The Critical Racialization of Parents’ Rights
abstract. In the aftermath of the global protests against White supremacy in the summer of 2020, conservative operatives mobilized to resist race-conscious demands for racial justice. Under the banner of a caricatured account of Critical Race Theory (CRT), between January 2021 and December 2022, government officials at all levels across the country, in red states and blue states, introduced over 560 bills, regulations, resolutions, and policies to restrict teaching about and training on contemporary racial injustice or the effects of historical subordination. In this Feature, I argue that we cannot understand the explosive growth of the anti-CRT movement without understanding how parents’ rights over education have historically been and continue to be racialized. Indeed, the anti-CRT movement has built on and been intertwined with the trend toward parents’ rights, which complains that official educational policies usurp fundamental parental rights.
I argue that the “twin” movements against CRT and for parents’ rights legally and culturally enshrine colorblindness and innocence to resist and reverse any claims for or efforts to achieve racial justice. Despite the claims that both movements represent concerns of all parents and children, both center White parents’ rights and the protection of White children. To support these assertions, I present data from a unique database of anti-CRT activity and contemporary parents’ rights mobilization.
This Feature adds to the CRT literature on racial reform and retrenchment, especially regarding schools. It examines a relatively unexplored intersection of Critical Race Theory, parents, and educational policy. I contend that the racially regressive ways in which White parents, historically and presently, use their status as parents reflect not only an impulse to protect their children through asserting control over education, but to protect Whiteness.
author. Assistant Professor, University of California, Los Angeles School of Law. This Feature draws on the work of UCLA Law’s Critical Race Studies program’s initiative CRT Forward. The Feature was not possible without the entire CRT Forward team: Taifha Alexander, Noah Zatz, Cheryl Harris, Ahilan Arulanantham, Jasleen Kohli, Kyle Reinhard, and the librarians and research assistants that created the Tracking Project website. It also draws on a report written for the Tracking Project, which I coauthored with Taifha Alexander, Kyle Reinhard, and Noah Zatz. Taifha Alexander, LaToya Baldwin Clark, Kyle Reinhard & Noah Zatz, Tracking the Attack on Critical Race Theory, UCLA (Apr. 2023), https://crtforward.law.ucla.edu/wp-content/uploads/2023/04/UCLA-Law_CRT-Report_Final.pdf [https://perma.cc/6QTS-8K3C]. For valuable feedback, thank you to Cheryl Harris, Jonathan Masur, Monica Bell, Jonathan Feingold, Farah Peterson, Jerry Kang, Franita Tolson, Shaun Ossei-Owusu, and Guy-Uriel Charles. Thank you to the participants of the faculty colloquium at Cornell Law School for valuable feedback. I am indebted to the editors of the Yale Law Journal for your excellent editing and unending patience. Richard Peng, Whitney Forbis, Katharine Young, and Emma Bell: thank you for outstanding research assistance. William, Ahmir, Amina, and Ahmad: I am because you are. All mistakes are mine.
Introduction
The summer of 2020 marked an epic shift in the national dialogue about race and racism. Following the release of a searing video showing the brutal murder of George Floyd by Minneapolis police officers1 and the disclosure of the murder of Breonna Taylor by police as she slept in her home,2 millions of people flooded into the streets under the banner Black Lives Matter.3 The protests against White supremacy4 and anti-Black state violence were international; one journalist noted: “There is a George Floyd in every country.”5
Major news outlets described the protests as indicative of a “racial reckoning[:] . . . the fight against systemic racism that is reverberating around the country.”6 Institutions declared their solidarity with this antiracist movement. Schools began incorporating antiracist curricula,7 and companies pledged to fight anti-Blackness in their organizations.8 Books like Robin DiAngelo’s White Fragility9 and Ibram X. Kendi’s How to Be an Antiracist10 became book-club favorites.11
The popular groundswell in support of a true racial reckoning rejected the dominant colorblind racial frame and produced considerable anxiety among political conservatives in the context of the pandemic and a hotly contested election cycle. During the presidential campaign, as President Trump’s approval numbers continued to sink and the pandemic continued to take its toll, there was a desperate search for a vehicle from which to mount a counteroffensive. Finally, in the summer of 2020, one began to emerge.
