Is civics education a ‘right’? Rhode Island case tests theory.

Growing up in Providence, Rhode Island, Ahmed Sesay never had a class in civics. When he graduated from high school in 2019, he had to teach himself how to vote and pay his taxes.

Now 20 years old, Mr. Sesay is part of a lawsuit being decided by a Boston-based court of appeals this month that argues that students have a constitutional right to an adequate civics education.

“Civics shouldn’t be an elective,” says Mr. Sesay. “It’s a life skill, to understand how your government works.”

The suit was filed in 2018, but some legal scholars say it’s taken on new significance following the Jan. 6 storming of the U.S. Capitol, an event that the plaintiffs say underscored the need to teach students to distinguish fact from fiction, to disagree civilly, and to respect the peaceful transition of power. Democracy itself is in danger if citizens don’t understand how it works, they argue.

Attorneys for the state, however, argue that a ruling for the Rhode Island students would overreach, establishing a new “right” not found in the U.S. Constitution and usurping state and local authority over schools.

“The insurrection was part of a larger pattern of people showing a lack of understanding of how our system works,” says Martha Minow, a legal scholar at Harvard Law School who filed an amicus brief in the case. She pointed to surveys showing that close to half of Americans can’t name the three branches of government and nearly a third could imagine supporting a military coup.

The 1st U.S. Circuit Court of Appeals, based in Boston, is deciding whether to reverse a lower court’s dismissal of the case and declare a constitutional right to an adequate civics education. In their appeal, the plaintiffs cite the January attack as evidence of the need for the courts to declare “that education for capable citizenship is a fundamental interest.”

But attorneys for the state of Rhode Island and the Rhode Island Department of Education say the plaintiffs have failed to show a “causal connection between recent events and the alleged inadequate instruction in civics.”

They argue that there’s something else at stake in the case: state and local control over education.

If the court were to declare that students have a constitutional right to a civics education, “it would create ‘super school boards’ in the courts,” says Anthony Cottone, chief legal counsel for the state education department, echoing a phrase used by one of the members of the three-judge panel of the U.S. Court of Appeals for the 1st Circuit during oral arguments Nov. 1.

He says plaintiffs should have brought their complaint directly to the state, not to a federal court.

“If they weren’t teaching civics in any school in Rhode Island, they could come to the Commissioner of Education, make their case, and we’d require them to teach civics,” Mr. Cottone says. “If they weren’t, we’d take their aid away.”

Michael Rebell, an attorney for the plaintiffs and executive director of the Center for Educational Equity at Columbia University, says he isn’t asking federal judges to “micromanage” what’s being taught in America’s schools. He simply wants the courts to define what constitutes an adequate civics education and to craft an accountability system for monitoring schools’ compliance.

Right to any education?

The suit faces a steep climb. Writing this month in The Boston Globe, Ms. Minow quoted the landmark Brown v. Board of Education, which declared education “a right which must be made available to all on equal terms.” But federal courts have historically refused to recognize a constitutional right to any education at all – much less civics – and are unlikely to do so this time around, she acknowledges.

States, some 22 of which have a right to education written into their own constitutions, have been more sympathetic to such claims, says Derek Black, a professor of constitutional law at the University of South Carolina. In lawsuits, more than half of states have affirmed a constitutional right to an education, with some going so far as to dictate funding levels and program requirements.  

But some states, including Rhode Island, have resisted, resulting in a “bifurcation of rights,” based on where a student happens to live, Mr. Black says.  

These disparities have prompted a spate of lawsuits spanning four states that seek a federal right to some aspect of an education – be it as broad as basic literacy, or as specific as a civics education.

The lawsuits build on a 50-year-old school funding case, San Antonio Independent School District v. Rodriguez, that plaintiffs say left open the question of whether students might be entitled to some “quantum of education” that would impart “the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation on the political process.”

A district judge dismissed the Rhode Island case in October 2020, writing that the “arc of the law in this area is clear.” Yet he commended the 14 plaintiffs – most of whom are current and former students of color – for bringing it.

“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,” Judge William Smith wrote. “What these young people seem to recognize is that American democracy is in peril.”

Civil rights

In an amicus brief, the NAACP argued that equal access to a quality civics education is a civil rights issue. By failing to prepare Black and Hispanic students for civic engagement, Rhode Island is “perpetuating a history of disenfranchisement that continues to embarrass the United States,” the organization wrote.

State standards for the teaching of civics vary widely, says Lawrence Paska, executive director of the National Council for the Social Studies. Some include the subject in standardized testing regimes; others do not. Students in Rhode Island must complete three social studies courses that include a civics component, but they aren’t required to take a standalone course. In a 2021 report, the Fordham Institute gave the state a D in civics and an F in history, including it among 20 ranked as “inadequate” in both subjects.  

Mr. Rebell chose Rhode Island to base his lawsuit after visiting Providence and being welcomed by an audience of more than 100 educators, parents, and students who shared his concerns.

Mr. Sesay, then a junior, was among them.  

Looking back, Mr. Sesay says he had courses in history and social studies, but “it was very macro – a lot about the presidents, but not how local decisions are made,” he says. He knew America was a democracy, but the whole concept felt remote – an idea that drove decision-making 400 miles away, in Washington, D.C. 

Mr. Sesay says he wishes schools did more to teach students about local government and their own role in sustaining democracy.

“If students understood that civics is the way they learn how to change the world around them, they would want to know more, and not just learn about the past,” he says.