The January 6 insurrection and the last two presidential elections have revealed some very troubling trends in the present state of our democracy: the lack of knowledge and respect for basic constitutional values; the extreme polarization of the electorate; the dismissal of people with opposing views; and the widespread circulation and acceptance of factually incorrect information. According to the 2021 Annenberg Constitution Day Civics Survey, almost half of Americans cannot name the three branches of government, and barely half know that the Supreme Court has the final word on disputes on presidential powers. Indeed, even a United States senator, Tommy Tuberville of Alabama, recently was unable to identify correctly the three branches of government.
These developments raise the question of whether our nation’s schools have been fulfilling their critical civic mission to prepare young people to be good citizens, capable of safeguarding our democracy and upholding constitutional values. As former U.S. Supreme Court Justice Sandra Day O’Connor put it, “We are failing to impart to today’s students the information and skills they need to be responsible citizens.”
Throughout American history, the primary mission of public schools has been to prepare students to be effective citizens, capable of sustaining a vibrant democracy. The nation’s founders believed that the profound experiment in republican government that they were initiating depended on citizens’ ability to participate in public life and exhibit “civic virtues” like mutual respect and prudent judgment. Horace Mann, the founder of the nineteenth century “common school” movement, stressed the primacy of preparation for citizenship: “[T]he qualification of voters is as important as the qualification of governors. . . . The theory of our government is not that all men, however unfit shall be voters—but that every man, by the power of reason and the sense of duty, shall become fit to be a voter.”
However, even as the right to vote has now been broadly expanded to include women, citizens from all races and ethnic groups in our increasingly diverse population, and young people at age 18, over the past half century, the schools’ civic focus has eroded, so much so that at the present time the viability of our democratic institutions is very much at risk. The reasons for the dramatic decline in schools’ carrying out their traditional civic preparation role are manifold: the declining faith in governmental institutions; educators’ emphasis on basic skills in reading and math to the detriment of social studies and civics; the challenge of articulating and developing civic values among our increasingly diverse and polarized population; and the difficulty of teaching students how to distinguish accurate from inaccurate information on the internet and social media, the now dominant sources of information.
Consistent with this neglect of civic education, Americans’ knowledge of basic political facts is strikingly low. For example, on the civics exam administered by the National Assessment of Educational Progress (NAEP), (known as the “nation’s report card”) administered in 2018, only 24 percent of a national sample of eighth graders performed at or above a “proficient” level. Scores of African American and Latinx students were even lower.
Even more frightening is the fact that many young people today are apathetic regarding basic democratic values. A recent study found that when asked to rate on a scale of 1 to 10 how “essential” it is for them “to live in a democracy,” 72 percent of those born before World War II chose 10, the highest value, but among those born after 1980, only about 30 percent accorded maximal importance to living in a democracy. This study also found that in 2011, 24 percent of those born in the United States after 1980 (then in their late teens or early twenties) considered democracy to be a “bad” or “very bad” way of running the country. Roberto Stefan Foa & Yascha Mounk, The Democratic Disconnect, 27 J. Democracy 5, 7–8 (2016).
After analyzing this situation in depth, I concluded that given the extensive polarization of our political institutions, the only way to reinvigorate civic education in the United States on a broad scale would be through the federal courts. A clear declaration that the Fourteenth Amendment entitles students to an education that prepares them for capable citizenship would galvanize thinking and action by the states and Congress. The courts are uniquely positioned to catalyze a movement to prioritize civic education. Although judicial appointments have become more politicized in recent years, the courts nevertheless remain the least polarized and most respected branch of the American government. Their basic institutional functioning requires reliance on evidence, reasoned discussion, analysis of controversial issues, and respect for those who hold differing views—many of the core skills that students need to develop.
Furthermore, the U.S. Supreme Court has in the past issued many rulings that have emphasized the importance of civic education for the maintenance and viability of our democratic system. For example, the Court has emphasized the importance of exposing students to a marketplace of ideas, controversies, and opposing viewpoints. (See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 868 (1982) (“[J]ust as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”)) This extends to the importance of basic knowledge of, and experience in, how our governmental institutions function. Id. at 876 (Blackmun, J., concurring) (“the Constitution presupposes the existence of an informed citizenry prepared to participate in governmental affairs”).
The Court has also underscored the need for schools to inculcate basic civic values, specifically the values of tolerance and civility toward those with differing views. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (schools must inculcate the “fundamental values necessary to the maintenance of a democratic political system . . . [which] must, of course, include tolerance of divergent political and religious views”).