Conservatives like Christopher F. Rufo, who had been working to eliminate antiracism efforts for years, railed against antiracist training sessions as abusive of White men.12 As reported in a series of articles and interviews in the conservative press, he noted that the footnotes of popular antiracism books drew from Critical Race Theorists’ work.13 Rufo then argued that Critical Race Theory (CRT) was at the root of not only the maligned diversity, equality, and inclusion (DEI) initiatives but was also the source of similar “indoctrination” efforts in colleges and universities.14 Rufo deployed CRT as a handy rhetorical sledgehammer for conservative pushback to racially progressive politics.15 Indeed, he acknowledged that his objectives were to “turn [CRT–the brand] toxic, as we put all of the various cultural insanities under that brand category.”16 “The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’ We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.”17
His remarks and arguments reached a receptive audience in the White House. According to several news sources, Rufo was instrumental in getting the President to take action.18 On September 22, 2020, then-President Trump issued an Executive Order (EO)19 denouncing any attempt to provide antiracist instruction or training to federal employees and contractors. The EO claimed to “promote unity in the Federal workforce, and [] combat offensive and anti-American race and sex stereotyping and scapegoating.”20 Under the mandates of the EO, federal contractors were prohibited from “inculcat[ing] . . . in their employees . . . any form of race or sex stereotyping or any form of race or sex scapegoating.”21
The EO did not explicitly name CRT as a tool for implementing race and sex scapegoating. While CRT is an intellectual movement explicated in academic journals and books, the EO had an intentionally warped version of CRT in mind. The EO decried a “malign ideology” that “may be fashionable in the academy, but [that] ha[s] no place in programs and activities supported by Federal taxpayer dollars.”22
While President Biden rescinded the EO upon assuming office in January 2021, the EO had already wreaked havoc. Its tenets spread nationwide to state legislative houses and school-board meetings. In the wake of the EO, anti-CRT resolutions, regulations, and legislation emerged in Congress, state legislatures, and local-government institutions. Backed by political organizations, including those trumpeting parents’ rights, between January 1, 2021, and December 31, 2022, lawmakers at every level of government have introduced or adopted over 560 laws, regulations, policies, and other official actions to restrict CRT training, teaching, and curricula.23 These measures also targeted the New York Times’s Pulitzer Prize-winning 1619 Project24 and “diversity, equity, and inclusion” efforts.25
Over 90% of these measures at the state and local level target K-12 public schools, seeking to regulate teachers and curricula. This targeting is not surprising; schools have long been foundational sites of racial contestations,26 and curriculum wars are not new.27 Predictably, these struggles mobilize parents, and mobilizing White28 parents for racially regressive ends has been a recurring response to racial reform efforts, however modest.29 For example, White mothers actively organized to resist racial desegregation in schools after Brown v. Board of Education,30 and parents’ rights groups have been at the forefront of many other contestations over race.31
The parents’ rights movement seeks to codify aggressive forms of supposedly race-neutral school surveillance, transparency, and unprecedented access to classrooms and lessons.32 Between January 2020 and December 2022, state lawmakers in at least thirty-four states introduced parents’ rights bills alongside anti-CRT efforts.
Anti-CRT and parents’ rights proponents argue that these
parents’ rights bills result from grassroots activism of parents of all races
who are outraged at many forms of what they see as government overreach during
and after the restrictions of COVID.33 But the emergence of this
movement cannot reasonably be characterized as grassroots. Instead, powerful,
well-funded national entities hostile to racial redistribution of
power34 champion parents’ rights.
Other organizations provide talking points and strategies parents can adopt to
fight CRT in their children’s schools. Together with the anti-CRT activities,
the well-organized parents’ rights movement fuels this contemporary form of
racial retrenchment in response to racial reform.35
In this Feature, I situate the “twin” movements of anti-CRT and parents’ rights in Critical Race Theory’s critiques. By using the metaphor of twins, I suggest that the movements work in tandem because they are born from the same parent: White supremacy. To do so, I draw on insights from a qualitative descriptive analysis of anti-CRT laws, regulations, policy, and the contemporary movement for parents’ rights as found in both introduced laws and conservative operations, along with organizational encouragement. While the movements assert the normative superiority of colorblindness in protecting innocent children against indoctrination, I show how the movements are not at all colorblind nor protective of the rights of all parents or children. Instead, together they are color conscious of Whiteness, White parents’ rights, and the psychological needs of White children.
I develop my thesis in three parts. Part I provides a brief primer on CRT concepts for those unfamiliar with this body of work. The caricatured version of CRT pushed by the right is often in direct opposition to what CRT actually argues. This Part offers a background for the trends I describe in Parts II and III and explicitly counters the disinformation campaign that serves as the backdrop to the anti-CRT movement.
