—President Trump—can be said to have escalated the backlash to the level of national furor when, in September 2020, he issued an anti-CRT/anti-DEI executive order. A 2022 analysis determined that the language of the executive order appeared, nearly verbatim, in more than two-thirds of the then-pending anti-CRT bills addressing K–12 instruction and almost all of the 11 statutes that had actually been signed into law.

The Executive Order, titled “Combating Race and Sex Stereotyping,” quoted strategically from Dr. Martin Luther King Jr. and included as its justification a need to combat a “destructive ideology . . . grounded in misrepresentations of our country’s history” and “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.” Trump was aided in the drafting of this Executive Order by conservative activist Christopher Rufo, chief architect and principal protagonist of the anti-CRT/anti-DEI propaganda campaign, who “alleged that efforts to inject awareness of systemic racism and White privilege . . . posed a grave threat to the nation . . . amount[ing] . . . to a ‘cult indoctrination.’” Although the Executive Order applied to the federal government and President Biden revoked the order when his term commenced, the language was co-opted and incorporated into proposed legislation that took hold across Republican-led states where restrictions on “divisive concepts” were applied to both state agencies and schools.

Simply put, what began as a steady stream of anti-DEI and anti-CRT legislation in 2020 grew to become, over the past four years, an avalanche, accelerated by the force of the “parental rights” claims put forward by the bills’ proponents. The speed and breadth of this recent regressive legislative furor is alarming enough in an increasingly racially diverse and pluralistic democracy whose survival rests on our ability to coalesce around a shared sense of common purpose. But it is even more worrisome in light of the radically expanded reach that legislators claim is consistent with parents’ fundamental right and the vocal audience of parents poised to exercise this right. Pandering to this electoral bloc with illusions of a virtually unfettered “parental right,” legislators are aiming to help some parents exert a reach that includes all matters within the public-school curriculum, especially those that touch on cultural issues like race, sex, gender, and sexuality. For example, while parents who challenged school curricula matters decades ago focused their concerns on what their own children would be exposed to, “[t]he latest swell of support for parents’ rights goes [even] further . . . [by] advocat[ing] for a decrease in state control of education within public schools, substituting the expertise of educators with their own ideas of what education should look like, and”—most disturbingly—“what kinds of information all students should be receiving.” The breathtakingly broad reach of these new “parental rights” bills has come to include things like book banning and prohibitions that make school districts liable when school staffers “interfere with or usurp the fundamental right of parents to direct the upbringing, education, health care and mental health of their children,” with some bills even appearing to grant unfettered authority to parents. The multipronged measures introduced into law nationwide that are aimed at regulating the school environment have been criticized for, among other things, vague language, seen as intentionally obscure in order to compel self-censorship among educators.

UCLA Law Professor LaToya Baldwin Clark, using data from the CRT Forward Tracking Project, an initiative created by the Critical Race Studies (CRS) Program at UCLA School of Law, explores in thorough detail the origins and spread of anti-CRT legislation between 2021 and 2022 and analyzes specific anti-CRT measures. Given the constraints of space in the instant piece, readers are especially encouraged to rely on Professor Clark’s exacting review for a broader and deeper exploration of the efforts targeting CRT, from those at the local level to the state level. Drawing a fairly comprehensive scope, Professor Clark observes that “[i]n 2021 and 2022, lawmakers and other government officials in forty-nine states and at every level of government introduced at least one anti-CRT policy, regulation, resolution, official letter, or piece of legislation.” “From January 1, 2021 through December 31, 2022, the Project identified 563 local, state, and federal measures aimed against CRT and other antiracist content,” a figure that has increased to 783 as of the writing of this article. Professor Clark’s extensive review of adopted, pending, and failed legislation reveals both the vast scope of these measures—including measures such as curricular transparency and educator surveillance—as well as the overt ways in which legislators have specifically relied upon claims of parental rights to achieve racially regressive aims. According to Clark, these collective anti-CRT efforts “invoke CRT and other so-called ‘divisive concepts’ to argue for colorblindness and innocence as superior values to defeat race consciousness.”

