Retrenchment by Diversion: the New Politics of Parental Rights

Mary Ziegler,* Maxine Eichner,** Naomi Cahn† February, 2025

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article provides a new framework for understanding parental rights, one that differentiates an increasingly salient political practice from a longstanding constitutional law principle. We show that many contemporary efforts claimed to advance parental rights are part of a crucial but understudied social-movement tactic that we label “retrenchment by diversion.” This strategy involves retrenchment in that its goals are to stymie the future progress of equality-focused movements as well as to roll back their existing gains. To sidestep controversy, though, this strategy diverts attention from its rights-reversing motivations by supplying a more politically palatable rationale for its actions—here, the long and valued constitutional tradition of parental rights. While recent parental-rights laws are aimed at minors, we argue the ultimate goal of the retrenchment by diversion strategy in these laws is to threaten equality-focused rights for adults, as well.

This Article makes four key contributions to legal literature. First, it uncovers the relationship between the current movement for parental-rights laws and past attempts to roll back rights reforms based on the rhetoric of parental rights. Second, it elucidates retrenchment by diversion as a movement strategy and explains how parental-rights rhetoric effectuates this strategy. In doing so, we identify the ways parental-rights rhetoric effectively obscures the problematic goals that motivate these laws, the harms such laws pose to children and members of disadvantaged groups, and the damage they do to democracy and good government. Third, we offer guidance on how to distinguish legitimate claims of parental rights from uses of parental-rights rhetoric merely to accomplish the strategy of retrenchment by diversion. Fourth and finally, we consider what can be done to counter the new and damaging politics of parental rights.

What the state cannot do is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights . . . .

—Matsumoto v. Labrador¹

Introduction

The topic of parental rights suddenly seems to be everywhere in U.S. law and politics. During the summer of 2023, federal district courts in Kentucky and Tennessee issued preliminary injunctions against state bans on gender-affirming care, finding that the bans infringed parental rights.² The Sixth Circuit, however, reversed.³ According to the appellate court, “parents do not have a constitutional right” to obtain this care for their children.⁴

A little over a month later, in early November 2023, the Fifth Circuit heard an appeal involving a father who claimed his parental rights were violated by regulations that entitled his children to confidential family planning services.⁵ At oral argument, the father’s attorney claimed the act infringed on his right to consent to his children’s medical care, and his liberty to raise his daughters to remain abstinent until marriage.⁶

The same week as the Fifth Circuit’s oral arguments, the issue of parental rights appeared in a district court opinion assessing an Idaho law that criminalized alleged “abortion trafficking”—defined as helping a minor obtain an abortion without parental consent either within the state or in another state.⁷ The court held that parental rights did not justify the law.⁸

Meanwhile, legislatures have introduced or passed a slew of enactments that sponsors justify by asserting parental rights.⁹ Not including the passage of Florida’s Parental Rights in Education legislation, fifteen other states have passed laws banning or limiting discussions of gender identity and sexual orientation in public schools.¹⁰ In addition, states have passed laws mandating that schools obtain parental consent before school personnel can allow a child to use a name or pronouns different from those assigned at birth.¹¹ Other enactments require schools to remove sexually explicit content in curricular and library materials.¹² Another thirty states have passed laws under the banner of parental rights that aim to ban the teaching of so-called “Critical Race Theory” (“CRT”)—a term that originated in legal scholarship ¹³ but which has been deployed in these laws to regulate ideas or concepts related to race or racial justice deemed divisive.¹⁴ Parental rights issues also arise in legislative proposals to limit social media access for children. Consider that Instagram supports legislation that would require parental approval before anyone under the age of sixteen can download apps.¹⁵

In addition, claims to defend parental rights are at the forefront of recent political campaigns. In the November 2023 elections, Republican candidates across states styled themselves as defenders of parental rights.¹⁶ So did candidates for school boards.¹⁷

The new vogue for parental-rights politics poses two critical questions: Why have so many lawmakers turned to the frame of parental rights in recent years? And should these claims be treated with the considerable respect long accorded to parental rights in the United States’ constitutional tradition?

This Article develops a new framework for analyzing parental-rights claims. It argues that some politicians and activists invoking parental rights to justify new laws are relying on a critical, but heretofore understudied, social-movement strategy that we call retrenchment by diversion. This strategy involves retrenchment by seeking to stymie the future progress of equality-focused movements and roll back their existing gains. To sidestep controversy, though, this strategy diverts attention from its rights-reversing motivations by supplying a more politically palatable rationale for its actions—here, the long and valued constitutional tradition of parental rights. Accordingly, although parental-rights laws are aimed at minors, the ultimate goal of the retrenchment by diversion strategy is to roll back equality-focused rights for adults, as well. Seen in this light, parental-rights laws attempt to roll back progress toward equality for women, Black, and queer Americans while concealing their ultimate ambitions.¹⁸

Although this Article focuses on recently passed parental-rights laws as examples of the strategy of retrenchment by diversion, legislators and movement activists have used this strategy in other contexts. Targeted restrictions on abortion providers (TRAP laws), which impose costly and medically unnecessary requirements on abortion clinics, were put in place by states hostile to abortion during the Roe era, ostensibly based on concerns for women’s safety.¹⁹ Indeed, state laws banning gender-affirming care for minors are themselves a prominent example of a retrenchment by diversion strategy: Legislators justify these bans based on concern for the medical risks such treatments pose to children.²⁰ Yet, as physicians and courts have pointed out, states have not sought to regulate other treatments that pose similar risks to children.²¹

This Article makes four key contributions to legal literature. First, it uncovers the relationship between the current movement for parental-rights laws and past attempts to roll back rights reforms based on the rhetoric of parental rights. In case studies drawn from struggles around racial integration, LGBTQ+ issues, and abortion, we demonstrate continuities across time and show how parental-rights rhetoric has long been used by activists to divert attention away from controversial goals. Second, we elucidate retrenchment by diversion as a movement strategy and explain why parental-rights rhetoric works as such an effective means to accomplish this strategy. In doing so, we identify the way parental-rights rhetoric effectively obscures the politically contentious goals that motivate these laws; the harms such laws pose to children and members of disadvantaged groups; and the damage they do to democracy and good government. Third, we offer guidance on how to distinguish legitimate claims of parental rights from uses of parental-rights rhetoric merely to accomplish the retrenchment by diversion strategy. Fourth and finally, we consider what can be done to counter the new and damaging politics of parental rights.

Part I begins with the history of parental-rights law and rhetoric to shed light on today’s conflicts. In three critical case studies involving sexuality, abortion, and integration, this Part explores the ways in which both movement activists and politicians have tried to undercut existing freedoms by advancing claims about parental rights, using them to disguise an incremental and far less modest program of change. Part II turns to the current era to describe the political, social, and economic circumstances that have moved parental rights to the political forefront during the past few years. Part III considers why parental-rights laws so effectively accomplish retrenchment by diversion through concealing the more controversial motives of legislators and activists under the guise of respecting parents’ loving desires for their children. In doing so, we show that parental-rights rhetoric obscures the risks these laws pose to children and disadvantaged groups, and it abrogates critical government responsibilities for children. Part IV offers an analytical framework for distinguishing the strategic use of parental-rights rhetoric from laws that comport with our constitutional jurisprudence. Part V concludes by reflecting on ways to counter the new politics of parental rights, ensuring both that mere strategic claims of parental rights are challenged and that the appropriate constitutional balance between children’s wellbeing, parental rights, and governmental interests is maintained.

I. The History of Parental-Rights Diversion

Today’s controversies over parental rights are part of a long set of battles that have taken place in legislatures and the court of public opinion. The claims at the center of these political skirmishes look considerably different from those that the legal system has generally considered in reviewing disputes over parental rights. Courts, as well as the family law scholars and political theorists who have long discussed these issues, have sought to resolve the sometimes competing interests of parents, children, and the state—the “triad” of parties implicated in decisionmaking about children—and to reach a reasonable balance among these interests.²² For example, early laws on parental rights and abortion, unlike current laws that make use of this rhetoric, truly did grant discretion to individual parents.²³ Moreover, early court decisions evinced a serious attempt to balance the competing interests in the triad and situate a divisive political issue in the context of case law on minors’ medical decisions.²⁴

Meanwhile, unearthing the history of struggles over segregation, abortion, and LGBTQ+ rights outside courts allows us to see common features among a particular form of parental-rights politics that foreshadow comparable political claims today. These historical struggles all reflected the distinctive demands of particular social movements at specific historical moments; there is no single parental-rights movement that cuts across time and space. Nevertheless, by closely considering these specific historical examples, we can identify common threads in parental-rights discourse that deviate from the constitutional principles governing parental rights in court. Rather than the government respecting parental pluralism and carving out space for a variety of parental decisions, the politics of parental rights establish state or federal policies binding on all parents. This discourse often gains momentum when movements and politicians find it disadvantageous to state their position on an underlying issue, such as abortion or integration, and thus, they invoke parental rights to pursue unpopular or inequitable ends. Finally, while appealing to the liberty of parents, politicians introduce laws that block or even roll back progressive reforms.

