Won't Somebody Please Think About the Children: "Don't Say Gay" and the Use of Moral Panic to Suppress Dignity.

• Date: 22 March 2023
• Author: Andrews, Nathan G.

"It's basically saying for our youngest students ... do you really want them being taught about sex? And this is any sexual stuff. But I think clearly right now, we see a lot of focus on the transgenderism, telling kids that they may be able to pick genders and all that." (1)

I. INTRODUCTION

Ingrained in American jurisprudence is the concept that parents have a fundamental right to raise their children. (2) The fundamental right to parent may be one of the few beliefs Americans agree on. (3) Nevertheless, this right is not absolute. (4) Pursuant to both their police powers and the doctrine of parens patriae, states wield the authority to regulate and enact legislation that promotes the well- being of their citizenry. (5) Included in this authority is the state's responsibility to provide public education to its youths, and more specifically, its duty to prescribe a curriculum. (6) In the past, however, when parents or teachers have challenged the constitutionality of restrictive school curriculum policies, the Supreme Court has intervened and disrupted the state's role as the ultimate arbiter of appropriate learning material. (7) Recently, classroom teaching of gender identity and sexual orientation has reignited the debate surrounding the acceptable bounds of public school instruction. (8) While general support for the LGBTQ+ community is high, it plummets when educators suggest incorporating LGBTQ+ identity into their lesson plans. (9) This hesitancy--and in some cases antipathy--towards LGBTQ+ inclusive education provides the basis for states, such as Florida, to introduce so-called "Don't Say Gay" bills to both silence and punish the teaching of LGBTQ+ identities in the classroom. (10)

Florida's "Don't Say Gay" Bill, officially titled the Parental Rights in Education Act, was one of the leading examples of proposed legislation aimed at banning classroom discussion of gender identity and sexual orientation. (11) In February 2022, Governor DeSantis signed the Bill into law. (12) While the original Bill prohibited school personnel from teaching gender identity and sexual orientation to kindergarten through third grade students, Florida has since expanded the law to include students through eighth grade. (13) In addition, the law gives parents a cause of action for damages against the school district for any violation. (14) Although Florida's law never explicitly uses the word "gay," members of the LGBTQ+ community fear it functions to discriminate against them disproportionately. (15) The law intentionally uses vague standards to provide wide latitude to suppress classroom instruction. (16) This lack of specificity allows Florida to deny discussion of LGBTQ+ identity whenever it finds such discussion age or developmentally inappropriate. (17)

In fact, Florida's law is neither unprecedented nor unique in its conception and is intended to stymie the progress made by the LGBTQ+ community. (18) In recent years, the LGBTQ+ community has made great strides towards achieving equality, as evidenced by the Court's decision in Obergefell v. Hodges (19), where the Court granted same-sex couples the right to marry. (20) Historically, when minority groups experience social progress, they subsequently become targets of legislative efforts to restore the status quo. (21) In fact, Florida officials candidly admitted they enacted the "Don't Say Gay" law to protect children from unwanted LGBTQ+ influences. (22) Since the law's enactment, Florida school officials--and school children's parents--have been given carte blanche to impose the law's restrictions. (23) Courts recognize a school's authority to set its own curriculum as long as it is reasonably related to legitimate pedagogic concerns. (24) While legitimate pedagogic concerns include the refusal to condone activities like drug use, irresponsible sex, or conduct inconsistent with a civilized society, the Court views legislation motivated by animus with distaste. (25) Thus, because Florida has implemented its "Don't Say Gay" law because of--rather than in spite of--its aversion to the LGBTQ+ community, its discriminatory purpose invalidates any pedagogic concerns Florida may claim. (26)