We echo Professor Clark’s assessment that, taken as a whole, the legislation appears to adopt colorblindness and race neutrality as aspirational standards along with an unwavering commitment to a sanitized American origin story that avoids addressing the ways in which white supremacy and slavery shaped the nation’s very founding. As a consequence, beneath this ostensibly nondiscriminatory veneer sits a gaping historical void that fails to acknowledge that white supremacy has been the status quo in K–12 education since its inception, a fact reflected in the history books upon which early public education originally relied from the early 19th century onwards. As politically neutral as one would like to believe a “race neutral” approach might be, the reality is that it is avoiding the potential “discomfort, guilt, anguish or any other form of psychological distress” that legislators fear white children might experience from mere exposure to a truthful accounting of how conceptions of race and racism have influenced U.S. history. What Professor Clark refers to as “white innocence” neither empowers the next generation of citizens to eliminate long-standing racial disparities nor inspires them to engage as citizens within our increasingly racially diverse representative democracy. Indeed, the attempt to erase from the public school environment “cultural, racial, gender, sexual, and class differences, and the voices expressing them . . . teach[es] children that neither their lived experiences nor their cultural heritages matter.” Cautions education scholar Professor Kovacs, “[t]his is cloning at best and ethnic cleansing at worst,” neither of which gets us closer to “the cultivation of and the learning for democracy [that] should take place in public schools. . . .”

Again, while the anti-CRT legislative efforts, particularly their speed and scope, are distressingly novel, as Professor Yacovone’s exhaustive review of educational texts reveals, debates about how our nation’s history should be taught to young people are age old. They remain likely unresolvable given the widely discrepant opinions about how topics like race, racism, and white supremacy should be introduced in schools or if they are to be introduced at all. Rather than tackle the weightier substance of the debate, efforts to severely restrict public school teachers’ ability to expose children to a more inclusive, historically precise, yet deeply conflictual, accounting of our nation’s past and present serve to continue a pattern of avoidance by shifting the focus. Changing the question from what is taught to who should decide what is taught preempts the debate, while offering the hollow appeal of politically correct race-neutrality and ensuring a tactical political advantage.

As we soon approach the 70th anniversary of one of America’s most consequential equality cases, it is fitting to ask just how Brown and the accompanying discourse on racial inequality, racial bias, and systemic racism will be addressed under the recent wave of restrictive legislation that bars substantive discussions about topics like white supremacy and racial discrimination. For example, how will a teacher meaningfully, and, more importantly, truthfully, explain, without addressing the reality of race and racism, the photos depicting mobs of angry white people, presumably parents, gathered outside of the Little Rock Central High School on September 4, 1957, to aid in preventing a group of nine Black students (“The Little Rock Nine”) from merely entering a public school or those of white mothers in New Orleans parading a coffin with a small Black baby doll in effigy of six-year-old Ruby Bridges, who integrated the New Orleans public school system in 1960? And how would a teacher respond to the observation that those mobs don’t look terribly dissimilar from the angry white parents who continue to gather in protest of alleged Critical Race Theory indoctrination in and outside of school board meetings across the country?

