By Patrick O’Connor | April 18, 2021
There is a “deep flaw” in our nation’s education policies. “American democracy is in peril.” These are two statements made by U.S. District Court Judge William Smith in his decision to reluctantly dismiss a class action brought on behalf of Rhode Island students to establish public education as a right under the U.S. Constitution. The plaintiffs’ argument in Cook (A.C.) v. Raimondo, is that the Constitution contains an implied right to an education that adequately prepares students to become capable citizens and participate in democracy. The lawsuit claims that, as a result of their failure to provide this necessary basic education, state officials, including then-Governor Gina Raimondo, have violated the Equal Protection Clause of the Fourteenth Amendment.
The largest obstacle for the Cook plaintiffs is the U.S. Supreme Court’s 1973 holding in San Antonio Independent School District v. Rodriguez. In Rodriguez, the Court declared that the Constitution does not guarantee equality of education. The Rodriguez case involved a challenge to the school district funding system in Texas. Because the funding system was primarily based on local property taxes, it resulted in significant disparities and state funding failed to equalize per-pupil expenditures. In ruling that education was not a “fundamental interest,” the Supreme Court rejected the claim that the funding system must pass a strict scrutiny standard of review. The Rodriguez decision seems to have foreclosed any educational equity challenges in federal courts. In his order dismissing the Cook case, Judge Smith noted that the “arc of the law in this area is clear.”
Dissenting opinions in Rodriguez by Justices Thurgood Marshall and William Brennan argued that there is an implied right to education in the Constitution because education is fundamental to the exercise of other constitutional rights—namely the First Amendment right to freedom of expression—and the fundamental interest in voting. The plaintiffs in Cook invoke this reasoning by arguing that students require an adequate education to “function productively as civic participants capable of voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”
It remains to be seen how the Cook plaintiffs will fare on their appeal to the First Circuit, but there is undoubtedly a need for a newfound priority on civic education by the States in the spirit of Cook and Justice Marshall’s dissent. As Judge Smith wrote, Cook is “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,” while concluding that “[h]opefully, others who have the power to address this need will respond appropriately.”
The State of Civic Education
In the United States, the federal government funds STEM education at an annual rate of $50 per student. Civics and history? Five cents. And the disparity is not because the latter contains little room for improvement. That three out of five Americans adults cannot name the three branches of government is concerning. And that only one-third could pass the civics test for naturalization generates many thoughts.
One reaction to this clear need for more civic education is the nearly twenty states that have implemented a civics test as a requirement for high school graduation—usually in the form of multiple-choice questions taken from the USCIS naturalization test. While necessary, traditional civics knowledge is certainly not a sufficient condition for generating an informed citizenry and building a strong democracy. Something more is needed: perfect scores on civics exams may do little to stem the trends of asymmetric partisanship and hyper-polarization, virulent discourse, “Big Lies,” and political discussions often void of substantive policy issues—by voters and candidates, alike. More worrying than citizens forgetting the specific First Amendment freedoms is a declining trust in government and a lack of engagement in civic life—or that the Economist Intelligence Unit rates the United States as a “flawed democracy,” largely as a result of low ratings in the “functioning of government” and “political culture” parameters.
Civic education must teach students how government works. But it should also engage students in their community and help all students feel equipped to participate in civic life—ideals not achievable solely by fact-based multiple-choice testing. To that end, the Brown Center on Education Policy at the Brookings Institution has recommended ten proven practices that are critical for high-quality civic education—with only one relating to curriculum content.
In a recently released report, titled “A Roadmap to Educating for American Democracy,” the Educating for American Democracy Initiative calls for a shift from “breadth to depth” in civic and history K-12 education with an emphasis on a shared and ideologically pluralist national conversation. This roadmap is neither content-neutral nor fact-based: rather, it seeks to promote student inquiry through conceptual “driving questions” and interpersonal civic engagement. Principles such as “civic friendship” and “reflective patriotism” attempt to promote honest, productive engagement and a reasonable assessment of history, respectively.
A model for civic education, and an approach for incorporating contentious topics, can be found in Germany’s nonpartisan Federal Agency for Civic Education. Germany established regional civic education offices to facilitate “citizenship education” and provide information on a range of topics. A principle of the German model is that those topics that are most “political” should be the topics most protected from political interference in the school curriculum.
A Recent Example
Massachusetts, as the first state to require middle school and high school students to complete a civics project as part of its curriculum, has taken a positive step towards achieving deeper, community-focused civic education. The Massachusetts bill, An Act to Promote Civic Engagement, passed in 2018, bolsters the teaching of traditional civics topics, such as the founding documents, but it moves beyond book learning to promote the development of skills required of capable citizens.
The bill, with its focus on student-led projects, implements the “action civics” idea. Action civics is an approach by which students identify an issue that impacts their community and then develop an action plan to address the problem. At its root, action civics takes a participatory view of democracy and identifies that students learn best by doing. Action civics is one of the Brown Center’s proven practices and the primary catalyst of the civic learning approach proffered by Generation Citizen, which was part of the coalition supporting the Massachusetts bill. The action civics approach aligns civic learning with the broad push for the development of “21st Century Skills” in K-12 education. Examples include neighborhood sanitation in New York City, as well as Anaheim middle school students improving the quality of water in school drinking fountains.
Subsequent to the passage of the bill by the state legislature, the Massachusetts Department of Elementary and Secondary Education (DESE) released a guidebook which included examples of potential civics project topics for schools, such as youth vaping, transportation, and local police accountability. While implementation primarily occurs at the local level, state support is evident, and necessary, as there will likely be pushback regarding topics some deem too “political.” Other elements of the 2018 bill include the creation of a Civics Project Trust Fund, and competitions at the middle school (statewide civics challenge) and high school (voter registration) levels.