A. “Busing” in the Post-Brown Era

In the years immediately following the Supreme Court’s 1954 decision in Brown v. Board of Education,²⁵ white students routinely rode the bus to more distant schools to maintain racial segregation.²⁶ But parental-rights strategies around “busing,” used as a shorthand for integration remedies that required students to travel to different districts or schools, came later—and only after the Supreme Court stepped up demands for school districts to desegregate with “all deliberate speed.”²⁷ In 1964, for example, in Griffin v. School Board of Prince Edward County, a county government in Virginia eliminated funding for public schools, instead providing parents with vouchers to attend private schools.²⁸ Because all of the local private schools admitted only white students, there was no formal education for Black children in the county for four years while the litigation continued.²⁹ The Supreme Court held that closing the public schools violated the Equal Protection Clause.³⁰ “The time for mere ‘deliberate speed’ has run out,” Justice Black wrote for the Court.³¹

The years immediately after Griffin saw a surge in victories for plaintiffs in school desegregation cases.³² In response, white groups mounted opposition, not to integration but to “busing,” defined as a novel and unprecedented affront to parental rights.³³ For example, when Black and Puerto Rican activists mobilized to demand the desegregation of New York schools in the mid-1960s, a new white group, Taxpayers and Taxpayers, formed to denounce “busing” as a violation of the rights of white d tad white children.³⁴ In New York City, Taxpayers and Parents challenged the constitutionality of the school board’s integration plan, claiming that it violated the rights of white parents and children to choose “neighborhood schools.”³⁵ When the Supreme Court declined to hear Taxpayers and Parents’ case, the group mounted a massive protest, with some members pulling their children out of school or using force to place their children in a “neighborhood school.”³⁶ “The people of our community are going to see that our constitutional rights are upheld,” said Howard Williams, a spokesperson for the group.³⁷

Politicians soon saw the fight against “busing” as a winning issue.³⁸ Appropriations bills for the Department of Health, Education, and Welfare began including anti-busing language in 1968, which its sponsors framed as a necessary protection for parents.³⁹ Senator John Stennis of Mississippi predicted that any northern parents who supported busing would soon change their minds.⁴⁰ Presenting himself as a champion for parents, Florida Governor Claude Kirk made the fight against busing the hallmark of his 1970 reelection campaign; although voters booted him out of office after he failed to ban bussing,⁴¹ other politicians used the same playbook.⁴² New York passed an anti-busing bill in 1969, and though it was struck down,⁴³ a series of similar bills across southern states appeared in rapid succession.⁴⁴

Opposing “busing” and invoking parental rights also became key to Richard Nixon’s effort to seek reelection.⁴⁵ In 1970, Nixon suggested that parents had a right to choose where to raise their children and whether to send them to local schools.⁴⁶ In this way, he distinguished his views on “de facto segregation”—described as segregation based on housing patterns—and de jure segregation, implemented intentionally.⁴⁷ He acknowledged that de jure segregation was unconstitutional but presented de facto segregation as permissible—part of the fabric of decisions made by families—and he vowed to no longer withhold federal funding from schools that refused to comply with integration orders.⁴⁸

In practice, Nixon’s distinction between de jure and de facto segregation did not hold up: As the New York Times explained in 1968, the greatest weapon for whites opposed to integration was the choice to move to the suburbs.⁴⁹ White flight reconfigured the nation’s cities in the 1960s and 1970s: Between 1940 and 1970, the fraction of white households in major metropolitan areas in the North and West fell from two-thirds to one-third;⁵⁰ work by Princeton economist Leah Bouston found that for each Black arrival in a city, two white people left.⁵¹

The creation of these white spaces became central to the fight against integration. White groups claimed that they supported integration but stressed that theirs was a different issue: parents’ rights to choose a community and send their children to neighborhood schools.⁵² Anti-integration groups underscored racist stereotypes about the assumed differences between their own safe communities and those where students would be bused. One Pittsburgh activist warned in 1969 that if his children were bused, they might “get lost or never come home again.”⁵³ The same year, California anti-integration activists invoked parents’ rights to protect their children from drug use and other problems supposedly plaguing city schools.⁵⁴ “We don’t object to integration” explained Ben Davis, a member of an anti-integration group.⁵⁵ “We simply believe that our children should go to school in their own community. . . .”⁵⁶ In 1971, the Supreme Court seemed unbowed by the pressure from politicians and activists claiming to defend parents’ rights. In Swann v. Charlotte-Mecklenburg Board of Education, the Court reaffirmed that district courts had broad remedial authority when enforcing desegregation.⁵⁷ The majority refused to draw hard lines on the use of busing, allowed the use of mathematical ratios or quotas as a “starting point” for integration, and suggested that all-Black schools were constitutionally suspect.⁵⁸ Later that year, Nixon responded by restating that he “opposed the busing of our nation’s schoolchildren to achieve a racial balance . . . .”⁵⁹

After Swann, political conversations on busing elevated the voices of certain politicians and white organizers who claimed to speak on behalf of parents.⁶⁰ This dialogue functionally erased Black parents and other parents of color, pro-integration white parents, and children of color whose education was on the line. Even defining integration as a matter of “busing” neglected the views of Black leaders: The Council of Black Appointees submitted a report questioning the constitutionality of Nixon’s busing stand, and ten Black lawyers at the Department of Justice protested his policy.⁶¹

And views on how to achieve racial equality varied among parents and civil rights leaders. Some Black parents favored more control over schools in Black communities. Others voiced cautious support for sending their children to what had been white schools, worrying about the quality of integrated schools and the safety of their children.⁶² Still others suggested that the implementation of desegregation placed too much of a burden on Black children, taking them to white communities rather than strengthening schools in Black communities and bringing white students to them.⁶³ But the politics of parental rights at the national and state level said nothing about what Black parents preferred.

Nor did fights for busing make room for the voices of Black students. In some cases, such as when Norfolk, Virginia decided to close a historically Black school and open a new one in a whiter part of the city, Black students protested.⁶⁴ One of the protestors, Dwight Davis, insisted that busing Black students to a white community, rather than white students to a majority-Black school, was inherently unfair.⁶⁵ Others suggested that the decision to bus Black students to white schools reflected an intention to allow poor conditions to persist at schools in communities of color.⁶⁶ Black civil rights leaders also staked out complex positions on how to achieve integration. For example, a group of civil rights leaders gathered at Howard University in 1972 demanded “control of our own education, with busing, and any other tool which guarantees quality, as an option, and also protects all rights guaranteed under the 14th Amendment.”⁶⁷

But neither policy nor law centered the claims of Black parents or children. Instead, the media covered parents opposed to integration. For example, news networks breathlessly detailed the 1972 “mother’s march,” which was patterned on Martin Luther King’s March on Washington and led by Irene McCabe, a white woman from Pontiac, Michigan.⁶⁸ McCabe presented her cause as vindicating the rights of parents. “I object to the long arm of the federal government reaching into my home and controlling the children I gave birth to,” she told a reporter in 1972.⁶⁹ Relatively few people heard McCabe speak when she arrived in Washington DC, and McCabe’s organization soon fell into disarray, but her strategy still resonated on the right and among politicians.⁷⁰

A similar political response followed violent racist resistance to a Boston integration order in 1974.⁷¹ Gerald Ford denounced busing laws in Boston.⁷² The same year, in Milliken v. Bradley, the Supreme Court constitutionalized Nixon’s distinction between de jure and de facto segregation, holding that schools were not responsible for discrimination across district lines unless there was proof of a deliberate plan to draw segregated lines.⁷³

Even after Milliken, politicians continued pushing anti-busing laws as a way of courting a certain kind of voter. Ronald Reagan ran for office in 1980 by echoing Nixon’s opposition to forced busing and support for parental rights.⁷⁴ Republicans in Congress, intent on rolling back any number of Supreme Court rulings, invoked parental rights in proposing to strip federal courts of jurisdiction in cases involving “busing.”⁷⁵ By the end of the 1980s, the Court had fully retreated from its commitment to enforcing Brown, and in its 2007 decision Parents Involved in Community Schools v. Seattle School District Number One, insisted that voluntary integration plans violated the Equal Protection Clause.⁷⁶

The debate over busing and parental rights reflected key dimensions of what this Article identifies as retrenchment by diversion. First, activist groups invoking parents’ rights did so not primarily to request that the government exempt them from otherwise applicable policies but to demand policies that would bind all parents, such as legislation banning busing.⁷⁷ Second, these groups invoked parental rights to resist integration in a more politically palatable way.⁷⁸ Voters or politicians who might be uncomfortable explicitly embracing a push to segregate schools were more often willing to sign on to a fight for parental rights. Third, the politics of parental rights often involved claims made by politicians, not by parents themselves. As often as activists like Irene McCabe invoked parental rights, politicians like Reagan and Nixon made related claims.⁷⁹ Finally, the politics of parents’ rights presented a small (and increasingly unrepresentative or even imagined) group of parents as representative of parents as a class. But at the same time, these politics ignored the rights of other parents, such as those who wanted to strengthen Black community schools or make busing safer, and the preferences of minors, whose education was the most at risk.⁸⁰

B. Parental Rights and Abortion

When the Supreme Court first recognized a privacy right to choose abortion in 1973,⁸¹ the antiabortion movement prioritized not parental rights but a constitutional amendment recognizing a fetus as a rights-holding person under the Fourteenth Amendment.⁸² This Human Life Amendment (HLA), as antiabortion groups called it, would reach both private and state action to make any abortion or liberal abortion law unconstitutional.⁸³ This amendment—and the underlying idea of constitutional fetal personhood—was not negotiable for antiabortion activists, who actively opposed a so-called states-rights amendment in the 1970s that would have allowed states to criminalize abortion.⁸⁴

Although the fight for a constitutional amendment remained the movement’s ultimate goal, antiabortion activists and lawmakers realized that ratifying a Human Life Amendment would not be quick. Instead, they searched for stopgap laws, such as laws requiring parental involvement, while the ratification campaign continued.⁸⁵ When organizations like the American Civil Liberties Union began challenging the constitutionality of laws relating to minors in the 1970s,⁸⁶ antiabortion leaders responded that the real issue was parental rights.⁸⁷ For example, when the Washington Supreme Court struck down a state parental involvement law in 1975, Kenneth VanDerhoef, leader of the National Right to Life Committee (the largest national antiabortion group at that time), maintained that the ruling was a “travesty against the family” “because now parents’ rights have been abdicated.”⁸⁸ To argue for abortion rights for minors, claimed the Catholic Conference, was to “replace parents with a stranger.”⁸⁹

Parental-involvement laws took on renewed importance as the antiabortion movement came to embrace a different strategy: an incremental attack on Roe v. Wade.⁹⁰ The movement first lobbied for the selection of Supreme Court justices expected to reverse Roe and then urged state legislatures to pass laws limiting access that the justices might uphold.⁹¹ In this way, antiabortion lawyers hoped to chip away at Roe and gradually build the case for reversal, all while making it hard for many to get an abortion.⁹²