Accordingly, representing a diverse group of student plaintiffs from throughout the state of Rhode Island, in 2018, my co-counsel and I filed a class-action suit in the U.S. District Court for Rhode Island that asked the court to act on these increasingly relevant Supreme Court precedents and declare that there is, indeed, a right under the Fourteenth Amendment to an education that prepares students to function productively as civic participants. Cook (A.C.) v. Raimondo.
There is a viable legal basis for this claim. In 1973, the U.S. Supreme Court held, by a 5–4 vote, that a pattern of substantial disparities in the amount of education funding available to local school districts in Texas was not unconstitutional. San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). The Court held that education is not a “fundamental interest” under the federal Constitution, Id. at 29, and, therefore, plaintiffs were not entitled to strict scrutiny of their claim. Despite the acknowledged importance of education, the majority ruled that education was not a fundamental interest because “the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.” Id. at 30. Applying the rational relationship standard, the Court upheld the Texas education finance system, despite its acknowledged inequities, after determining that local control of education was a rational state interest.
In a strong dissent, Justice Thurgood Marshall took issue with this position. He argued that although education is nowhere directly mentioned in the Constitution, some basic education must be deemed a fundamental interest because of “the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values.” Id. at 111 (Marshall, J, dissenting). Specifically, Justice Marshall stressed the importance of education for exercising First Amendment rights, “both as a source and as a receiver of information and ideas,” and for exercising the constitutional right to vote and to participate in the political process. Id. at 113–14.
Justice Lewis Powell, writing for the majority, accepted the dissenters’ basic perspective. After summarizing the arguments on this point, he stated:
We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. . . .
However, he also held that the Court did not have to consider this issue in the case at bar because:
Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. . . . [In the present case] no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
Id. at 36–37.
In short, then, in Rodriguez, all of the justices indicated that some basic quantum of education may be necessary for students to obtain the essential knowledge and skills they need for “full participation in the political process.” Because plaintiffs in that case had not presented sufficient specific evidence on what that quantum of education should be and on whether the schools attended by the plaintiff children were providing such an education, the majority determined that it did not need to decide at that time what “identifiable quantum of education” students might need to exercise their First and Fifteenth Amendment rights.
In October 2020, Judge William Smith issued an extensive decision in response to the defendants’ motion to dismiss our case, A.C. v. Raimondo, 494 F.Supp.3d 170 (D. R.I., 2020). He granted the defendants’ motion, but did so in a manner that eloquently set forth the critical importance of the issues the plaintiffs raised:
This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our and their peril. Unfortunately, this Court cannot, for the reasons explained below, deliver or dictate the solution—but, in denying that relief, I hope I can at least call out the need for it.
Id. at 181.
Judge Smith also stated:
This case does not represent a wild-eyed effort to expand the reach of substantive due process, but rather a cry for help from a generation of young people who are destined to inherit a country which we—the generation currently in charge—are not stewarding well. What these young people seem to recognize is that American democracy is in peril. Its survival, and their ability to reap the benefit of living in a country with robust freedoms and rights, a strong economy, and a moral center protected by the rule of law is something that citizens must cherish, protect, and constantly work for. We would do well to pay attention to their plea.
Id. at 175.
The District Court rejected the plaintiffs’ equal protection claim, although it agreed that the U.S. Supreme Court had “left the door open just a crack” for reconsideration of its decision in Rodriguez that education is not a right in the U.S. Constitution. Judge Smith narrowly interpreted that “crack” to allow the courts to consider only a case that alleges that students are receiving no education whatsoever or an education that is “totally inadequate.” He also rejected plaintiffs’ “substantive due process” claim that a right to education for citizenship is “deeply rooted in the nation’s history and traditions” because “[p]recedent clearly dictates that, while education as a civic ideal is no doubt deeply rooted in our country’s history, there is no right to civics education in the Constitution.” Id. at 193.
The plaintiffs have appealed Judge Smith’s decision to the U.S. Court of Appeals for the First Circuit. The core issue for the First Circuit to consider on this appeal is how wide is the opening that the Supreme Court left in Rodriguez for defining the “quantum of education” that students need to exercise “meaningfully” important constitutional rights. The plaintiffs have argued that the Court’s past emphases on the importance of civic education, especially when seen in the light of the current challenges to the continued viability of our democratic system, indicate that students need more than an education that is “totally inadequate;” indeed, they need a robust civic education. The plaintiffs have also advanced claims based on the privileges and immunities clause of the Fourteenth Amendment and Art. IV, §4 of the Constitution, the “Republican Guarantee Clause.”
All of the briefs filed in the case, including 10 amicus briefs filed in support of the plaintiffs’ position, can be found here. Oral argument in the case took place on November 1, 2021, and the First Circuit’s decision is expected sometime in spring 2022.