In Parts II and III, I describe the national landscape of the anti-CRT and the parents’ rights movements using a publicly available, national, and comprehensive data set unavailable to authors who have previously written on the anti-CRT movement.36 I analyze anti-CRT measures, self-styled parents’ rights legislation, and conservative organizations’ guides instructing parents on resisting CRT and other so-called leftist agendas in their local schools.
In Part IV, I show how the twin movements provide a contemporary example of how race-neutral calls for colorblindness and invocation of White children’s innocence work in service of racially regressive maneuvers. Again, despite protestations to the contrary, both campaigns are color conscious and racially selective in their “protection” of children to include only White parents and White children. Both, in fact, operate in the service of a more significant campaign to retrench White supremacy. The example reveals an underexplored intersection of Critical Race Theory, parenting, and educational policy.
A few notes before continuing. First, while I name the movement that began with the Trump EO “anti-CRT,” the measures invoke CRT in about one-third of introduced measures. Thus, using “anti-CRT” to encapsulate these varied efforts may be imprecise and misleading.37 But close to fifty percent of all adopted measures expressly prohibit CRT,38 such that the impact of these laws places CRT squarely in the middle of the movement.
Second, while I speak of White parents, my goal is not to indict all White parents as nefarious actors. Nevertheless, although the parents’ rights movement claims to act on behalf of parents, its rhetoric suggests its true goal is to work only on behalf of White parents.39 The campaign seeks to retrench the status quo in light of stark racial disparities across many domains—which is to say, racial subordination.40 The retrenchment benefits all people who can claim Whiteness, even if they would instead not consciously claim it.
Lastly, the data I present here is a snapshot of the national landscape of these movements as of the year’s end of 2022. While the analysis is descriptive rather than causal, and it is not statistically sophisticated, it represents the most comprehensive quantitative and qualitative picture of official anti-CRT activity. This analysis is part of a project that continues refining and identifying other ways of collecting, cataloging, and analyzing this information. Thus, this analysis will necessarily be somewhat imprecise. Nevertheless, it is valuable to understand the attack’s depth and breadth and its contours.
See, e.g., Elisha Fieldstadt, “I Can’t Breathe”: Man Dies After Pleading with Officer Attempting to Detain Him in Minneapolis, NBC News (May 26, 2020, 1:50 PM EDT), https://www.nbcnews.com/news/us-news/man-dies-after-pleading-i-can-t-breathe-during-arrest-n1214586 [https://perma.cc/7L5G-PRCY].
See, e.g., Jason Riley, Attorneys Claim LMPD Officers Killed 26-Year-Old EMT in “Botched” Police Raid, WRDB.com (Sept. 29, 2020), https://www.wdrb.com/in-depth/attorneys-claim-lmpd-officers-killed-26-year-old-emt-in-botched-police-raid/article_4bb33de6-704e-11ea-bb3c-4785530c8830.html [https://perma.cc/WP36-M8RL] (describing Breonna Taylor’s shooting by police in Louisville).
See Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/3EGH-84KJ] (“Four recent polls—including one released this week by Civis Analytics, a data science firm that works with businesses and Democratic campaigns—suggest that about 15 million to 26 million people in the United States have participated in demonstrations over the death of George Floyd and others in recent weeks.”); Kim Parker, Juliana M. Horowitz & Monica Anderson, Amid Protests, Majorities Across Racial and Ethnic Groups Express Support for the Black Lives Matter Movement, Pew Rsch. Ctr. (June 12, 2020), https://www.pewresearch.org/social-trends/2020/06/12/amid-protests-majorities-across-racial-and-ethnic-groups-express-support-for-the-black-lives-matter-movement [https://perma.cc/KA7K-H445].
“White supremacy” refers to the systematic and multifaceted dominance of White over non-White members of society rather than merely to explicit hate or bigotry against non-White people. See, e.g., Frances Lee Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights, 74 Cornell L. Rev. 993, 1024 n.129 (1989) (explaining that White supremacy is “a political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings”).
Ashley Westerman, Ryan Benk & David Greene, In 2020, Protests Spread Across the Globe with a Similar Message: Black Lives Matter, NPR (Dec. 30, 2020, 5:04 AM ET) https://www.npr.org/2020/12/30/950053607/in-2020-protests-spread-across-the-globe-with-a-similar-message-black-lives-matt [https://perma.cc/5ZS7-2FWT] (quoting the journalist Lynsey Chutel).