Parental-rights arguments became a cornerstone of this new incremental attack. In Illinois, for example, one of the leading antiabortion groups, Americans United for Life (AUL), promoted a parental-involvement law. When the case challenging the law reached the Supreme Court, AUL defended it.⁹³ In public, antiabortion organizers stressed that parental-involvement laws protected “parents’ right to know their teenage daughter is seeking an abortion.”⁹⁴ AUL made similar arguments in amicus briefs, urging the Court to uphold parental-involvement laws and “protect[] the fundamental constitutional right of parents to direct the rearing of their children.”⁹⁵

When speaking to other antiabortion activists, however, AUL stressed that these laws would limit abortion and lay the foundation for a ban that applied to everyone. “[O]ur parental notice of abortion legislation could devastate the abortion industry,” explained a 1987 fundraising letter.⁹⁶ Although AUL publicly claimed to be defenders of parental rights protecting minors from life-changing decisions, the group privately emphasized the need to save the “hundreds of thousands of children conceived and aborted by teenagers every year.”⁹⁷

Hartigan turned out not to be a major case (in a per curium opinion, the Court affirmed the Seventh Circuit’s opinion without explanation),⁹⁸ but parental-rights strategies proved central to the accelerating attack on Roe. In 1990, Republicans in the Senate pushed a bill requiring any clinic receiving federal funding to notify the parents of any child who had an abortion.⁹⁹ AUL became involved in two cases, Hodgson v. Minnesota¹⁰⁰ and Ohio v. Akron Center for Reproductive Health, that addressed the constitutionality of state parental-notification bills.¹⁰¹

And larger abortion-rights groups struggled to defeat state parental involvement laws. “[W]hen left to their own devices,” NARAL consultant Harrison Hickman explained in 1991, “voters do not think of these attempts to mandate parental involvement in a minors’ abortion decisions as ‘abortion issues’ in the strictest sense.”¹⁰² This framing of the issue—as one involving parental rights rather than abortion—boosted the antiabortion cause.¹⁰³ In 1991, only 17 percent of Americans polled by Gallup believed that abortion should be illegal under all circumstances—the position that most closely approximated antiabortion demands for personhood.¹⁰⁴ But support for parental-involvement laws was much broader. In 1992, 70 percent of Americans supported parental-involvement laws.¹⁰⁵

At the same time, parental-involvement laws, like the attack on busing, allowed antiabortion groups to stigmatize abortion by presenting it as something from which minors should be protected. “Parents should be informed,” Ann-Louise Lohr of AUL explained in 1989, “before their children are allowed to undergo traumatic and potentially hazardous surgery.”¹⁰⁶ In theory, AUL claimed to be defending laws that “protect[ed] minors’ health and safety and . . . parents’ independent rights,”¹⁰⁷ but in cases like Hodgson and Akron II, and in state legislatures across the country, antiabortion groups underscored that abortion was always damaging and coerced.¹⁰⁸ Antiabortion amici reinforced this point in both cases.¹⁰⁹ As two Christian rights groups— Family Research Council and Focus on the Family—explained: “The bottom line is that vulnerable adolescents are exploited. . . .”¹¹⁰

The absence of parents’ advocacy groups in the abortion context was striking. As the Supreme Court seemed poised to reverse Roe in the early 1990s, no parents’ rights groups demanded laws mandating minors obtain parental consent or provide parental notification; rather, antiabortion groups asked the government to mandate parental involvement and to criminally punish doctors who did not abide by state laws. And as was the case with busing, parental rights were not an end in themselves. AUL framed parental-involvement laws as part of an effort to create cases that would eventually overrule Roe v. Wade.¹¹¹

To the surprise of many, two years after the decisions in Hodgson and Akron II, a Supreme Court transformed by two Republican presidents declined the invitation to reverse Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey.¹¹² Though the Casey court upheld a parental-involvement law, the antiabortion movement turned to other strategies in the following decades.¹¹³ But parental-rights claims periodically and powerfully resurfaced. Since 1999, the National Right to Life Committee had been attempting to close a loophole in parents’ rights jurisprudence with the Child Custody Protection Act, a federal law that would make it a crime for anyone but a parent to take a pregnant minor across state lines to obtain an abortion.¹¹⁴ A second federal proposal, the Putting Parents First Act, mandated that minors get parental consent before receiving abortion referrals or contraceptives from any facility receiving federal funds.¹¹⁵

For the antiabortion movement, parental-rights restrictions served as a crucial incremental step that led to Senate Republicans passing a version of the Child Custody Protection Act.¹¹⁶ “Americans have been saying, ‘Can’t we at least find some reasonable middle ground? Can’t we find some ground to at least make some reasonable restrictions on abortion?,’ ” explained Nevada Senator John Ensign, a key sponsor of the bill.¹¹⁷ “This is a reasonable piece of legislation.”¹¹⁸ The law was hardly the sensible compromise Ensign described—it raised constitutional questions about both the right to travel and the right to abortion. But by invoking parental rights, Republicans hoped to market sweeping legislation as moderate.

Though the CCPA did not pass, and parental-involvement strategies became less central for some years thereafter, they have reemerged since the Supreme Court overturned Roe. In the lead-up and immediate aftermath of Dobbs, some antiabortion lawyers have championed laws said to protect parental rights that prohibit travel for abortion; penalize those who assisted minors crossing state lines for abortion; or apply civil or criminal penalties to those performing or aiding abortion in states where the procedure was legal if they assisted someone from a ban state.¹¹⁹ The ultimate focus of these laws is not parental rights but rather travel related to abortion.

Unsurprisingly, however, busing and abortion opponents were not alone in developing a politics of parental rights, given the retrenchment by diversion strategy’s effectiveness. Claims about parental rights also became central to the struggle against LGBTQ+ rights. ¹²⁰

C. Parental Rights and the Battle over LGBTQ+ Rights

The recent wave of parental-rights legislation is not the first time that claims about parental liberty have been a weapon in struggles over LGTBQ+ rights. As attitudes toward sexual-orientation discrimination changed, conservative Christians looked for new strategies—including parental rights— to counter civil-rights ordinances. These strategies came in the wake of the increasing support for LGBTQ+ rights that followed the Stonewall uprising of 1969, when gay customers frustrated by police harassment fought back.¹²¹ The uprising catalyzed a legal and political mobilization among LGBTQ+ groups.¹²²

In the late 1970s, parental-rights arguments persuaded Miami voters to repeal a civil rights ordinance. In 1977, Anita Bryant—a singer, celebrity, and pitchwoman for Florida orange juice—set out to repeal the ordinance, which prohibited discrimination in employment, public accommodations, and housing due to “sexual or affectional preference.”¹²³ The perception that Bryant was a bigot had cost her personally: Broadcasters temporarily pulled her television show, and LGBTQ+ activists mounted a lobbying campaign to convince the Florida Citrus Commission to replace Bryant with someone who was neither a figure of hate nor a religious zealot.¹²⁴

In response, Bryant repackaged her cause to focus on promoting parental rights rather than challenging civil rights.¹²⁵ “Parents,” she explained in 1977, “have a right to protect their children. . . .”¹²⁶ Bryant launched a group, Save Our Children, that used parental-rights arguments as the centerpiece of a campaign to repeal Miami-Dade’s civil rights ordinance.¹²⁷ Only four months after its passage, Miami voters chose to repeal the city’s civil rights ordinance by a two-to-one margin, and Bryant took her arguments to a national audience.¹²⁸ Christian conservatives mounted other successful repeal efforts: In St. Paul, Minnesota, Reverend Richard Angwin successfully targeted a civil rights ordinance by stressing parents’ rights.¹²⁹

Later in 1978, California State Senator John Briggs, who had participated in Bryant’s Florida campaign, used the same arguments in support of a California ballot initiative that would require state public schools to fire gay or lesbian teachers and those who “advocat[e], solicit[] . . . or promot[e]” homosexual acts; Briggs framed the vote as a referendum on whether “parents have the right to determine who is going to teach our children[.]”¹³⁰

LGBTQ+ activists opposing the Briggs Amendment stressed that it would abridge freedom of speech for straight and queer Americans. The advocacy worked: Politicians from Ronald Reagan to Jimmy Carter opposed the Briggs Amendment, and California voters ultimately rejected it.¹³¹ In court, arguments about the freedom of speech also helped to defeat another Bryant-inspired bill, Oklahoma’s H.B. 1629, which prohibited speech bringing homosexuality “to the attention of school children” as well as speech that was “of a repeated or continuing nature which tends to encourage or dispose school children toward similar conduct.”¹³² The National LGBTQ Task Force—then the National Gay Task Force—challenged the law’s constitutionality, and a divided panel of the Tenth Circuit held that it was overbroad.¹³³ The case went to the Supreme Court, and with Justice Powell absent due to a recent surgery, a short-handed court affirmed by a four-to-four vote.¹³⁴

For Christian conservatives, the AIDS epidemic further complicated the campaign against gay and lesbian Americans.¹³⁵ By the early 1980s, AIDS had killed thousands of Americans. In October 1986, C. Edwin Koop—the pro-life, evangelical surgeon general—issued a report insisting that “AIDS education must start at the lowest grade possible . . . .”¹³⁶ In 1988, Congress sent the report to every American household,¹³⁷ and by 1990, every state had adopted some form of public-school sex education about AIDS.¹³⁸ Homophobia, while still profound, was less pronounced: By 1992, more Americans polled by Gallup thought that same-sex intimacy should be legal, and over 70 percent believed that gays and lesbians should have equal job opportunities.¹³⁹

In this increasingly tolerant climate, groups like the Christian Coalition and the Rutherford Institute, a conservative Christian public interest law firm founded in 1982, invoked the retrenchment by diversion strategy and turned to parental-rights claims.¹⁴⁰ For example, Rutherford reframed its denunciation of condom distribution, “abortion counseling . . . and acceptance of such behaviors as homosexuality and lesbianism” around the crucial significance of parental rights.¹⁴¹

