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There's No Constitutional Right to Civics Education, a Federal Judge Reluctantly Concludes

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A federal court judge ruled Oct. 13 that the U.S. Constitution does not ultimately include a right to civics education, despite commending the thrust behind a lawsuit brought by Rhode Island high school students that hinged on that argument.

The long-awaited ruling by the U.S. District Court for the District of Rhode Island, for now, means that Rhode Island won't have to scramble to remedy what the students argued was substandard civics preparation in many schools, in violation of their rights. But the plaintiffs have already indicated they plan to appeal to the U.S. Court of Appeals for the 1st Circuit.

The decision comes amid a notable and often unpredictable wave of litigation in recent years seeking to show that a Constitutional right to education exists.

That notion was long thought foreclosed by the 1973 U.S. Supreme Court decision, in San Antonio Independent School District v. Rodriguez, which effectively scotched federal fiscal equity lawsuits in K-12 education.

In a paragraph of the Rodriguez ruling, though, Associate Justice Lewis F. Powell left a vague "crack in the door" suggesting that a district or state might fail so egregiously to educate students that it would rise to the level of a constitutional violation. And recently, legal scholars have developed compelling new theories to test what might fit through that crack.

One such case also failed at the trial court level, only to be revived by an appellate court.

A Michigan lawsuit, for example, sought to locate that right in literacy education, arguing that it is impossible to meaningfully exercise Constitutional rights, like voting or serving on a jury, without the ability to read and write. It contended that the abject failure to teach Detroit students those skills violated their rights. (In a groundbreaking ruling, a panel for the U.S. Court of Appeals for the 6th Circuit sided with the plaintiffs. But the full court later vacated that decision, and the case settled before a re-hearing.)

The Rhode Island lawsuit, which was filed in late 2018, took the basic idea of the Michigan lawsuit further. It located the right in civics education as necessary preparation for engagement in civic life.

Most constitutional law experts, though, have privately acknowledged the long odds of these lawsuits succeeding. And the Rhode Island lawsuit was ultimately not able to overcome decades' worth of precedent.

"The arc of the law in this area is clear. So there is little doubt that Plaintiffs' claims must be dismissed," Judge William E. Smith wrote in the decision.

A Reluctant Ruling

But Smith's decision was notable for his unusual reluctance to dismiss the matter out of hand. In an extended introduction, he commended the students for bringing the lawsuit.

"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," he wrote. "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."

He even referenced troubling current events as symptoms of a national problem with civic preparation, pointing to the rise in authoritarianism around the world; echo-chamber news consumption; some of President Trump's troubling tweets about potentially delaying U.S. elections; and the scenes of civil unrest following George Floyd's death earlier this summer in Minneapolis, among others.

Smith also wrote that the decision by the appeals court panel in the Michigan case was compelling, but ultimately "too thin a reed" to support the argument in favor of civics education as constitutionally protected. And, while he concluded that the 1973 Rodriguez decision did force his hand, he acknowledged that "the call is closer than defendants suggest, and closer than one might conclude on first pass."

Attorneys for the students have already said they'll appeal.

"This is the best losing decision I've ever had," said Michael Rebell, a professor and executive director of the Center for Educational Equity at Teachers College, Columbia University, who represented the plaintiffs in Rhode Island. "I've never had a judge commend my clients for bringing a case he decides against them before, so it is a very, very unusual decision."

For one thing, Rebell said, the judge agreed that the students had standing to sue and were an appropriate class to bring the lawsuit. Now what remains is a matter of interpretation.

"This issue is very clearly drawn. We have to argue, and we will argue, that you should read the Supreme Court's paragraph in Rodriguez—the ambiguous paragraph—a different way, and that there is an opening for an education adequate to prepare people for capable citizenship."

But Derek W. Black, a professor who has written both law review articles and now a history volume on the historical case for a federal right to education, felt that the meandering nature of the decision could make mounting an appeal more difficult.

"I just think there's a lack of clarity, number one, about what the precise right is. Is it quality? Is it the quantity of civics course offerings? Is it citizenship?" he noted. "When you go up on appeal, you're not in a position of saying, 'Hey guys, just look at this again;' you have that to say the lower court when it wrote X, made an error in this way. That lack of precision and clarity [in this opinion] is tougher."

Photo: Rhode Island students had sued Gov. Gina Raimondo, among others, for substandard civics education compared to what students in more affluent schools received. Here, Raimondo sits during a news conference in Providence, R.I. —AP Photo/David Goldman