Abstract

Excerpted From: Kristine L. Bowman, The New Parents' Rights Movement, Education, and Equality, 91 University of Chicago Law Review 399 (March, 2024) (200 Footnotes) (Full Document)

In previous decades, claims of parents' rights in education focused largely on parents opting their children out: out of newly integrated schools and into segregated ones, out of sex education, out of traditional public schools, and into charter schools, private schools, or homeschools. These opt-out educational policies are grounded in the idea that parents should have significant, if not complete, control over how their children are educated. There are substantial risks to society when this belief about educational decision-making becomes the dominant one, however. Most notably, although prioritizing parents as decision-makers fosters viewpoint diversity in the short term by enabling families to more easily pass along their worldviews to their children, it also feeds polarization because the state's interests in creating a shared civic identity, incorporating a range of worldviews, and creating citizens that perpetuate democracy, are not part of decisions about children's education (or if they are, it is coincidental that parents share these interests). This risk of exacerbating polarization is particularly dangerous at the present moment, when the United States has been designated a backsliding democracy.

Recently--specifically, since mid-2021--a new movement has commanded national attention. What I call the New Parents' Rights Movement has augmented the prior opt-out claims with proposed policies that seek to impose anti-egalitarian views on all children in the name of parents' rights and framed within a neutral-sounding focus on decision-making authority. It is intertwined with our present culture wars, which I do not consider trivial disputes (the term originated with a disparaging connotation but rather ones of fundamental import. Drawing on Professor James Morone's words once more: “Underlying the specific complaints lurks the deepest question in every culture war: can we be a single people? With them?” A deep question, indeed.

A small but strong literature is already analyzing aspects of the New Parents' Rights Movement, especially regarding restrictions on anti-racist teaching, which is often mistakenly described as teaching Critical Race Theory. In this Essay, I add to that literature by arguing that the New Parents' Rights Movement seeks to change foundational assumptions in law about both the balance of educational decision-making authority and the values public education transmits, and that these attempted changes have serious consequences. To make this argument, I first set out four normative theories about the balance of power in educational decision-making as identified by political theorist Amy Gutmann. I also identify the dominant theory of educational decision-making today as reflected in the new Restatement of Children and the Law. Second, I discuss in broad strokes the parents' rights movement from the 1970s through the 2010s and also the New Parents' Rights Movement. As part of this discussion, I empirically document the emergence of the new movement by presenting data about the dramatic rise in “parents' rights” rhetoric in the national media beginning in mid-2021. I also synthesize the movement's approach in curriculum, book banning, and other disputes regarding race, anti-racism, sexual orientation, and gender identity. Finally, I begin to explore the potential implications of a shift in formal decision-making authority from being shared among parents, the state, and professional educators, to being dominated by parents; I also explore the potential consequences of the anti-egalitarian policy the new movement seeks to broadly enact in the name of parents' rights. Based on these potential implications, I contend we should resist the New Parents' Rights Movement and recommit to the educational decision-making theory, and the values, that anchor the current state of the law.

[. . .]

All education law and policy is built on one theory of educational decision-making or another. In this Essay, I have identified the theory of educational decision-making that underlies a core aspect of education law today, as synthesized in the Restatement of Children and the Law. It is a theory that brings the state, professional educators, and parents to the table. The New Parents' Rights Movement, by contrast, seeks to center parents as the primary educational decision-makers, and the consequences of such a shift have the potential to exacerbate the escalating polarization that grips our country by unsettling the balance in educational decision-making that has anchored education law and policy for a century or more. Furthermore, the New Parents' Rights Movement also seeks to enact a series of changes that not only give parents more control over their own children, but also would allow some parents to impose anti-egalitarian values broadly within public schools by controlling the content of curriculum, removing books from public school libraries, and introducing other policies that further marginalize individuals who are already minoritized based on their race, sexual orientation, or gender identity. Such law and policy changes have been proposed across the country and at all levels of government. The resulting battles are intense, and for good reason. In the words of education historian Jack Schneider,

if what you want to do is convince people that their way of life is being threatened, then telling stories about the schools is a really powerful way to do that. And that's not just because it's the easiest, most common touch point for Americans. It's also because schools are both literally and symbolically places where we make the future.

Schools, no stranger to the culture wars, are immersed in them once again, and we are at an inflection point. The choice we, as a society, make will impact the future of our democracy.

Michigan State University Professor of Law, College of Law; Professor of Education Policy and Associate Dean for Academic and Student Affairs, College of Education. J.D., M.A. Duke University, Ph.D. Political Science, University of Queensland.