When televangelist Pat Robertson founded the Christian Coalition in 1987, his group also sought to limit the rights of LGBTQ+ Americans and tie constitutional doctrine to Christian faith.¹⁴² The Christian Coalition had significant influence: Between 1987 and 1996, sixteen states adopted anti-gay sex education laws,¹⁴³ and by 1993, conservative Christians claimed to control approximately 2,200 school boards.¹⁴⁴ As the executive director of the Christian Coalition claimed, “ ‘the moral architecture of the soul is being . . . perverted on instruction, centered on issues like self-esteem or sexuality, that is antithetical to the parents’ wishes.’ ”¹⁴⁵

By the mid-1990s, the Christian Coalition and the American Legislative Exchange Council (ALEC), a conservative nonprofit that drafted model laws, had crafted a “parents’ rights amendment” that they fought to include in both state constitutions and the federal Parental Rights and Responsibility Act.¹⁴⁶ The amendment, which stated that “[t]he right of parents to direct the upbringing of their children shall not be infringed,” echoed ideas in the Christian Coalition’s “Contract With the American Family,” a proposal intended to codify a conservative Christian worldview of the law.¹⁴⁷ Presented as a vindication of parents’ liberty, the same ideas seemed more palatable. But in 1996, the first state amendment on the ballot—in Colorado—failed, and arguments around parental rights became less central for a time, especially as conservative Christians focused on other issues, such as same-sex marriage.¹⁴⁸ However, as acceptance of LGBTQ+ Americans has become more widespread in universities, corporate America, and especially among younger Americans, the retrenchment by diversion strategy offers more hope for success than outright opposition. Accordingly, parental-rights arguments have gained influence once again.

II. Why Now? The New Movement Politics of Parental Rights

There is, as Part I shows, nothing new about the legal concept of parental rights or its strategic use through parental-rights politics. What may be more puzzling is why parental-rights claims have become so much more salient in contemporary politics. This Part explores the economic, social, and political trends that have given rise to the renewed politics of parental rights.

A. The Organized Push for Parental-Rights Laws

The politics of parental rights has emerged as a powerful tool for those seeking to reframe commitments that are increasingly hard to defend openly. The two issues that long drove right-wing voter turnout—opposition to same-sex marriage and abortion—have recently become more complicated. Attitudes on same-sex marriage have shifted radically toward acceptance, even among Republicans.¹⁴⁹ And the outraged response to Dobbs v. Jackson Women’s Health Organization has galvanized support for reproductive rights—so much so that politicians are reluctant to trumpet support for extreme abortion bans.¹⁵⁰ Further, the emergence of Gen Z as a voting cohort, and growing acceptance of LGBTQ+ rights, has increased the political cost of denigrating trans people directly or describing same-sex attraction as a disease.¹⁵¹ The murder of George Floyd, and mobilization of the Black Lives Matter movement, revealed the extent of changing attitudes about racial justice among younger Americans, who themselves more often belong to communities of color.¹⁵² The politics of parental rights presents an alternative means to undercut efforts to teach about race in American history or move towards further acceptance of diverse sexual identities.

And parental-rights rhetoric is not just any tool. It allows politicians to effectively code switch, toggling between conversations with base voters on the one hand and independents and moderates on the other. In the past as in the present, the most zealous advocates understand parental-rights claims as a proxy for other beliefs and demands—and are often told as much by social movement organizations and political allies.¹⁵³ Yet politicians can use the language of parental rights to reach moderate voters on the same issue. That is why the same suburban mothers in Virginia who rejected Donald Trump in the 2020 presidential election embraced Glenn Youngkin’s campaign for parental rights in schools, leading him to victory in his 2021 gubernatorial campaign.¹⁵⁴

And politicians can rely on a lavishly funded, well-organized network of right-wing actors to activate voters on parental-rights issues. During the last five decades, the billionaire brothers Charles and David Koch, along with other activists and donors, have built a strong network that not only develops conservative policies, but also serves as a powerful megaphone to advance these same policies.¹⁵⁵ This network, for example, played a key role in turning the term “Critical Race Theory” from a relatively unknown academic movement in law schools¹⁵⁶ into a powerful weapon to criticize grade school lessons regarding race.¹⁵⁷ The conservative activist at the heart of this transition, Christopher Rufo, wrote for a publication funded by the Koch network;¹⁵⁸ the term was then picked up and applied to grade schools by other members of the conservative policy establishment.¹⁵⁹

The movement that conservative actors catalyzed has upended the state policy landscape. It has spawned new organizations—such as the “dark money” funded Parents Defending Education¹⁶⁰ and Moms for Liberty—originally dedicated to opposing COVID-19 restrictions and racial-equity materials in schools and now challenging gender-inclusive materials.¹⁶¹ This movement has also mobilized parental-rights rhetoric to restrict how schools discuss gender identity.¹⁶²

Conservative elites have also mobilized parental rights in the context of abortion. After the Supreme Court’s decision in Dobbs, a wide variety of antiabortion groups explored the possibility of laws directly prohibiting out-of-state travel for abortion or extraterritorially regulating the conduct of actors.¹⁶³ The reason for these bills was clear: Patients could circumvent state abortion bans by traveling or obtaining abortion pills from out of state unless conservative lawmakers could either restrict travel or regulate out-of-state actors.¹⁶⁴ Idaho was the first state to pass one of these “trafficking” laws.¹⁶⁵ Relying on retrenchment by diversion, the legislature turned to the politics, it turned to the politics of parental rights to justify criminalizing the act of helping an unemancipated minor cross state lines to obtain an abortion without consent from a parent or guardian.¹⁶⁶ The law also created a private cause of action against doctors who performed abortions in violation of the law, even if they resided outside the state.¹⁶⁷

Idaho legislators derived the bill from a model law developed by the National Right to Life Committee, a leading incrementalist antiabortion group.¹⁶⁸ In the aftermath of Dobbs, the organization adopted the long-term goal of instituting broad extraterritorial regulation for all pregnant women, particularly with respect to abortion medication.¹⁶⁹ But in the shorter term, it advocated a parental-rights strategy that prioritized “new laws to prevent [the] trafficking of minors for illegal abortions.”¹⁷⁰

B. Parents, Voters, and Parental-Rights Laws

The spread of parental-rights rhetoric reflects more than the power of elite networks. It has flourished because of the unprecedented strain placed on parents caused by the COVID-19 pandemic and its accompanying public health challenges and rapid social changes. The pandemic led to widespread school closures that forced working parents to facilitate their children’s online education.¹⁷¹ This education did not meet the needs of a wide range of learners—and did so in plain view of parents working with children at home.¹⁷² This experience made some parents more involved in their children’s education.¹⁷³ Further, lockdowns and isolation from peers contributed to minors’ anxiety, depression, and other negative mental health impacts, adding new burdens and anxieties for their caregivers as well.¹⁷⁴ Repeated school closures also undermined parents’ confidence in the government’s—or schools’—pandemic response.¹⁷⁵ Those parents most likely to oppose the teaching of sensitive social issues and most interested in preserving parental control were also those—particularly if they were conservative—who believed that the pandemic caused schools to close for too long.¹⁷⁶

The rapid development of COVID-19 vaccines and therapies also proved unsettling to many parents, including some who turned down vaccines for their children that they willingly pursued for themselves.¹⁷⁷ The death and disability produced by the pandemic has magnified parental anxiety—and for some, undermined faith in the government. Educational deficits created during the pandemic continue to put both children and parents under additional stress.¹⁷⁸ It is no surprise that the idea of parental rights has unique resonance in this political moment.

C. States and Partisanship

Partisan divides and diminishing democratic safeguards have also created opportunities for those wielding parental-rights rhetoric. A record number of Americans live in a state where one party controls both the legislature and the governor’s office.¹⁷⁹ As important, the contemporary political moment creates opportunities for state legislatures to push through more extreme policies that most voters would reject.¹⁸⁰ Profound political polarization and, since the 1980s, the rise of negative and affective partisanship has led to a sharp increase in uncompetitive state races.¹⁸¹ The spread of gerrymandering has played a role too. Gutting of the Voting Rights Act, increasing the number of laws limiting early or mail-in balloting, and requiring certain forms of voter identification have all helped widen the gap between what legislators do and what residents in many parts of the country want.¹⁸² As a result, the once-supposed state system of majoritarian rule is “under attack.”¹⁸³

The role of outside organizations has also increased, and interest groups—including those discussed earlier in this Part¹⁸⁴—have found success working with state legislators to adopt their policy proposals.¹⁸⁵ These organizations have had such a large impact because state legislators often have limited resources.¹⁸⁶ State-level polarization has heightened interest group expectations for state lawmakers, and those who vote against sweeping policy changes often face the threat of a primary challenge. For example, in South Carolina, when a handful of Republican lawmakers opposed state bans on abortion, Students for Life, a powerful antiabortion group, promised that each legislator would face a primary challenge.¹⁸⁷ Donors with strong ideological commitments may also expect ambitious changes from lawmakers in polarized states and punish legislators who step out of line.¹⁸⁸

But even in the most polarized and gerrymandered states, party leaders face some constraints. Statewide races—for offices like governor, attorney general, and supreme court—cannot be gerrymandered and often remain competitive in highly polarized states.¹⁸⁹ As important, in many states, voter-driven ballot initiatives can override legislative policy and reject the policies promoted by wealthy patrons and interest groups.¹⁹⁰

Politicians seem to face an impossible task: catering to voters and movements seeking transformational changes while placating the majority that rejects those changes. Through retrenchment by diversion, they attempt to strike this balance, at once undermining existing rights and drawing attention away from that goal.

III. The Framing of Parental-Rights Laws

Courts, family law scholars, and political theorists have long dealt with parental rights, balancing the interests of parents, children, and government—the “triad” of interested parties—that have a stake in decisionmaking regarding children. The new parental-rights claims situate themselves in this long tradition, even while accomplishing other largely unrelated aims. Section III.A briefly describes the constitutional tradition of parental rights. Section III.B turns to how recent parental-rights laws diverge from this legal tradition and effectively divert attention from the true purpose and effects of these laws. Section III.C analyzes the ways these laws are engineered to roll back existing protections in the short-term, while blocking the recognition of new protections in the future.