America’s Racial Reckoning, NBC News, https://www.nbcnews.com/americas-racial-reckoning [https://perma.cc/4YFQ-X5ZM]. Others have pressed to abandon the term. See, e.g., Michele L. Norris, Don’t Call It a Racial Reckoning. The Race Toward Equality Has Barely Begun., Wash. Post (Dec. 18, 2020, 1:41 PM EST), https://www.washingtonpost.com/opinions/dont-call-it-a-racial-reckoning-the-race-toward-equality-has-barely-begun/2020/12/18/90b65eba-414e-11eb-8bc0-ae155bee4aff_story.html [https://perma.cc/3B5E-D3YB].
See, e.g., How the Murder of George Floyd Changed K-12 Schooling: A Collection, Educ. Wk., https://www.edweek.org/leadership/how-the-murder-of-george-floyd-changed-k-12-schooling-a-collection [https://perma.cc/2WJE-S5FD] (detailing “school leaders’ fitful efforts to respond to Black Lives Matter protestors’ demands” for curriculum reform); Ernest Scheyder, U.S. Schools Revamp Curricula in Response to Black Lives Matter, Reuters (Aug. 21, 2020, 7:04 AM), https://www.reuters.com/article/us-global-race-usa-textbooks/u-s-schools-revamp-curricula-in-response-to-black-lives-matter-idUSKBN25H1DF [https://perma.cc/YV63-5427].
See, e.g., Tracy Jan, Jena McGregor & Meghan Hoyer, Corporate America’s $50 Billion Promise, Wash. Post (Aug. 24, 2021, 7:03 PM), https://www.washingtonpost.com/business/interactive/2021/george-floyd-corporate-america-racial-justice [https://perma.cc/HN3J-T3XR] (analyzing corporate racial-justice pledges made after George Floyd’s murder).
See Fabiola Cineas, The Lofty Goals and Short Life of the Antiracist Book Club, Vox (Nov. 11, 2021, 5:30 AM EST), https://www.vox.com/22734080/antiracist-book-club-robin-diangelo-ibram-kendi [https://perma.cc/96BW-9SQ4] (describing the proliferation and common reading materials of antiracist book clubs in the months after George Floyd’s murder).
See Benjamin Wallace-Wells, How a Conservative Activist Invented the Conflict over Critical Race Theory, New Yorker (June 18, 2021), https://www.newyorker.com/news/annals-of-inquiry/how-a-conservative-activist-invented-the-conflict-over-critical-race-theory [https://perma.cc/2UYM-PZUR].
Christopher F. Rufo (@realchrisrufo), Twitter (Mar. 15, 2021, 3:14 PM), https://twitter.com/realchrisrufo/status/1371540368714428416 [https://perma.cc/2H5Q-WSGU] (“We have successfully frozen their brand—‘critical race theory’—into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category.”).
Id. at 60683-84; see also Remarks by President Trump at the White House Conference on American History, Nat’l Archives Museum (Sept. 17, 2020, 2:54 PM EDT), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-white-house-conference-american-history [https://perma.cc/2R5G-E5CM] (“Critical race theory is being forced into our children’s schools, it’s being imposed into workplace trainings, and it’s being deployed to rip apart friends, neighbors, and families.”).
See discussion infra Section II.B. Note that this story of policy whiplash is but a chapter in history. The timeline could be longer: how did we go from the triumph of Brown v. Board of Education, which was explicitly color conscious in its remedy for racial discrimination, to the arguments made by Students for Fair Admissions in its recent suits against Harvard and the University of North Carolina? How did we go from considering race in creating diverse classrooms for children to arguing categorically that “racial classifications are wrong,” perhaps even abandoning strict scrutiny for race all together, as the lawyer for Students for Fair Admissions argued? Transcript of Oral Argument at 4, Students for Fair Admissions, Inc. v. Univ. of N.C., No. 21-707 (U.S. argued Oct. 31, 2022).
See, e.g., Brown v. Bd. of Educ., 374 U.S. 483, 495 (1954) (holding that state-sponsored racial segregation in schools was unconstitutional); Milliken v. Bradley, 418 U.S. 717, 752 (1974) (holding that school districts were not responsible for teaching children who live outside of their boundaries unless that district illegally segregated students by race); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 734-35 (2007) (holding that a racial tiebreaker in the school district’s desegregation plan was unconstitutional under the Fourteenth Amendment’s Equal Protection Clause).
See generally Kenneth Teitelbaum, Curriculum, Conflict, and Critical Race Theory, Kappan (Jan. 18, 2022), https://kappanonline.org/curriculum-conflict-critical-race-theory-teitelbaum [https://perma.cc/M2LS-CJ8L] (“Curriculum conflicts arise constantly, they touch on all sorts of content, and they draw in a varied list of participants from across the ideological spectrum, including professional educators, parents, elected officials, and a growing number of political, religious, and economic interest groups.”).
