Is the Time Right to Make Education a Constitutional Right?

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A much-anticipated lawsuit argues that, despite nowhere mentioning the word education, the U.S. Constitution does guarantee the provision of an education for the intuitive reason that it is impossible to vote, exercise free speech, or serve on a jury without one.

Filed last month in federal court in Rhode Island on behalf of more than a half-dozen students, the lawsuit faces very long odds on its way to lawbook fame, particularly given the current composition of the U.S. Supreme Court.

But from another vantage point, the timing is spot on, reflecting a resurgence of interest in civics education, as well as general concern over the strength and resilience of America's civic institutions.

"On the one hand, for the legal question, this moment in time may not be the best for the plaintiffs, but the social context might be a really good time to raise this question in the public court, given just how bad people's knowledge of civic institutions are and just how much they are under threat," said Mark Paige, an associate professor in the public-policy department at the University of Massachusetts Dartmouth with expertise in education law.

In the K-12 world, Massachusetts recently became the first state to require secondary students to engage in civics projects as part of the curriculum. And Washington state, Illinois, and New York state have also recently passed laws or convened panels to reassess how they prepare students for citizenship.

Here's a look at the key questions in A.C. v. Raimondo—and what comes next for the plaintiffs.

What's this lawsuit about again? And what are its odds?

The lawsuit is shaped as a class action against Rhode Island. Lawyers for the plaintiffs allege that, among other things, the state doesn't require students to complete any civics or history classes or exams, doesn't provide enough extracurricular civic opportunities for students, and does not provide English-learners with strong instruction, all of which hinder their civic development.

There's one major obstacle to establishing the principle that the Constitution guarantees some level of education: the Supreme Court's decision in a 1973 case, San Antonio Independent School District v. Rodriguez. In that case, the court ruled that the Constitution's equal-protection clauses didn't extend to school district finance inequities.

But the case also left open the question of whether the document might guarantee some minimum level of education, and the architects of the current lawsuit hope to force an answer to that question. Importantly, the case isn't directly about school finance, although any remedy, like revamping civics education across the nation, would inevitably incur costs.

In addition, federal district courts are often reluctant to read new rights into the Constitution.

And when the legal theories underpinning the case were being developed, the political landscape looked a lot different. President Donald Trump's appointment of Brett Kavanaugh to the Supreme Court gave conservatives a majority and makes a victory there unlikely.

Nevertheless, pointed out Derek W. Black, a law professor at the University of South Carolina, the lawsuit echoes widespread concern about the state of civic knowledge, and so the outcome remains a bit of a wild card. Trump's election "has made an enormous swath of the judiciary concerned about the rule of law, the operation of our democracy, and citizens' ability to make informed decisions far more important than it was," he noted.

After years of state education adequacy lawsuits, why are we seeing federal action again?

Testing the Waters

Over the past two years, legal experts have devised creative new arguments for why courts should recognize a right to education in the U.S. Constitution.

Martinez v. Malloy

Filed: Aug. 23, 2016, in the U.S. District Court for the District of Connecticut

Argument: The Constitution guarantees substantial equality of education opportunity; Connecticut’s policies limiting charter schools, magnet schools, and interdistrict transfers violate students’ due process and equal-protection rights.

Status: Judge Alvin W. Thompson dismissed all but one claim in the lawsuit, charging the state with failing to fulfill its duty of public administration. That claim is pending.

Gary B. v. Snyder

Filed: Sept. 23, 2016, in the U.S. District Court for the Eastern District of Michigan

Argument: The Constitution contains an implied right of access to literacy instruction; state policymakers provided Detroit students with such a substandard literacy education that it fell afoul of the students’ due process and equal-protection rights.

Status: Judge Stephen J. Murphy III dismissed the lawsuit. The plaintiffs have appealed to the U.S. Court of Appeals for the 6th Circuit.

A.C. v. Raimondo

Filed: Nov. 29, 2018, in the U.S. District Court for the District of Rhode Island

Argument: The Constitution contains an implied right to an education that prepares young people to be capable citizens, including voting and serving on a jury. Rhode Island’s failure to provide this education violates multiple constitutional rights and a section of the Constitution guaranteeing a “republican form of government.”

Status: Pending

Several other lawsuits are testing out related legal theories, though those cases, like the one filed in Michigan focusing on student literacy, are more narrowly tailored.

Legal experts point to a slowdown in state-level education equity cases following bruising battles in Washington state and Kansas, among other places, as one reason behind the interest in a federal education case.

It's unclear whether the spate of federal litigation could affect potential state-level action, the legal experts said. Some feel that it won't, while others suggest that state courts might not want to make any sudden moves on school finance or equity until the federal question is resolved.

Why do the plaintiffs cite an obscure provision of the Constitution—Article 4, Section 4?

Nearly all previous education equity lawsuits at the federal level have been brought on the grounds of equal protection or due process under the 14th Amendment. This lawsuit includes those claims, too, but also cites this portion of the founding document, which contains a guarantee that every state will establish "a republican form of government."

The clause has been more or less ignored for 200 years, but was the basis of a Stanford Law Review article Black published earlier this year.

In it, he notes that under that clause, and subsequently under the 14th Amendment, the U.S. government forced Southern states to include public education in their own state constitutions as a condition of rejoining the Union after the Civil War.

The plaintiffs' decision to include the unusual historical argument gives the courts additional options to consider—particularly for those judges worried about extending the definition of equal-protection rights, already a well-developed part of constitutional law.

"They may have some concerns about a precedent here, what it will mean for equal-protection cases," Black said. "But the republican guarantee, if they hold it, applies only to education. It's not going to apply to anything else."

What happens if the plaintiffs succeed?

The plaintiffs seek legal clarity, rather than any specific remedy for the students, which means that if the courts uphold the principle in question, they would then require policymakers to develop a program for schools that would supply adequate preparation for citizenship.

Michael Rebell
Michael Rebell

"There may well be 50 different approaches, or more than that, taken among the different school districts," said Michael Rebell, the lead counsel on the case and an education law professor at Teachers College, Columbia University. "We're not going to ask the U.S. Supreme Court to come up with a laundry list of what should be in a civics course or what extracurricular opportunity should be afforded to students. A lot of that depends on context, and it's not the kind of nuts-and-bolts work the Supreme Court would want to be involved in."

The plaintiffs' brief contains some clues about what they feel should happen: teacher training; a curriculum that includes media literacy, civic experiences both inside and outside of the classroom; and supports for students learning English.

Could this lawsuit be settled?

Related Blog

Possibly. A spokeswoman for the Rhode Island attorney general said she could not comment on pending litigation.

What happens if the lawsuit is dismissed?

It would throw cold water on the legal arguments advanced in the litigation, making them harder to use for other test cases. That does worry other education law experts.

"The risk, of course, is that a federal court could say no, and then we have another Rodriguez problem," Paige said. "I worry slightly that it would foreclose a theory that might be viable in a different context."

Vol. 38, Issue 16, Pages 1, 10-11

Published in Print: December 12, 2018, as New Legal Strategy: Civics Education Is a Constitutional Right
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