A. Parental Rights in American Law

Judicial and academic analyses of parental rights have long begun with recognition that parents have strong interests in decisionmaking about their own children’s upbringings. Our system often defers to their interests (1) out of respect for parents’ liberty to direct the course of their own family lives¹⁹¹—a respect that facilitates pluralism—and (2) because parents are believed generally best suited and motivated to further the wellbeing of their children.¹⁹² Thus, in the first Supreme Court decision to announce that parents have due process rights to decisionmaking for their children, Meyer v. Nebraska, the Court struck down a state law prohibiting anyone from teaching any subject to students in a language other than English, including in private schools.¹⁹³ Although the state’s goal of ensuring that all children learn English as their first language might, in the court’s words, “be highly advantageous,” the court asserted that this goal “cannot be coerced by methods which conflict with the Constitution.”¹⁹⁴ Those parents who sought to ensure that their children received non-English instruction must be allowed to enroll their children outside of public schools.

Likewise, two years later, in Pierce v. Society of Sisters, the Supreme Court struck down a state law requiring that parents send their grade-school children to public school.¹⁹⁵ Although the state had the power to ensure that children received an adequate education, nothing in the record demonstrated the need for the extraordinary measure of prohibiting parents from sending children to private schools.¹⁹⁶ “The fundamental theory of liberty . . . excludes any general power of the State to standardize its children. . . .”¹⁹⁷ Accordingly, parents who dissent from public school programming have the right to send children to private school. In subsequent cases, the Court has affirmed the broad authority of parents based on recognition of their role in protecting their children’s wellbeing and preparing them for future obligations.¹⁹⁸

But parents’ interests are not absolute, as the court has recognized. They must be balanced reasonably against those of children—who have their own interests in maintaining their wellbeing and developing independent identities—and those of the state—which has its own interests in protecting the wellbeing and development of minors, in addition to the responsibility to ensure they develop their own autonomy and the requisite skills for citizenship, as they mature into adults.¹⁹⁹ Indeed, less than two decades after Pierce, the Supreme Court directly addressed the conflicts between government’s power to regulate children and parental rights in Prince v. Massachusetts.²⁰⁰ In rejecting a challenge to the constitutionality of a child labor law, the court recognized the parent’s “sacred private interests, basic in a democracy” in the “control of the child and his training.”²⁰¹ Yet it held that the state had its own parens patriae interest in protecting “the welfare of children” and ensuring “that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed” adults.²⁰² Further, in its role of safeguarding the wellbeing of society, government is responsible for ensuring that children develop into sound democratic citizens.²⁰³ The majority’s opinion provided the basis for the state’s authority over children, even if that meant limiting parental rights.²⁰⁴

Taken together, the cases show strong, but not absolute, deference to parents. Parental rights serve as a shield, giving parents the autonomy to “de-standardize” their children by opting out of the state’s preferred course. They do not function as a sword that gives parents the right to assert that all children must be “re-standardized” in some other way. For example, schools’ legitimate choices to educate children about birth control to support their wellbeing may allow objecting parents to remove their children from these lessons; but these objections do not require that birth control programming be entirely discontinued.²⁰⁵

B. Diversion Through Parental-Rights Rhetoric

Recent laws purport to claim the mantle of parental rights long recognized by courts. But instead of promoting parental autonomy while balancing children’s wellbeing and government’s legitimate interests, these laws use this rhetoric as cover to undermine equality-seeking movements. The language of parental rights diverts attention from the upshot of these laws: the rollback of rights by the state. In the meantime, parental-rights rhetoric disguises the harm to children’s wellbeing and to societal interests that these laws threaten. Indeed, many of these laws do not even promote parental autonomy.

Framing these measures as parental-rights laws allows parents to serve as a cover for state action that would otherwise be far more politically difficult to justify. Consider two salient examples. “Don’t Say Gay” laws and bans on teaching “CRT” both prohibit school districts from instructing on topics across particular age groups. These recent laws prohibit a good deal of discussion about the history of race, sexuality, or gender identity altogether, and they have an immediate chilling effect on instruction that would otherwise be permitted. In doing so, they send a message that lessons about these issues are controversial, which has an impact on the school environment for students, their parents, and their teachers. Yet framing these regulations in terms of parental autonomy allows governments to ban such lessons without directly stating opposition either to LGBTQ+ rights or to racial equality efforts.²⁰⁶

Abortion laws passed in the name of parental rights draw attention away from an unpopular agenda. This is the case for Idaho’s “trafficking law,” which, as noted earlier, was originally drafted as part of a broader set of laws designed to eliminate virtually all access to abortion.²⁰⁷ Following the Dobbs decision, the vast majority of Americans oppose the destruction of abortion rights, causing Americans in states with abortion restrictions to grow even more resistant to those bans.²⁰⁸ The strong political pushback that followed legislative attempts to roll back abortion rights²⁰⁹ and the strength of public opinion against further efforts to ban abortions, such as imposing bans on travel, make new restrictions politically risky.²¹⁰ Yet imposing such restrictions on minors distracts attention from the effort to block abortions altogether.²¹¹ Most states already have laws on their books requiring parental consent for minors seeking abortions within the state.²¹² Further, most adults generally approve of such parental consent laws.²¹³ In the face of these obstacles, Idaho’s law criminalizing those who help minors travel is a less risky way to ban more abortions.²¹⁴

Meanwhile, although these laws use the language of parental rights, many ultimately do little to increase parental autonomy. For example, rather than allow dissenting parents to opt their children out of school programming they deem objectionable, modern parental-rights regulations—“Don’t Say Gay,” anti-“CRT” laws—ban such lessons for all children.²¹⁵ These laws privilege autonomy for parents who object to these lessons and undermine autonomy for the many parents who would prefer their children learn these lessons at school. In contrast, allowing objecting parents to opt their children out would have increased the autonomy of dissenting parents without decreasing the autonomy of approving parents.²¹⁶

Invoking parents as the actors in this legislation also misleadingly suggests that the laws’ dictates spring from parents acting out of love and concern for their children. That is, after all, a cardinal reason that parental rights are treated with such respect in the American system.²¹⁷ But considerable evidence suggests the legislators—who, of course, are the real actors here—are largely responding to the conservative movement activists and interest groups orchestrating the reversal of protections for LGBTQ+ persons and identities.²¹⁸

Framing these laws as parental-rights laws also diverts attention away from the significant potential harm these laws pose to children themselves; the framing suggests that, since parents act in their children’s best interests, the laws will increase children’s wellbeing. Not so: These laws considerably reduce children’s wellbeing. For example, “Don’t Say Gay” and other laws governing treatment of LGBTQ+ issues in schools ban a range of evidence-based programs and practices that reduce the high risks of harm to LGBTQ+ youth.²¹⁹ LGBTQ+ youth have higher rates of attempted suicide than do their peers, and more than half of LGBTQ+ youth in middle and high school reported that they had been bullied in the previous year.²²⁰ An affirming school environment plays an important role in protecting LGBTQ+ youth from harm.²²¹ But prohibiting an LGBTQ+-inclusive curriculum and other discussion of LGBTQ+ issues makes it far harder for schools to create the requisite supportive environments.²²²

Lessons on racism, meanwhile, have been shown to decrease racism among white students and the bullying of Black students.²²³ Education about racial history also raises Black children’s wellbeing.²²⁴

Likewise, the Idaho law barring “alleged abortion trafficking” of minors masks harms tied to requiring birth for minors. A wealth of evidence shows that prohibiting access to abortion subjects pregnant minors to significant risks of injury and death.²²⁵ It also drastically forecloses future opportunities: As the Turnaway Study documented, those denied access to abortion are less likely to proceed with their career; more likely to be unable to pay for basic necessities; more likely to live in poverty; and more likely to face unemployment.²²⁶

By assigning responsibility to a hypothetical group of parents, these laws also obscure the ways they warp the government’s traditional constitutional responsibility to children. As noted, the government has specific responsibilities when it comes to children: safeguarding the wellbeing of minors, ensuring that they “develop a baseline level of autonomy as they approach adulthood,” and guaranteeing that they are prepared to assume responsibilities as citizens in a democracy.²²⁷ Recent parental-rights laws undercut all these responsibilities.

Instead, these laws invoke the state’s power over children to further illegitimate objectives. The state’s authority over children, courts have made clear, stems from their minority, which makes them both vulnerable and capable of maturation. These characteristics allow the state to impose restrictions that it may not impose on adults, such as requiring parental consent.²²⁸ By the same token, this justification properly sets the boundaries for the use of state power over minors.²²⁹ In particular, the state may not legitimately impose restrictions on minors’ ability to perform an activity simply because it dislikes the activity or because it is politically easier to impose burdens on the rights of minors than on the rights of adults.

Yet restricting the rights of children for reasons other than their minority is exactly what laws that use retrenchment by diversion are intended to do. Take Idaho’s law criminalizing travel across state lines for minors’ abortions without parental permission.²³⁰ Prohibitions on pregnant adults’ interstate travel for abortion are currently considered legally dubious, not least because Justice Kavanaugh, a key vote in abortion cases, expressed doubt that laws limiting the right to travel would pass muster.²³¹ In the face of this obstacle, Idaho imposed the restriction on traveling, including the parental-consent provision, only on minors. Yet strong evidence suggests that Idaho legislators did not act out of concern for the wellbeing of these minors nor to further other objectives related to their minority. Rather, Idaho legislators wanted to impede access to abortions generally.²³²

In a polarized nation, not every lawmaker or parent will attach the same weight to children foregoing particular education or avoiding these harms. For example, some parents may be willing to trade off a higher risk of LGBTQ+ youths’ self-harm to prevent their children learning LGBTQ+ history. Retrenchment by diversion, however, allows voters to avoid these hard choices. By framing these laws as protecting parental rights, lawmakers hide the harms their laws do and deflect responsibility for those harms onto parents.