This Note first examines the history of a parent's authority to control their child's upbringing against the state's interest in educating children. (27) Then, this Note evaluates other state education policies and their intended educational purposes. (28) Next, this Note traces the social and legal history of American animus towards the LGBTQ+ community. (29) This Note then analyzes "Don't Say Gay's" chilling effect on Florida's education system and critiques its primary function of denying the existence and dignity of queer and transgender people. (30) Next, this Note argues that "Don't Say Gay" is unconstitutional because it is vague, primarily motivated by animus, and lacks a legitimate pedological purpose. (31) Finally, this Note explores the legal hurdles advocates face when challenging anti-LGBTQ+ legislation and cautions against "Don't Say Gay's" broader implications. (32)

II. HISTORY

A. Parental Rights vs. State Interests

1. Origins of Parental Liberty

The United States Constitution does not expressly recognize a parent's right to direct their child's upbringing. (33) Rather, this liberty is rooted in the Fourteenth Amendment's Due Process Clause. (34) For decades, the Court has recognized that the Fourteenth Amendment protects individuals from more than the physical deprivation of their liberty. (35) In a long line of cases, the Court has held that the Due Process Clause insulates certain substantive liberties from the state's reach. (36) To be eligible for protection under the Court's substantive due process jurisprudence, the value at issue must be so precious to society that it is implicit in America's conception of ordered liberty. (37) It is within this judicial framework that the parental right to make decisions about their child's upbringing finds its home. (38)

Parental power to control their children's upbringing is especially prominent in educational matters. (39) In Meyer, the Court observed that the long-held tradition of a parent's right to direct their child's upbringing naturally corresponds with their duty to provide their children with a useful education. (40) Two years later, in Pierce, the Court reaffirmed this principle striking down an Oregon statute that mandated children ages eight to sixteen attend public schools. (41) The Court rejected the argument that states can force children to attend public schools and affirmed a parent's right to send their child to the institution of their choice: public or private, denominational or nondenominational. (42) In 1972, the Supreme Court returned again to compulsory school attendance laws--this time a Wisconsin statute--and once more sided with parental control over the state's interest in enacting educational regulations for its youths. (43) As a central aspect of its reasoning, the Court highlighted Western culture's strong tradition of respecting a parent's authority in matters concerning the upbringing of their children. (44) Since then, the law has continued to affirm that parental rights include most decisions concerning the care, custody, and control of their children. (45)

2. State's Counter Interests

Despite the Court's deference to parental authority over the care, custody, and control of their children, parental rights are not unlimited. (46) Two limiting principles constrain parental authority: Tenth Amendment police powers and the doctrine of parens patriae. (47) As to the first principle, the Tenth Amendment reserves powers not delegated or prohibited by the Constitution to the states. (48) Through these reserved powers--referred to in legal jargon as police powers--a state can enact laws that promote the general health and safety of the public. (49) State police powers are broad and license states to implement laws that relate to matters that occur entirely within their territory. (50)

The second principle, the doctrine of parens patriae, refers more specifically to the state's interest in safeguarding the well-being of its citizenry. (51) While the state has an interest in the general well-being of every citizen, a state's authority over children's activities is broader than that of adults. (52) An illustrative example of this principle occurred in Prince, where the Court reviewed a child labor dispute between a child's legal guardian and state authorities. (53) While the state cannot normally infringe on a parent's fundamental right to raise their children, the Court held that the state's interest in protecting the health and safety of its children--in this instance, through preventing child labor--was compelling enough to override the legal guardian's claims. (54) The Court used flowery language to describe the weighty responsibility the state has to monitor children's activities deeming education as essential to the success of American democracy. (55) For democracy to endure, the state must implement regulations that encourage youths to develop into well-rounded, productive citizens. (56)

3. State Interest in Education

While a state may not infringe on parental liberty absent a compelling reason, it does have a substantial interest in promoting quality education for its children. (57) In fact, the Court describes education as one of the most important functions of state and local governments. (58) The Court has referred to the state's interest in educational matters as vital, foundational, and highly discretionary. (59) At its core, education is a tool that states must utilize to ensure they properly train students to engage intelligently in a wide variety of ideas. (60) Through education, children are sensitized to cultural values and prepared to become productive members of society. (61) Although legal precedent has effectively ended a state's ability to mandate where parents send their children...