Appeals court to hear R.I. case with national implications for civics education

The appeal cites the Jan. 6 attack on the US Capitol as evidence of the need to improve instruction in “capable citizenship” and “civic discourse”

Some of the Rhode Island students behind a federal lawsuit claiming a constitutional right to an adequate civics education received a citizenship award from the New England First Amendment Coalition in 2020.Courtesy of the New England First Amendment Coalition

PROVIDENCE — A Boston-based federal appeals court will hear arguments on Monday in a Rhode Island case that carries national implications about whether students have a constitutional right to adequate civics education.

The appeal cites the Jan. 6 attack on the US Capitol as evidence of the need for better civics education.

“Recent events, including the January 6, 2021, violent storming of the Capitol by a mob motivated by a fundamental misunderstanding of the Congressional role in counting electoral votes, only emphasize further the Constitutional importance of a judicial declaration that education for capable citizenship is a fundamental interest,” the plaintiffs’ lawyers wrote. “The future stability of our nation’s democratic institutions may depend upon such a declaration.

“If America is to move beyond the extreme polarization that currently plagues our political culture,” the legal brief reads, “it is also essential that schools teach the next generation values of democratic toleration and civic discourse.”

But an attorney for the state urged the court to reject the appeal, saying the plaintiffs have shown no “causal connection” between the Jan. 6 attack and the “alleged inadequate instruction in civics.”

Anthony F. Cottone, chief legal counsel for the Rhode Island Department of Education, noted that the plaintiffs describe themselves as primarily African American and Latino students from low-income families.

“Yet, there did not appear to be many Black or brown faces in the mob that stormed the Capitol,” Cottone wrote. “In fact, the mob was cheered on by white men with diplomas from Ivy League graduate schools who presumably had the benefit of an adequate education in civics.”

In 2018, a class-action lawsuit was filed in US District Court in Providence on behalf of 14 Rhode Island students, arguing that the US Constitution entitles all students to an education that prepares them to participate effectively in a democracy.

In October 2020, US District Court Judge William E. Smith dismissed the case. But in his 55-page ruling, Smith described the lawsuit as “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.”

On Monday, a three-judge panel of the US Court of Appeals for the First Circuit will hear arguments in the appeal of Smith’s ruling.

Michael A. Rebell, the lead lawyer for Rhode Island students who claim the state is failing them, said there is a good chance the US Supreme Court will eventually be asked to take up the case. “I hope we prevail so it will be a decision that the state will have to make,” he said, “but I can tell you if we don’t prevail we will certainly ask the Supreme Court to hear the case.”

Rebell, executive director of the Center for Educational Equity at Teachers College, Columbia University, said he’s often asked about concerns that the Supreme Court is moving in a conservative direction. But he said: “Civics education is not a Republican or Democratic issue, not a liberal or conservative issue. People on all sides of the political spectrum tend to agree on it.”

While conservatives and liberals differ over exactly what should be taught in classrooms, “everyone agrees we need to prepare our children for a democratic society,” he said.

Also, Rebell noted that in his annual year-end report, Chief Justice John G. Roberts Jr. emphasized the importance of civics education. “In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital,” Roberts wrote.

In the state’s legal brief, Cottone argued that “binding legal precedent has established that there is no fundamental right to education under the United States Constitution.”

He cited the 1973 Supreme Court ruling in the case of the San Antonio Independent School District v. Rodriguez. In that 5-4 decision, the high court ruled that relying on property taxes to fund public schools does not violate the Equal Protection Clause even if there are disparities between districts.

But Rebell argued that the Rodriguez ruling left the door open for a lawsuit, such as this one, claiming students have a right to a “basic civics education” that prepares them to “function productively as civic participants capable of voting, serving on a jury, exercising free speech rights, and participating effectively in civic activities.”

Rebell gave Smith credit for an “an eloquent analysis” of why “American democracy is in peril.” But he said the judge narrowly defined the “quantum of education” necessary to prepare students to exercise their constitutional rights effectively.

“It doesn’t have to be the best possible or the most effective level of education,” Rebell said. “But it’s got to be more than functional literacy. It’s a middle ground.” In Rhode Island and elsewhere, civics education is far from that adequate middle ground, he said.

Rebell’s legal brief quoted from “A Republic If You Can Keep It,” a book by Supreme Court Justice Neil Gorsuch, noting that 23 percent of high school students throughout the nation are proficient in basic civic knowledge and skills and “only 30 percent of U.S. millennials agree that it’s ‘essential … to live in a democracy.’”

But Cottone contended that Rhode Island has taken steps to “help ensure that civics and social studies are an important part of the curricula in the state’s elementary and secondary schools.” And he argued that such complaints about civics education should be pursued with state and local education officials, not in a federal court.

“The circuit should decline plaintiffs’ invitation to unseat the Rhode Island General Assembly and convert the federal courts into local boards of education charged with unilaterally defining educational adequacy with respect to the teaching of social studies and civics according to plaintiffs’ vague specifications,” Cottone wrote.

Rebell said the plaintiffs aren’t trying to micromanage schools. “They ask only that defendants exercise their existing supervisory authority, which they have applied in numerous other areas of education, to ensure that civics education is a high priority for Rhode Island’s schools,” he wrote.

Rebell said he could have filed the lawsuit in any of 50 states because they all fall short in civics education. But he said students did research and found six states that were “incredibly deficient,” including Rhode Island.

And when he visited Rhode Island, Rebell discovered tremendous community support to improve the situation. About 100 people turned out for one meeting, including parents, teachers, and lawyers who had filed other education lawsuits. “They saw this as the only hope,” he said.