C. The Retrenchment Facilitated by Parental-Rights Rhetoric

Retrenchment by diversion uses an easy target to gradually hollow out a liberty. The recent wave of laws passed in the name of parental rights illustrates this strategy.

In dictating public school instruction, these laws seek to erode rights by both setting a precedent that can later help roll back the liberties of adults and shaping the views of minors, even those less directly impacted by these laws. The laws rely on the idea that limiting rights for minors in the present might change the attitudes of their classmates when they become adults. Complaining that “[l]eft-wing radicals have spent the past 50 years on a ‘long march through the institutions,’ ” Christopher Rufo—the activist who weaponized the term “Critical Race Theory”—vowed to use public education “to reverse that process, starting now.”²³³ A Manhattan Institute paper explains the urgency of this mission. It asserts that a survey of young people revealed that exposure in school to “critical social justice” concepts, such as implicit racial bias, “appear to be having a major impact in converting young people to left-wing beliefs and Democratic partisanship.”²³⁴ Richard Corcoran, Florida’s Education Commissioner under Ron DeSantis, compared the fight over education between the right and the left to the “warring in the streets” in Germany before World War II. “Our weapon,” he declared, “is education.”²³⁵

In the near term, “Don’t Say Gay” laws and “CRT” bans win acceptance from voters who would not tolerate similar restrictions placed on adults. In the longer term, by shaping education, these laws seek to assist rolling back a much longer list of protections.

Take Arkansas’s Given Name Act, which requires that parents provide written consent for changes in youths’ name and pronoun use at school.²³⁶ Voters who may bridle at the idea of prohibiting adults from using a name or pronouns that match their gender identity might accept such a limit if applied to minors. In the present, LGBTQ+ students affected by the law will have a harder time exploring their identities and may be less likely to express themselves openly even after they reach adulthood.²³⁷ Other students will also receive the message that there is a reason not to respect the names and pronouns of those who seek to transition gender expression. At least implicitly, this kind of law sends the message that LGBTQ+ identities are dangerous, inappropriate, or wrong. Over the long term, this message will make it easier to roll back other LGBTQ+ protections.

The new politics of parental rights also involves legal incrementalism. The Supreme Court has long recognized that children, because of their minority status, do not necessarily have the same constitutional rights as adults.²³⁸ As noted earlier,²³⁹ Idaho’s law criminalizing travel across state lines only for minors’ abortions without parental permission is a relatively limited—albeit deliberate—first step toward further restricting abortion more generally.²⁴⁰ Although Idaho’s enactment represents a major step towards state control over abortions, it is more likely to survive a court challenge than general restrictions on pregnant persons.

Bans on teaching about “CRT” demonstrate similar efforts at erosion. Fresh limits on “CRT”—framed in the laws as an ill-defined and broad category of instruction related to race²⁴¹—will affect all students in the near term and set a precedent that instruction on the history and present-day effects of racism is unnecessary or dangerous.²⁴² Conservatives have already used similar logic to challenge diversity, equity, and inclusion programs in both universities and workplaces.²⁴³ At the same time, limiting instruction on the history and complexity of race seeks to shape the attitudes of younger Americans, who might themselves oppose instruction on the legacy of racism when they have children of their own.

IV. Separating the Rhetoric from the Reality of Parental Rights

This Part sets out a two-tier test for differentiating the strategic use of retrenchment from valid assertions of parental rights. To be clear, we propose this test to guide academics, the press, and the public in distinguishing laws that genuinely support parental rights from those that simply use parental-rights rhetoric to engage in retrenchment by diversion. Yet, because this test is adapted from a combination of parental rights doctrine and antidiscrimination law, we believe it can also guide courts analyzing the legitimacy of parental-rights laws.

Section A sets out a threshold inquiry to begin this process: This inquiry arises from our earlier discussion showing that legitimate parental-rights claims in constitutional jurisprudence allow parents individualized decisionmaking rights over their children and do not require the standardization of children.²⁴⁴ Put another way, true parental rights give demurring parents the opportunity to remove their children from select government edicts with which they disagree. Here, we maintain that this constitutional principle should be used to distinguish parental-rights rhetoric from legitimate assertions of parental rights. Section A applies this threshold inquiry to two case studies: “Don’t Say Gay” laws and anti-“CRT” laws.

Section B sets out a second tier for laws that survive our threshold inquiry. We make the case that even laws granting individualized parental decision making sometimes use the retrenchment strategy when legislators give parents decisionmaking power to accomplish objectives that politics or the law would make difficult to legislate directly. We first set out three indicators that help identify this strategy: (1) the law’s burdening of a traditionally disadvantaged group; (2) a pattern of actions by lawmakers causing harm to the groups burdened by the statute or disfavoring the activity disadvantaged by the statute; and (3) lawmakers’ failure to vest decisionmaking power in parents for related activities. Section B shows how the two tiers work together in analyzing two laws that pass the threshold inquiry—the Idaho anti-trafficking law and the Arkansas law requiring parental consent for teachers to use transgender children’s preferred names and pronouns—but nonetheless show strong evidence of this strategy in both cases.

Section C finally turns to consider two examples of laws that pass our proposed two-part test: a California law providing that parents must consent before a minor can receive gender-affirming care and laws requiring parental consent for children to be vaccinated. As we note in this discussion, our test seeks simply to distinguish genuine parental rights laws from those that use the retrenchment by diversion strategy. The fact that a law may pass our test does not mean that it should necessarily be upheld by courts. To decide that, courts must ensure that it adequately balances parental-rights claims against those of the other members of the triad—children and government. We do not aim to settle how these disputes should be decided. Others have made a powerful start in addressing these issues.²⁴⁵

We also note that our examples either clearly meet or clearly fail our test. Not every law will produce such clearcut results under our test.²⁴⁶ We leave discussion of how to resolve those difficult cases for a later day. Instead, we seek only to set out a framework for understanding retrenchment by diversion, develop guidelines for identifying it, and explain why laws employing these strategies should be distinguished from legitimate assertions of parental rights.

A. The Threshold Inquiry: Individualized Parental Decisionmaking

We noted in Section III.B that Supreme Court doctrine has long required respect for parental autonomy, a respect that facilitates pluralism. Importantly, from the Court’s earliest recognition of parental rights, that autonomy has been framed as a delicate balance between parents’ and the government’s authority to make decisions regarding children.²⁴⁷ On issues in which parental autonomy prevails, courts give dissenting parents the right to remove or otherwise opt their children out from applicable state policies or programming.²⁴⁸ Doing so balances parental autonomy against the state’s own legitimate interests in supporting children’s wellbeing, ensuring children become both sound adults and citizens. This principle serves as our threshold inquiry: Does the law give parents individual autonomy to make decisions? Laws that violate this principle—failing to give parents individual decisionmaking rights or cancelling school programming altogether rather than allowing dissenting parents to opt their children out of such programming—indicate that the law seeks ends beside supporting the parental autonomy validated in our tradition.

Many laws passed under the label of parental rights fail this first inquiry. Although it might seem, at first glance, that “Don’t Say Gay” laws and “CRT” bans advance family autonomy and pluralism, both exceed the legitimate scope of parental rights. Contrary to the jurisprudence of Meyer and Pierce, these laws do not simply allow dissenting parents to opt their child out of state programming they disagree with. Instead, these laws scrap the programs entirely. To be sure, a case could be made that these laws leave parents free to educate their children in fora beyond the classroom, and therefore still advance family autonomy and pluralism. But the reality is quite different. First, few parents have the financial means to arrange private lessons or possess the in-depth knowledge of racial or LGBTQ+ history to educate their children by themselves. More importantly, treating these laws as autonomy-facilitating misses a critical distinction that has been drawn in constitutional jurisprudence analyzing restrictions on parental rights. Conventionally, judicial decisions or laws affording rights to parents allow parents to make individual decisions about their own children’s upbringing, resisting the coercive power of the state.²⁴⁹ Although the LGBTQ+ and “CRT” laws speak the language of parental rights, they impose a new norm on all children and their parents: Not only will children of parents who object to such lessons (44 percent nationally) be removed from them, the many children of parents who would prefer that their children learn these lessons in school (41 percent of parents nationally) will also be excluded.²⁵⁰ Put simply, the new laws implement the alleged choices of some parents while removing that choice from other parents—and from educators. Accordingly, “Don’t Say Gay” laws and “CRT” bans fail our first test; defenses of parental rights on behalf of these laws should be treated as instances of the retrenchment by diversion strategy.²⁵¹

B. Beyond the Threshold Test: Indicators for Identifying Retrenchment by Diversion

Many invocations of parental-rights rhetoric will be distinguishable from genuine parental-rights laws based on our threshold test. In some cases, however, legislators and advocates will grant parents individualized decisionmaking power with the purpose of distracting from other, deeply unpopular goals. In this section, we propose an additional standard to analyze such laws. First, we set out indicators to help distinguish legitimate parental-rights laws from those using the retrenchment by diversion strategy. The first of these indicators—the law’s burdening historically disfavored groups—is a useful—though not dispositive—indication of whether the law targets an equality-based movement. The second and third indicators help focus on whether framing the law in terms of parental rights is the genuine motive of the enacting legislators or a pretext for other motives. Laws that meet the first indicator but not the second or third should not be deemed examples of retrenchment by diversion because, absent other direct evidence of this strategy, they lack the necessary indirect evidence to demonstrate that legislators are using parental rights to distract from their genuine motivations. Next, we apply this test to two laws that pass the threshold inquiry—an Arkansas law requiring parental consent for public school personnel to change children’s names and pronouns and the Idaho “alleged abortion trafficking” law—to show how these indicators demonstrate the retrenchment by diversion strategy.

1. Indicators of Retrenchment Through Diversion

Not all grants of parental rights that further the retrenchment by diversion strategy will clearly announce themselves. We suggest that three indicators adapted from antidiscrimination law offer good evidence of this strategy for those laws that clear the threshold stage: (1) the fact that the law burdens historically disfavored groups; (2) a pattern of actions by lawmakers causing harm to the groups burdened by the statute or disfavoring the activity disadvantaged by the statute; and (3) inconsistencies or weaknesses in the justification for giving parents decisionmaking power. We discuss each element of this “indicators test” in turn.

