BOSTON (CN) — Against the backdrop of the January 6 Capitol riot, a lawyer for 18 schoolchildren pushed the First Circuit on Monday to reinstate their lawsuit claiming that the U.S. Constitution requires public schools to offer basic civics classes.
“How can you vote if you can’t understand policy positions or even how the voting process works?” argued Michael Rebell, who got his bachelor's from Harvard, his law degree from Yale and is now a professor at the Columbia University Teachers College. At oral arguments in Boston this morning, Rebell spoke to the necessity of training students in media literacy, noting that, “if you can’t distinguish erroneous from accurate information, you’re not in a position to vote.”
But U.S. Circuit Judge William Kayatta, one of three on the First Circuit panel, was dubious. “You’re saying the Constitution requires every school in the country to teach media literacy skills,” he observed. “Your premise is that the district court, rather than the school board, the educators, the parents, the teachers, should decide whether it’s more important to teach media literacy than, say, critical thinking.”
Kayatta, an Obama appointee, worried that such a holding “seems to turn us into a super school board.”
Rebell represents 18 Rhode Island students who claim their schools offer no civics education whatsoever. They say civics is necessary to understand how to vote, serve on a jury and make other informed choices as a citizen, and therefore classes are a substantive right under the Due Process Clause. They also claim that other schools offer civics lessons and thus they’re being denied equal protection of the laws.
The case has drawn national attention, including an amusing segment on "The Daily Show."
When U.S. District Judge William Smith rejected the suit in October 2020, he concluded that “there is no constitutional right to any civics education” under existing precedent but offered a lengthy diatribe urging the First Circuit or the Supreme Court to change the law.
“What these young people seem to recognize is that American democracy is in peril,” Smith wrote.
“Plaintiffs should be commended for bringing this case,” the opinion concludes, with the final plea that, “hopefully, others who have the power to address this need will respond appropriately.”
It would be just three months later that an armed mob of conservative extremists who were unhappy about the 2020 election results stormed the U.S. Capitol in a bid to keep then-President Donald Trump in power.
Leading up to arguments Monday, Rebell noted in an interview with the Associated Press that the attempted coup underscores the need for civics education. “Those who took part in the January 6 insurrection … I don’t think they had any understanding of how the Electoral College works, what the role of Congress is vis-à-vis the president,” said Rebell, who is the executive director of the Center for Educational Equity at Columbia. “Anybody who graduates from high school should have that kind of essential information."
Judge Smith had warned about the problem in last year's ruling. “When the real historians fade from the front, the demagogues move in,” he wrote. “The most popular ‘history’ books in recent years are written by the likes of disgraced cable television commentator Bill O’Reilly.”
Pointing further to the writings of Trump that at least one prominent legal scholar had dubbed “fascistic," Smith also predicted that “the existential problem of creeping authoritarianism will not subside after one tweet storm.”
Twitter would later banned Trump in the wake of the Jan. 6 riot for continuing to spread disinformation about the election.
Among the Rhode Island plaintiffs are Moira Hinderer and her 10-year-old daughter June. Hinderer said that when they made their way to federal court for the case, June asked, “What’s a judge, what’s a court?”
The Supreme Court decided back in 1973 that there is no general constitutional right to an education, although it suggested that an extreme lack of education could potentially violate equal protection.
Last year the Sixth Circuit held that this test was met by the “abysmal” public schools in Detroit that didn’t teach basic literacy. Because the court voted to rehear the case en banc, however, that decision was vacated. The reargument never occurred meanwhile after Governor Gretchen Whitmer settled the suit.
Michael Field of the Rhode Island Attorney General’s Office told the judges that the Detroit case was extreme because it amounted to an absolute denial of an education. He said there was evidence of eighth graders teaching math classes to seventh graders, and of classrooms where the temperature was 110 degrees.
He underlined that “no other court has recognized in the history of the country” a right to education in a specific subject matter. “There’s simply no authority out there," Field said
Anthony Cottone, representing the state education department, said there’s a “self-evident distinction between a right to basic literacy … and the amorphous civics education forming the basis of the plaintiffs’ claim here.”
This argument appealed to U.S. District Judge Denise Casper, an Obama appointee sitting by designation from the District of Massachusetts.
“Isn’t this just about the nature of education, not an absolute denial?” she asked. “In the Sixth Circuit case the children were getting no education. Here we’re focused on what should be part of the curriculum. How is that not different?”
And U.S. Chief Circuit Judge Jeffrey Howard, a George W. Bush appointee, suggested that not teaching civics wasn’t a “radical denial” of education “such as not teaching how to read and write.”
Rebell responded that “literacy is necessary, but something more is also necessary.” He quoted Martha Minow, a former dean of Harvard Law School, who said an education without a civics component “is a totally inadequate education.”
“Yes, this would be a statement of a new right,” Rebell admitted, but he assured the judges that recognizing such a right “would not involve micromanaging anything in Rhode Island.”
The plaintiffs hope to go to the Supreme Court and obtain a ruling that will change the law in the entire country. In the Ocean State, however, they have already largely succeeded in their goal: In September Governor Dan McKee signed into law a bipartisan bill to make civics proficiency a requirement for all high school graduates.
“Strengthening civics education in our schools is crucial to creating a more engaged and informed citizenship and developing a strong generation of future leaders,” McKee said. “This legislation will help ensure that our graduates have the knowledge they need to both understand and participate in all levels of government.”