I capitalize “White” throughout this Feature. The proper noun usage of the word forces an understanding of “White” as a social and political construct and social identity in line with the social and political construct and social identity of “Black.” See LaToya Baldwin Clark, Stealing Education, 68 UCLA L. Rev. 566, 568 n.1 (2021); see also Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1745 (1993) (discussing Whiteness as “a form of racialized privilege” in accessing social, economic, and political advantages).
See, e.g., Parents Defending Educ., https://defendinged.org [https://perma.cc/MLK5-BVZR] (describing itself as a “national grassroots organization working to reclaim our schools from activists promoting harmful agendas”); Jeremiah Poff, Grassroots Parent Activism Grows Nationwide, Wash. Exam’r (June 11, 2022, 7:00 AM), https://www.washingtonexaminer.com/restoring-america/community-family/grassroots-parent-activism-grows-nationwide [https://perma.cc/63HA-SB2E] (“The vast majority of local parent groups have established themselves with little to no outside help, often via Facebook groups formed out of anger that local school districts did not have plans to offer in-person classes to students in the fall of 2020.”); Mike Gonzalez, How the Grassroots Are Resisting CRT, Heritage Found. (July 27, 2021), https://www.heritage.org/education/commentary/how-the-grassroots-are-resisting-crt [https://perma.cc/Y6PE-J79Q] (“As someone who has spoken to hundreds of parents across the country (and plan to do so again and again throughout the summer) and who has also spoken to state legislators across the nation, including testifying before the Louisiana Legislature along with my Heritage colleague Jonathan Butcher, I can tell you that the energy is coming from the grassroots, and it is very real.”).
Previous legal scholarship includes Zoe Masters, After Denial: Imagining with Education Justice Movements, 25 U. Pa. J.L. & Soc. Change 219, 219-21 (2022), which argues that denial is an ideology integral to the creation and maintenance of White supremacist racial hierarchies, and it is enforced in the educational context through anti-CRT laws that ban key ideas that illuminate how racism functions; Vivian E. Hamilton, Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through the Lens of Critical Race Theory, 28 Wm. & Mary J. Race, Gender & Soc. Just. 61, 74-77 (2021), which argues that CRT illuminates current legislation curtailing race-related education in schools and government workplaces as a direct backlash to mass racial-justice protests of 2020 when contextualized within the history and ideology of resistance to U.S. racial-justice movements; Joshua Gutzmann, Fighting Orthodoxy: Challenging Critical Race Theory Bans and Supporting Critical Thinking in Schools, 106 Minn. L. Rev. Headnotes 333, 344-53 (2022), which surveys state legislation banning CRT in public schools to argue that anticipated broad judicial interpretation will have a chilling effect on teaching of race-related curricula, though the statutes can be challenged on First and Fourteenth Amendment grounds when there is proof of harm to students; Theresa Montaño & Tricia Gallagher-Geurtsen, Yes, Critical Race Theory Should Be Taught in Your School: Undoing Racism in K-12 Schooling and Classrooms Through CRT, 69 UCLA L. Rev. Discourse 84, 84 (2022), which asserts that CRT is a crucial theoretical framework already used in K-12 classrooms to teach ethnic studies, a course which helps educators “disrupt inequities” by “nam[ing] oppression, embrac[ing] racialized intersectional identities through community cultural wealth, develop[ing] counter-stories, and engag[ing] students in social activism to defy majoritarian supremacy”; Jonathan Feingold, Reclaiming Equality: How Regressive Laws Can Advance Progressive Ends, 73 S.C. L. Rev. 723, 723, 754-57 (2022), which argues that CRT advocates should “wield Backlash Bills to defend CRT in schools” since anti-CRT laws textually support this move; and Osamudia James, White Injury and Innocence: On the Legal Future of Antiracism Education, 108 Va. L. Rev. 1689 (2022), which explores antiracism education’s vulnerability to legal challenges under current antidiscrimination norms and doctrine.
Jonathan Feingold argues that we should resist characterizing broader efforts to restrict educators’ engagements with race in the classroom as “anti-CRT.” Feingold, supra note 36, at 725 n.8 (explaining that calling bills that regulate how educators discuss race and racism “anti-CRT” “suggest[s] that the bills entail substantive, good faith critiques of CRT. This is inaccurate. Far from good faith engagements with CRT, the bills further an intentional disinformation campaign”). As I discuss above, while I agree with this sentiment, describing this as an anti-CRT movement has some basis in the breadth and depth of the movement as it often targets CRT by name.