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COMMENTARY

Why civics education should be ‘a right which must be made available to all on equal terms’

The former dean of Harvard Law School points out that self-government needs people who are equipped to govern

While no task is more important to a society than educating each next generation, this task is central for a democracy. Self-government needs people equipped to govern — equipped with knowledge, motivation, and ability to pursue their own interests while also recognizing and caring about the rights and needs of others. The Supreme Court of the United States recognized this in the landmark 1954 Brown v. Board of Education decision. There, the highest court not only ended government-ordered racial segregation in schools but also enshrined education as the most important function of local and state governments and as “a right which must be made available to all on equal terms.”

For too many students, that promise has not been realized and the federal courts have avoided recognition of a national, enforceable education right. That could change. Currently pending before the U.S. Court of Appeals for the First Circuit is A.C. v. McKee, a case brought by 14 Rhode Island students who seek to affirm the right to an education that includes at minimum introduction of knowledge, skills, experiences, and democratic values necessary for them to effectively exercise their constitutional rights to vote, to exercise free speech, to serve as jurors, and to participate in their democratic government.

These minimal elements give form to the equal access to education—and include education for and about civics. The perils of a populace ignorant of basic constitutional mandates and democratic norms are all too evident in the growing percentage of young adults who think military take-over is acceptable if the government is ineffective, in the two-thirds of Americans who cannot name the three branches of government, and the fragility of the electoral processes across the country. The older generation and the Constitution itself owe the federally guaranteed minimally adequate civic education that Plaintiffs seek—an education enabling citizens to participate in the political process in a reasoned and lawful manner.

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The court of appeals has before it the findings of the district court which correctly recognized the central, historical role of education, including civic education—but resisted announcing or enforcing the right to a minimally adequate civic education. Supreme Court jurisprudence makes clear that when schools fail to prepare students to participate capably in democratic society, they fail to provide an adequate education. In Brown, the Court emphasized that education “is the very foundation of good citizenship.” In Tinker v. Des Moines Independent Community School District, the Court recognized that public education is critical to the success of the Nation’s democracy. And the majority in Plyler v. Doe, reiterated that schools instill “fundamental values necessary to the maintenance of a democratic political system,” and education is necessary to “sustain our political and cultural heritage.”

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Moreover, the predominantly low-income students of color represented by the Rhode Island plaintiffs are deprived of the access to the minimally adequate civic education enjoyed by their more affluent counterparts in predominantly white districts. This disparate treatment contravenes promise or a right which must be made available “on equal terms.” To deny access to an adequate civic education is to deny participation in our democracy. Citizens should not — and the Equal Protection Clause mandates that they cannot — be so stigmatized, stifled, and made subservient based on the zip code in which they were born.

Without a civic education, citizens have often insuperable obstacles to effective exercise of their rights to free speech, to vote, to jury service — to self government. Let us hope that our Court of Appeals does the right thing.

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Martha Minow is the 300th Anniversary University Professor at Harvard University. Formerly, she was the Dean of Harvard Law School. She has contributed an amicus brief in the A.C. (Cook) v. McKee case.