Law & Courts

Is the Time Right to Make Education a Constitutional Right?

By Stephen Sawchuk — December 11, 2018 6 min read
  • Save to favorites
  • Print

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

Source: Education Week

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

“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?

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.”

Related Tags:

Reporting on civics education is supported in part by an Education Writers Association Fellowship grant.
A version of this article appeared in the December 12, 2018 edition of Education Week as New Legal Strategy: Civics Education Is a Constitutional Right

Events

Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
Ed-Tech Policy Webinar Artificial Intelligence in Practice: Building a Roadmap for AI Use in Schools
AI in education: game-changer or classroom chaos? Join our webinar & learn how to navigate this evolving tech responsibly.
Education Webinar Developing and Executing Impactful Research Campaigns to Fuel Your Ed Marketing Strategy 
Develop impactful research campaigns to fuel your marketing. Join the EdWeek Research Center for a webinar with actionable take-aways for companies who sell to K-12 districts.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts When Blocking Social Media Critics, School Officials Have Protections, Supreme Court Says
The court said public officials' own pages may be "state action," but only when they are exercising government authority.
6 min read
An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020.
An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020.
Patrick Semansky/AP
Law & Courts Oklahoma Nonbinary Student's Death Shines a Light on Families' Legal Recourse for Bullying
Students facing bullying and harassment from their peers face legal roadblocks in suing districts, but settlements appear to be on the rise
11 min read
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school bathroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school restroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
Nate Billings/The Oklahoman via AP
Law & Courts Supreme Court Declines Case on Selective High School Aiming to Boost Racial Diversity
Some advocates saw the K-12 case as the logical next step after last year's decision against affirmative action in college admissions
7 min read
Rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., Aug. 10, 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. A federal appeals court’s ruling in May 2023 about the admissions policy at the elite public high school in Virginia may provide a vehicle for the U.S. Supreme Court to flesh out the intended scope of its ruling Thursday, June 29, 2023, banning affirmative action in college admissions.
A group of rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., in August 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. The U.S. Supreme Court on Feb. 20 declined to hear a challenge to an admissions plan for the selective high school that was facially race neutral but designed to boost the enrollment of Black and Hispanic students.
J. Scott Applewhite/AP
Law & Courts School District Lawsuits Against Social Media Companies Are Piling Up
More than 200 school districts are now suing the major social media companies over the youth mental health crisis.
7 min read
A close up of a statue of the blindfolded lady justice against a light blue background with a ghosted image of a hands holding a cellphone with Facebook "Like" and "Love" icons hovering above it.
iStock/Getty