Maxine Eichner (University of North Carolina School of Law) has recently posted to SSRN her paper, Pierce, Don't Say Gay Laws, and the Rise of Illiberal Authoritarianism. Here is the abstract:
In the last two years, legislators and policymakers in red states have passed a wave of measures directed at reforming public schools’ policies and curricula. Some of these measures deal with issues of sexual orientation and gender identity. Others restrict educators’ ability to teach issues of race. Still other initiatives seek to insert Christianity into the schools. While a number of these reforms have been passed under the label of “parental-rights laws,” these measures actually do little to foster the autonomy of par-ents to direct their children’s upbringing. Instead, they are muscular at-tempts by state governments, themselves, to impose their own imprint of proper development on school children; to indoctrinate students with partic-ular norms and beliefs that legislators favor; and to limit the kind of civic education that students can receive.
In this essay, I argue that while legislators and policymakers who sup-port these initiatives often present them as fitting comfortably within the liberal-democratic framework for addressing children’s education that was put in place in Pierce v. Society of Sisters, these laws should instead be recog-nized as active challenges to liberal democracy. To be specific, I contend, these laws are better conceptualized as part of the trend of illiberal author-itarianism arising in the United States and in other western countries. I also grapple with the complicated relationship between these illiberal initiatives and Pierce v. Society of Sisters and its companion cases of the era. In brief, I assert that Pierce and its ilk sought to outlaw illiberal measures such as these, but failed to incorporate the safeguards to ensure that future generations develop the necessary traits and dispositions to sustain liberal democracy. Accordingly, Pierce contained the seeds for the eventual challenge to liberal democracy that we see today.
Part I describes the liberal-democratic framework for children’s education that has long dominated in the United States, and which the Supreme Court institutionalized in Pierce and its companion cases. Part II uses the example of Florida’s new laws regarding LGBTQ education—so-called “Don’t Say Gay Laws”—to show how these new enactments violate our existing liberal-democratic framework, rather than, as they are often presented, take positions within that framework. This Part also makes the case that these laws should be considered within the rising contemporary movements toward authoritarianism that are developing both within the United States and internationally. Finally, Part III circles back to consider the ex-tent to which weaknesses in Pierce and its companion cases helped sow the seeds for the rise of today’s assault on liberal democracy.