III. The Racialized Ontology of Parenthood and the Racialized Space of Public Education

A. “Parental Rights” Rhetoric Through the Lens of Ontological Expansiveness

It would, again, be reasonable to point to the growing racial awareness ushered in with the 1619 Project and the racial reckoning of summer 2020 as among the most potent catalysts for the recent backlash against efforts to develop racial awareness, reexamine our nation’s history of racial oppression, and educate young people in ways that create and sustain inclusive learning environments in K–12. As others have noted, this backlash and the recent effort to censor and control discussions about race can be principally traced back to rightwing activist Christopher Rufo’s quest to brand Critical Race Theory as “toxic” and his largely successful media campaign that began in fall 2020. We posit here that the appeal of his quest to parents is based on a fear that CRT might force, if not racially diverse students themselves, racialized ideas into the space of the public school, with white students, in turn, bringing those ideas back into the domain of the home. The resulting anxiety that some white parents—whose own educations have left them likely ill-prepared for such talks—feel, it appears, is driving some of the current resistance. This is a theory endorsed even by the anti-CRT campaign’s creator, Rufo. When asked what he thought constituted the emotional core of the protests against critical race theory, Rufo attributed some of the response to being unfairly called racist, but he also called out parents with whom he had directly spoken who, he said, were upset to see too heavy an emphasis on race and gender theory in class—sometimes understood to be any emphasis at all—and parents who “reported suddenly feeling that ‘these institutions that I believe in’—the school, the workplace—‘are being devoured by an ideology I don’t understand.’” Implied in this statement is the sense of a white space being overtaken or “devoured” by something that is “other” along with an admission that parents are ill-equipped to address an “other” who they do not, at best—and care not to, at worst—understand. This message remains a profoundly powerful driver for those worried that exposure to racialized ideas will radically disrupt white parents’ attempts to serve as ideological gatekeepers.

So, the question, as we observe it, becomes: How is it that parents wielding less-than-robust parental rights, mobilized by Rufo’s dog-whistle appeal, managed to effectively leverage so much political will in pursuit of their preferences? How have they been empowered to exercise so much control in the space of public education, given the superior authority of the state as it relates to matters of citizenship development? We posit that the movement to tap into parental discord for the purpose of setting off the current political wave—one that is facilitating an outsized parental incursion into public schools—is best understood through the lens of ontological expansiveness, or the imposition of a myopic sense of self to a space of shared meaning. More specifically, white parents have been successful in their quest to exercise dominance in the space of public education because whiteness itself, in centering the perspectives and predilections of whites, is ontologically expansive.

Philosopher Professor Shannon Sullivan defines ontological expansiveness as a “habit of white people to act and think as if all spaces—whether geographical, psychical, linguistic, economic, spiritual, bodily, or otherwise—are or should be available for them to move in and out of as they wish.” Conceived as a framework for understanding whiteness, ontological expansiveness highlights the ways in which members from dominant communities attempt to superimpose a view of reality distinct from, and sometimes at odds with, that of nondominant and marginalized communities. The perceived universal nature of this dominant reality is buttressed by an underlying presumption of legitimacy, which, in turn, fuels the attempt to exert outsized influence. A core feature of ontological expansiveness is the “co-constitutive relationship between self and environment in which the self assumes that it can and should have total mastery over its environment,” in this case, the ostensibly shared or common space of the public school. Viewed through the lens of ontological expansiveness, the imagined imposition of racial awareness into the public school curriculum—the racialized ideas, stories, messages, and history inartfully lumped under the umbrella of CRT—is experienced as a “violation of the ‘natural’ order of things” in the same way as the feared race-mixing that was vehemently resisted after Brown.

According to Sullivan, even seemingly “unconstituted spaces” can be revealed as a “racially composed white space” where whites and nonwhites inhabit the space in “unequal, non-reciprocal ways.” This has been the story of whites and nonwhites in the space of the public school since its inception: a noxious but core defining feature of public education that would appear to belie the notion, reified in Brown, of public school as a space for all. As educational theory scholar Professor Benjamin Justice argues, “[c]ommon schools developed in the nineteenth century were not for a public that happened to be white, [as they were designed by] White Americans . . . during a time when the United States was a diverse society that allocated different civic statuses to different people depending on the myth of race.” While the idea of the public school as one other space of white dominion is not at all new, since “Americans [have long] ordered and reordered their spaces around the allocation of white advantage—making sure that goods like schools were in fact white goods,” our collective failure to critically call this out has opened the door for parental rights advocates to assert ostensibly race-neutral claims that actually preserve racial inequality. As Professor Clark keenly observes, “[w]hile the [anti-CRT and parents’ rights] movements assert the normative superiority of colorblindness in protecting innocent children against indoctrination . . . they are [actually] color conscious of Whiteness, White parents’ rights, and the psychological needs of White children.” Surrendering to the siren call of “parental rights” rhetoric, politicians and policymakers are perpetuating a form of racial gaslighting that further excludes nonwhites and diminishes our ability to cultivate those values and traits necessary for a healthy democracy to thrive.