(i) The Law Burdens Historically Disfavored Groups

Legislation passed under the mantle of parental rights that implicates historically disfavored groups raises the possibility that legislators are gaming parental consent to burden these groups and identities. In the equal protection context, courts have long held that laws which rely on classifications involving discrete and insular minorities should be deemed suspect and held to higher levels of justification.²⁵² Even when a law is facially neutral, the fact that it weighs more heavily on such groups “provide[s] an important starting point” in detecting discrimination.²⁵³ In the context of parental consent, a particularly telling indicator is when the parents in the families most burdened by a parental-rights law strongly oppose such laws. This suggests that the law’s legislators and supporters are targeting other families’ children rather than attempting to support parental decisionmaking for their own children.

(ii) Pattern of Actions by Lawmakers Disfavoring the Particular Group or Activity

Evidence of a consistent pattern of actions by lawmakers imposing harm on a particular disadvantaged group or impeding a particular activity should also be considered indicative of the retrenchment by diversion strategy. Courts routinely consider evidence of such patterns of action against disadvantaged groups to be relevant to establishing intent to discriminate.²⁵⁴ The same logic applies to patterns of action to prevent an activity.

(iii) Inconsistencies or Weaknesses in the Justification for Giving Parents Decisionmaking Power

Finally, when legislators offer reasons for vesting particular decisions in parents, inconsistencies or weaknesses in their justification for doing so suggest that their reasons are pretextual. When assessing pretext in other contexts, courts routinely treat evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in an actor’s proffered legitimate justifications as evidence of pretext.²⁵⁵ In the context of parental-rights laws, this evidence can appear in several different forms. For example, giving parents consent on the ground that minors lack the maturity to handle a risky choice should be deemed suspect where the legislature does not take away other, equally risky choices from minors. Likewise, giving parents the right to consent on the ground that youth are not yet mature enough to make that particular decision should be considered suspect when empirical evidence indicates that they are in fact able to make decisions in a mature manner.²⁵⁶

2. Applying the Indicators

Consider these indicators with respect to the Arkansas Given Name Act, which requires that parents provide written consent before teachers may address children by pronouns and names other than those assigned at birth.²⁵⁷ On its face, the provision simply grants parents the freedom to sign off on their child’s name and pronouns; it might therefore be taken as intended simply to further the goal of parental autonomy. And in fact, the law does not refer to transgender students anywhere on its face, which reinforces the idea that the legislation merely seeks to promote parental rights and that its purpose is unrelated to rolling back transgender rights.²⁵⁸

Yet although the Arkansas law is facially neutral, there can be no question that it fails the first element of the indicators test: The law more heavily burdens transgender and gender-nonconforming students, who will not be referred to by their preferred names and pronouns absent their parents approving. Neither is there any doubt that transgender people have been an historically disfavored group.²⁵⁹

Turning to the second indicator, Arkansas lawmakers have a clear pattern of both seeking to pass and passing legislation that disadvantages both transgender children and adults. In 2021, the state prohibited schools from allowing transgender girls and women to participate on sports teams that align with their gender identity;²⁶⁰ considered a bill allowing civil suits against government entities that permitted transgender persons to use restrooms that comported with their gender identity;²⁶¹ and banned gender-affirming care.²⁶² In 2023, legislators sought to enact legislation that classified and regulated any drag performance as an adult-oriented business that “appeal[s] to the prurient interest[s],” although the bill was later amended to delete explicit references to drag shows.²⁶³ In addition, Arkansas lawmakers who have supported these bills are on record expressing disapproval of and distaste for transgender persons, including adults: For example, one state senator asked a transgender health care professional who was testifying about gender-affirming care for minors if she “ha[s] a penis.”²⁶⁴ Another declared that “[t]he gender spectrum is a myth, as it’s simply not possible for people to be anything but a man or a woman . . . .”²⁶⁵

Finally, considering the third indicator, another provision of the Act undermines the claim that the legislation was designed to advance parental autonomy over their child’s gender expression at school. That provision allows teachers and classmates to reject using the names and pronouns of children seeking to transition, even when parents have signed off on the name and pronouns.²⁶⁶

The sum total of these indicators makes a strong case that the Arkansas law allowed parental consent over their children’s names and pronouns not to increase parents’ decisionmaking autonomy but to express disapproval of and disadvantage transgender children, thereby rolling back LGBTQ+ rights. The law should therefore be treated as an example of retrenchment by diversion, rather than a legitimate parental-rights law.

An examination of the Idaho “alleged abortion trafficking” law also suggests use of the retrenchment by diversion strategy. Although this law passes the threshold inquiry, its status as a legitimate parental rights law is undercut by application of the indicators test. First, bans on abortion disproportionately burden women, a historically disadvantaged group.²⁶⁷ Second, Idaho lawmakers have shown clear hostility to pregnant women accessing abortion. In 2020, before the issuance of Dobbs, the state passed a trigger law stating that if and when states are again allowed to ban abortion, the procedure would be completely banned and criminalized in Idaho beginning at conception except for cases that threatened the life of the mother and very limited exceptions for rape or incest.²⁶⁸

Further, consideration of the third indicator regarding pretext suggests that the “trafficking” act’s nod to parental consent was motivated by the intent to shrink the number of abortions. This can be seen in the act’s structure: Rather than provide that lack of consent is an element of the crime, the legislation makes consent only an affirmative defense.²⁶⁹ Doing so puts the burden of showing consent on those charged, rather than the state. This suggests that the legislation seeks to chill the activity of those seeking to aid pregnant teens, regardless of parental consent. The fact that an array of empirical evidence shows that minors’ decisionmaking regarding abortion is very similar to adults’ decisionmaking regarding abortion,²⁷⁰ also suggests that minors do not need added protection to make such decisions and, thus, that the law is pretextual. Finally, pretext is supported by the fact that, at the time that Idaho passed the law, it allowed mature minors to consent to a range of medical treatments, many of which are riskier than abortion. Only in the summer of 2024 did the legislature roll back those permissions by a party-line vote, potentially to make it more difficult for minors to obtain contraceptive services and thereby restrict reproductive rights further.²⁷¹

In sum, strong evidence suggests that Idaho legislators used the pretext of parental rights rather than proceeded openly because a similar ban on the conduct of adults would have been legally dubious²⁷² and politically risky.²⁷³

C. Laws Advancing Authentic Claims of Parental Rights

Not all laws associated with parental rights will fail our two-part test. In this part, we explore two examples of laws requiring parental consent for medical care that meet both parts. The first of these laws relates to gender-affirming care. Recent debate about gender-affirming care has focused on states that restrict access to minors even with their parents’ consent.²⁷⁴ However, a parallel discussion has unfolded around the laws of states that permit access to gender-affirming care, but only with parental consent.²⁷⁵ Some of those state laws require parental consent for any medical procedure or treatment, including gender-affirming care.²⁷⁶

Consider California’s law requiring parental consent for gender-affirming care to minors.²⁷⁷ Because this statute passes our threshold standard of giving parents individualized authority over their child’s access to such care, we must evaluate it under the indicators test. The first indicator is at least arguably present: Supporters of LGBTQ+ rights have highlighted the burden parental-involvement laws put on some transgender, nonbinary, and intersex youth, who suffer high rates of family rejection.²⁷⁸ Turning to the next two indicators for pretext, indicator two shows no pattern of actions by the California legislature of disfavoring LGBTQ+ persons generally or access to gender-affirming care specifically. Indeed, California law has taken steps to shield providers and other members of a support network who offer gender-affirming care to patients from other states.²⁷⁹ Further, legislators passed a bill that would make a parent’s resistance to gender-affirming care a factor in custody decisions before Governor Gavin Newsom vetoed it.²⁸⁰ Finally, considering the third indicator, no good evidence exists regarding inconsistencies in the justification for giving parents the authority to consent, given that California requires parental consent for most medical procedures, even for older minors.²⁸¹ Given the lack of evidence suggesting pretext, we cannot say that the California law reflects retrenchment by diversion. The law should therefore be deemed a legitimate claim of parental rights.

We emphasize that our two-tier test simply distinguishes between laws that authentically invoke our long tradition of parental rights and laws that use parental-rights rhetoric strategically. We do not suggest that laws that pass our test have struck the proper balance between the rights of parents, the needs of minors, and the state’s obligation to protect minors, or that parents’ rights should prevail when courts assess these laws.²⁸² Nevertheless, we agree that the law does not qualify as retrenchment by diversion.

The same is true of laws requiring parental consent for vaccines. Although the pandemic has brought increased attention to vaccination for minors, the question of whether parents must consent to a proposed vaccination is not new: Parental consent has historically been required before children can be vaccinated.²⁸³ To be sure, some vaccinations are mandated as a prerequisite for attending public schools,²⁸⁴ but even then, parents retain the right to claim medical, religious, or philosophical exemptions.²⁸⁵ Although some states also allow mature minors to consent to medical treatment, including vaccinations, those states do not separate out by political ideologies;²⁸⁶ instead, the statutes seem designed to recognize the legitimate interests of adolescents, while retaining parental consent for younger children.

Under our threshold test, the vaccination laws give individual parents decisionmaking rights over children. Even mandatory school vaccinations that appear to override parental rights apply to a small group of vaccines, and, in accord with the threshold test, the exemptions provide powerful respect for parents who want to opt out. When it comes to the indicators test, consent to vaccination laws themselves do not disproportionately burden historically disfavored groups, nor are they linked to patterns of laws that do so. Turning to whether there are inconsistencies or weaknesses in the justification for giving parents decisionmaking power in this context, the longstanding requirements fit into the traditional understanding of parental rights over their children and apply the same law to all types of vaccines. Accordingly, these vaccination laws meet our test for laws legitimately invoking claims of parental rights.