Framing the efforts by some white parents to control public education as an expression of ontological expansiveness seems particularly apt when reflecting on the specific manner in which white parents are asserting their claims, essentially using the banner of parental rights—rights enjoyed by individual parents vis-à-vis their own children—to impose regressive policies and practices on all children. White parents are attempting to exercise dominion, so to speak, by advocating on behalf of only some parents—those who view the world in the same manner and share the same concerns—and doing so under an assumption that those parents, however small the subset relative to whole, represent the views of all parents. Again, Rufo himself offers an understanding of why the anti-CRT movement has been so impactful—one that reflects notions of habitation of space that are embedded in the concept of ontological expansiveness. As he observes, the toxic rebranding of CRT has allowed politicians to re-stage old fights over race, but this time “within different institutions and on new terrain.” Public schools, both K–12 and higher education, regarded by Rufo as “essentially corrupted state agencies,” have become the new contested space, with anti-CRT power centers being created within their borders. These ways of asserting protected liberty interests of white parents fit squarely within Sullivan’s framing of oppression, which she sees as “part of a network of complicated relationships in which all parties are ontologically constituted through the attempt of some people to unidirectionally . . . affect the lives of other people, to influence their behavior, to conduct and direct their activities.”

B. Public Schools as Sites of Trangressive Exposure

As explained above, ontological expansiveness provides an appropriate frame for understanding efforts by resistant white parents to guard against both forced racial integration post-Brown and recent initiatives promoting racially inclusive teaching. Under the logic that control of the space was then, and remains, within the scope of their protected parental liberty interests, resistant white parents remain emboldened in the face of state action. While in years pre- and even post-Brown, such assertions of dominance were used as a shield to preserve and protect an all-white environment from the alleged contamination posed by the presence of Black students, they are now used as swords to expel not only topics of study, but certain ideas themselves from the K–12 curriculum. Although parents driving this effort claim to be protecting children from a new kind of contagion—indoctrination—those aims have been discredited in the early strain of school curriculum challenges dating back to the late 1960s. The underlying rationale that held parental prerogatives in check then, and should be vigorously resurrected now, was that mere exposure to contrary ideas or values “does not constitute teaching, indoctrination, opposition or promotion of the things exposed” and that challenges to the curriculum were, therefore, missing the necessary compulsion element that would make such conduct constitutionally infirm.

What is implied in the reasoning of cases that upheld the state’s authority to determine matters of curriculum is the underlying legitimacy of public schools as appropriate sites, not of indoctrination, but of transgressive exposure—transgressive in that the encounters that a racially diverse public school environment might ideally provide would allow young people, especially whites, to reject for themselves oppressive racial hierarchies that they might otherwise lack opportunities to critique, unconsciously endorse, and/or perpetuate. For such is the nature of the ontological expansiveness of whiteness, which, like the unconscious habits of white privilege and white supremacy, according to Sullivan, will “work[] to evade conscious examination and deliberate transformation.” Rather than avoid uncomfortable discussions about race, she advises that“[w]hite people today need to dive into talking about race, including whiteness, explicitly identifying and thinking of ourselves as raced even when and perhaps especially when in all-white groups or situations,” like many white majority public schools are today. “This does not inject race into situations . . . [but], rather, helps bring to light the way that race and white privilege in particular were functioning all along.” Such environments would also permit students to practice those skills that will nurture their civic development as members of a deliberative democracy. In an increasingly diverse society such as ours, that kind of exposure would encourage students “to look at texts and their worlds through multiple lenses, understanding that ideas, peoples, histories, medias, and events shape us in particular ways,” all of which should be respected, considered, and explored, even when beyond the understanding of their parents.

This exposure to ideas, values, and experiences different from those within the family and community is made perhaps more transgressive now in an era of increasing residential segregation. Our preferences towards homogeneity and insular communities serve to perpetuate racially segregated schools where students are unlikely to encounter, learn with, and learn alongside students from a wide range of differing racial, ethnic, cultural, religious, and economic backgrounds. As our communities become more racially, culturally, and economically homogeneous, the promise of public schools as sites of democratic engagement becomes more distant. So too become the opportunities for students to “[i]nterrogat[e] multiple viewpoints,” to “understand and consider diverse interpretations and expressions of history and experience,” and to hone those skills needed of future citizens to engage in democratic deliberation. We all pay an inordinate price when the public school does not live up to its potential as a laboratory for meaningful democratic engagement and we have good reason to fear that the recent measures aimed at purging race and other salient human differences from the space of the public school will jeopardize our ability to forge a public.

IV. Conclusion

All who are genuinely concerned with our collective social well-being, the country’s continued capacity and willingness to invest in the common good, and the quality of those institutions deemed vital to the survival of our democracy should be wary of attempts such as we’ve witnessed over the past few years to rewrite history. So too should we as a nation resist resurrecting scare tactics and retooling them in the interest of assuaging anxiety about changing demographics and our identity as a nation. Projected declines in the proportion of public school K–12 students identifying as white mean that we must conceive of a public school student population that is already predominately nonwhite when contemplating what engagement with U.S. history children will need. As the trends already suggest, there will also be projected increases in the number of young people identifying as LGBTQ+. To best prepare this diverse generation of U.S. citizens to revive and sustain a thriving democracy, we must teach our children the principles of representative democracy, the habits of civil dialogue necessary to sustaining it, an appreciation for the rich range of experiences and identities that are inherently part of the human condition, and reflection on the challenges and missteps our society has made in living up to our democratic ideals. Foreclosing discussion of topics, including race, sex, and gender, that adults find challenging is inimical to those aims and inevitably dooms our quest to find common ground. While this would be troubling enough were the erasure of racialized and minoritized students self-imposed, these parental incursions instead sacrifice the interests of all students, in favor only of those whose parents are most opposed to social progress. Parental rights, even if understood to protect a parent’s interest in raising their children in a manner that aligns with their values, simply do not support denying other children’s opportunities to explore, learn, and thrive. The recent movement, like those that preceded it, rests on an ontologically expansive conception of white parents’ rights that undermines our multiracial democracy by doing violence to our fragile social fabric.

As to what the future may hold, we would be wise to take to heart Rufo’s stated warning, given his uncanny ability to craft and market a message with appeal to aggrieved white parents and politicians’ ability to rally voters under the banner of “parental rights” rhetoric. Boasts Rufo, “[w]e have won the debate on critical race theory, gender ideology, BLM activism, and DEI bureaucracy. Now we must move from the realm of public opinion to the realm of public policy, which means assembling the analysts, operators, lawyers, and administrators who will eventually be tasked with executing the reform agenda.” During this election year, we will inevitably witness heightened tension as it relates to the purging of race and other issues related to identity from public education. As lawmakers are being further empowered to flex their political muscle to shape public schools into the kinds of institutions that perpetuate the dominant status quo, opportunistic reliance on “parental rights” rhetoric will surely continue to play a central role in the pursuit of even more regressive and antidemocratic aims.

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    Sacha M. Coupet

    Loyola University Chicago School of Law

    Sacha M. Coupet is the Morris I. Leibman Professor of Law, Loyola University Chicago School of Law.

    The authors would like to acknowledge and thank Alexandra Ogunsanya, Darryl Bobb, Bogum Lee, and other New York Law School student editors for the Family Law Quarterly for the time and attention they spent in undertaking their careful edits. It was a pleasure to work with this thoughtful and diligent editorial team. The authors also acknowledge the support of the Loyola University Chicago School of Law Summer Research Grant Program.

    Kai Scott

    Loyola University Chicago School of Law

    Kai Scott is a J.D. candidate, Class of 2024, at Loyola University Chicago School of Law.