In the vaccination context, as is true with the California gender-affirming care statute, the tests proposed in the Article simply establish the constitutional authenticity of the parental rights claim rather than necessarily reflecting value judgments on whether such laws achieve optimal results for minors.

V. Resisting Retrenchment by Diversion

In this Article, we have developed a new framework for understanding parental-rights legislation. This approach shows how some of that legislation should be understood as a form of retrenchment by diversion, meaning that such laws seek to corrode existing protections and stymie future progress for particular rights-based movements without explicitly attacking that social movement. This Part considers methods for addressing the current parental-rights backlash, while also providing a template for challenging retrenchment by diversion more broadly, both within and outside of the legal system.

Courts have developed tests to distinguish pretextual justifications that conceal discriminatory motives in other contexts, including in enforcing mandates against employment discrimination²⁸⁷ and housing discrimination.²⁸⁸ Using the test set out in Part IV, courts can do the same in the context of laws that justify themselves as supporting a seemingly constitutionally-appropriate goal, but which are really intended to further discriminatory ends. Courts should not consider laws that fail our test to be justified by the claimed constitutional doctrine.

As the epigraph of this Article indicates, some courts are already refusing to treat laws that use the retrenchment by diversion strategy as legitimate parental rights laws.²⁸⁹ We encourage other courts to distinguish between genuine parental rights laws and those that use the façade of parental rights to accomplish retrenchment by diversion.

Further, litigants should also challenge some parental rights laws in court by turning around the very justifications for the retrenchment. Many recent laws passed in the name of parental rights arguably violate the substantive due process rights of parents insofar as they do not allow parents to make individualized decisions. Recent challenges based on this theory have been brought, most prominently, against state efforts to prohibit the use of students’ preferred names and the freedom to teach about gender identity;²⁹⁰ to outlaw cabaret performances;²⁹¹ and to prohibit gender-affirming care.²⁹² In these cases, plaintiffs have argued that the Fourteenth Amendment protects individual parents’ rights to the care, custody, control, and medical decisionmaking authority of their children.²⁹³ A primary reason for constitutional and pragmatic deference to parental rights is the strong presumption that parents are best-suited to promote their children’s wellbeing.²⁹⁴ Indeed, cases involving bans on gender-affirming care and challenges to drag performances show how parental-rights claims can be double-sided, used both to justify and to challenge laws.²⁹⁵ For example, in challenging Tennessee’s ban on gender-affirming care, parents claimed a constitutional right to direct the medical care of their children.²⁹⁶ Similarly, in their suit against Arkansas’s ban on gender-affirming care, the plaintiff-parents claimed that their “fundamental right of parental autonomy includes the right of parents to seek and follow medical advice to protect the health and well-being of their minor children.”²⁹⁷

Courts may be (and have been) divided in their responses to such claims.²⁹⁸ In considering the Tennessee gender-affirming care ban, the Sixth Circuit acknowledged that parents do typically act in the best interests of their children, but the court found that interest counterbalanced by the states’ interest in protecting children’s welfare.²⁹⁹ By contrast, an Arkansas district court recognized the state’s interest in children’s wellbeing but held that the state’s ban on gender-affirming care violated the “parents’ fundamental right to provide healthcare for their children and [inappropriately ga]ve that right to the Arkansas Legislature.”³⁰⁰ Just as parental rights can be used to challenge a ban on gender-affirming care, so too might parents challenge the laws addressed in this Article. These laws coerce parents into accepting the state’s preferred norm with respect to their children, rather than supporting parental autonomy.³⁰¹ Parents could also claim that the laws do not protect children’s wellbeing: that is, laws that preclude children from learning about racial equity and gender identity do not serve children’s interests.

Another potential argument centers on the First Amendment’s protection for free speech, which might support direct challenges to laws limiting what can be taught in schools or what issues health professionals can discuss with minors.³⁰² In the past, when conservative Christians used retrenchment by diversion in the name of parental rights, arguments that centered on freedom of speech helped to stem the tide of restrictive laws such as the anti-LGBTQ+ Briggs Amendment.³⁰³ More recently, in the somewhat analogous situation of a court challenge to a Tennessee law prohibiting “adult cabaret entertainment” (meaning drag shows) in any location accessible to minors, the judge found the statute an unconstitutional burden on speech under the First Amendment because it targeted gender-identity content.³⁰⁴ Although the court recognized that the state had a “compelling state interest in protecting the . . . well-being of minors,” the state could not, “in the name of protecting children,” regulate speech “for a reason that is unrelated to protecting children.”³⁰⁵ The court also found that the statute had an impermissible purpose, especially criminalizing adult cabaret entertainment for everyone, not just minors.”³⁰⁶

Other promising avenues involve challenging these laws on the ground that they discriminate on the basis of race or sex.³⁰⁷ Some potential claims may turn on facial classifications: Just as the Supreme Court in Bostock v. Clayton County held that, under Title VII of the Civil Rights Act, gender identity and sexual orientation classifications always count as sex classifications,³⁰⁸ laws that regulate based on birth sex do as well. But challengers could also assert that the state’s rationales for differential treatment of different groups are pretexts for discrimination.

Indeed, purpose and differential impact were critical to a federal district court in Florida, which considered a challenge to the state’s refusal to allow Medicaid to pay for gender-affirming care.³⁰⁹ The court found that because opposition to transgender individuals motivated the law, and because cisgender individuals could receive the same treatment, the law violated the Equal Protection Clause.³¹⁰ This claim—that state disapproval of individuals based on gender identity or race is a motivating factor in enacting a statute—is a potential argument to lodge against actions resulting from retrenchment by diversion.³¹¹

States’ constitutions may well provide more protection than the federal constitution on issues such as student privacy rights or abortion.³¹² State statutes against race or sexual orientation discrimination might also provide a basis.³¹³ Common law claims might at least protect mature minors when it comes to abortion access or, perhaps, gender-affirming care.³¹⁴

Options beyond the courts are also available to challenge retrenchment by diversion. A first task is to expose the misdirection for what it is. Parents opposed to the current crop of parental rights laws can themselves point out the deficiencies of the laws and make clear that they ignore the rights of many other parents, especially those who are marginalized. What some politicians are currently embracing is not parental rights properly defined, and other parents should reclaim a meaningful vision of parental rights—and the rhetoric—for themselves.

Public campaigns that emphasize the impact on children of not learning about sexual identity or race and racism in American history or of not having access to abortion or gender-affirming care can educate communities about what is at stake.³¹⁵ Experts in child wellbeing should seek to call public attention to the many ways in which current laws undermine claims to support children. Using the ballot is another option: Those who truly support children should run to oppose the legislators who have enacted bills with the professed purpose of protecting parental rights, but which truly harm children. Elections at the school board, city, county, and state levels have a significant impact on whether legislation promotes child wellbeing. Moms for Liberty, for example, has mobilized to influence school board elections.³¹⁶ An effort to match that level of organizing is important.

Consider that voters at the state and local level can also elect not just judges but also the prosecutors who make decisions on whether to charge statutory violations.³¹⁷ Local, state, and federal administrative agencies have critical policy-making abilities, such as education or health care standards or even funding for abortion.³¹⁸

Law professors and students, too, have an important role in this fight. We see the work of explaining that some assertions of parental rights are actually a coded means of pursuing divisive policy objectives with real costs as part of an effort to “push against the harmful tendency in doctrinal scholarship of eliding ideological effects.”³¹⁹ Naming retrenchment by diversion and recognizing its operation is an important first step to creating a new, more egalitarian approach to parental rights—and to eradicating laws passed in parents’ names that neither enhance their liberty nor protect the welfare of their children.

Conclusion

Those who support democracy and good government should consider laws that use parental-rights rhetoric for strategic purposes deeply troubling no matter where they sit on the political spectrum. For a system of collective self-rule to function well, voters must be able to assess their representatives based on their platform and performance in office. To the extent that legislative actions are packaged in misleading ways, and that legislators’ agendas remain obscured, voters cannot evaluate either legislation or their representatives fairly. To be sure, political rhetoric will almost always present an oversimplified version of reality, and legislators will always seek to sell their proposals in ways that appeal to as broad a following as possible. Parental-rights rhetoric, though, pushes these limits far beyond the usual bounds. This packaging presents not a misstatement of degree, but a misstatement of kind altogether.

The new politics of parental rights does a second type of damage to democracy. Although the word diversity has become politicized in our current political climate, our country was founded by religious dissenters who wove respect for pluralism into the basic framework of our country. As the Supreme Court recognized in Prince v. Massachusetts, “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies.”³²⁰

Essential to the preservation of that freedom is the lesson that everyone in a divided polity has a right to their own opinions, as well as equal citizenship and equal political rights. Learning those lessons requires exposing students to deep differences in belief systems with which they disagree. Bans that shield students from lessons containing viewpoints with which legislators disagree shirk the government’s duties.

In the past as in the present, parental-rights politics have been a particularly potent example of strategic misdirection, but there are and will be many others. Naming retrenchment by diversion alone will not put a stop to the kind of backlash now at work behind the rhetoric of parental rights. But to the extent that resistance to civil rights is dynamic, civil rights movements must be dynamic too, attuned to the evolving strategies used to resist new rights claims and destroy old protections.

* Martin Luther King Jr. Professor of Law, UC Davis School of Law.
** Graham Kenan Distinguished Professor of Law, University of North Carolina School of Law.
† Justice Anthony M. Kennedy Distinguished Professor of Law, Armistead Dobie Research Professor, University of Virginia School of Law. All of us contributed equally, and the authors are listed alphabetically by first name. Thanks to Clare Huntington, Courtney Joslin, Kate Silbaugh, Sean Williams, Danielle Wingfield, and other participants at the Family Law Scholars & Teachers Conference, to Kerry Abrams and Marie-Amélie George and colleagues at the Duke Family Law Scholars Roundtable, to participants at the UNC Law Summer Workshop, including Carissa Byrne Hessick, Eisha Jain, Holning Lau, and Rick Su, and to Halley Dannemiller, Siarra Deol, Claudia Frykberg, and Mackenzie Kubik for research assistance.