A recent report by DESE and another in-depth report issued by the Office of State Rep. Andres X. Vargas, provide key takeaways and suggested recommendations about the initial status of the Massachusetts civic education legislation. Common findings, among teachers and students, included a broad interest and belief in the importance of civic learning, but varied levels of awareness of the new civic education standards. Unsurprisingly, and understandably, the COVID-19 pandemic has had implications on the implementation and current priority level of civic education. Recommendations for improvement centered around more professional development; increased involvement/support at the school administration level; equitable distribution of programmatic resources; the incorporation of more democratic classroom practices; and the development of holistic, portfolio-based assessment. Additionally, a recommended idea is a “civics seal” award for exemplary school districts to incentivize high-quality civic learning programs.
After completing an action civics project, nearly all surveyed students felt more knowledgeable about the purposes of government and more aware of the ways they could participate in civic society. Students also reported a feeling of greater connection to their school and community after completing a project. Importantly, there were strong findings that students felt more capable of distinguishing opinion from fact and more confident in engaging in civil discussion with those with whom they disagree. Teacher responses about their students also reflected these sentiments. Additionally, many teachers were cautiously optimistic about a renewed priority on civics and social studies, including the development of a statewide assessment, as this would lead to more (1) resources and support on the one hand, but on the other, (2) potential pressure to “teach to the test” combined with (3) a tension between standardization and authentic, student-led civic learning. The recommended portfolio assessment may help alleviate this pressure.
Democracy Requires Civic Education
Young people are becoming more civically engaged, according to traditional measures such as voting: estimates show that up to 56% of eligible voters, ages 18-29, voted in the 2020 presidential election, an increase of about ten percentage points from 2016. Youth advocates and organizers are also increasingly involved in issues that they care most about, including climate change, gun control, and racial justice. The COVID-19 experience is also likely to have generational impact. In an increasingly complex world, there is a clear need to provide a quality civic education to all students.
As students advance in school, they become increasingly “bored out of their minds.” The correct antithesis for boredom in schools should not be fun but rather authentic engagement. More traditional approaches to civic learning will do little to alleviate the feeling held by many students that school is utterly disconnected from their life. It is much easier to endure difficult assignments and aspects of life when there is a broader purpose behind one’s work. A civic education that connects to students’ lives can encourage them to explore their own ideas, find out how they can uniquely contribute to their community and, in the process, provide a greater context to the rest of their academic learning.
Over a century ago, John Dewey noted the familiar notion that for a government by way of popular suffrage to be legitimate, it must rest upon the internal authority of an educated populace. Dewey goes beyond that explanation for the importance of education to a democracy, describing democracy as “more than a form of government; it is primarily a mode of associated living, of conjoint communicated experience.” Civic education is a necessary component of what should be goals of quality education: furthering the self-actualization process, strengthening democratic participation, and increasing social mobility.
Despite rejecting education as a fundamental right in Rodriguez, the Supreme Court has consistently valued its importance, emphasizing that education provides “fundamental values necessary for the maintenance of a democratic political system” and “the very foundation of good citizenship.” And Justice Sandra Day O’Connor, the last member of the Supreme Court to have served in a state legislature, founded iCivics, a nonprofit dedicated to providing high-quality, engaging civic learning for students. Nearly two-thirds of state high courts have stated that preparation for a “capable citizenry” is a primary purpose of the education clause of their state constitutions. It seems, in light of judicial reliance on the political process to find solutions, that any principled constitutional theory should include the right to an education adequate enough to exercise one’s constitutional rights and participate in civic society.
The current energy around reimagining civic education is indicative of the state of our nation. Across the country, numerous sectors and institutions recognize that something must be done to prepare students to think critically, improve our political climate, and bring truth to the aphorism that democracy is a verb. However, the what and how remain contentious along ideological lines—prompting the question of whether we disagree on our views of history and civic ideals because of our politics, or vice versa. Difficult conversations and challenges remain. Nevertheless, the momentum is encouraging, but it is also incumbent on everyone to realize that we are all teaching the youth and that they are always watching. We should keep the following in mind:
No written word, no spoken plea can teach our youth what they should be.
Nor all the books on all the shelves, it’s what the teachers are themselves.
Schools are ubiquitous and underutilized assets. Time will tell if the generation(s) currently in charge can get out of their own way and strive to educate the youth “not for the existing state of affairs but so as to make possible a future better humanity.” To paraphrase Horace Mann—as the kids are now, so will America soon be.
Patrick O’Connor is a 1L at Harvard Law School.
For more information on civic education:
 2020 WL 6042105, C.A. No. 18-645 WES
 411 U.S. 1 (1973).
 As a result of Rodriguez, education equity advocacy has been focused on state legislatures and litigated in state courts. Judge Jeffrey Sutton of the Sixth Circuit observes that the Rodriguez decision may have been a net positive as it resulted in school funding reform at the state-level, as opposed to a national approach. Today, all states now have some form of education funding equalization legislation, and the Supreme Court of Texas ruled that the system of school funding at issue in Rodriguez was unconstitutional under the Texas Constitution. Much inequity remains, particularly along racial lines. For a critical history of the case and the effects of inequality on students, see “The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Education Opportunity” (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).
 In addition to the Equal Protection claim, Cook implicates Article IV, Section 4 of the Constitution (guaranteeing to every state “a republican form of government”). In a 2018 law review article, Professor Derek Black notes that during Reconstruction, the U.S. government used the guarantee of republican government in Article IV to force Southern states to guarantee public education in their state constitution as a condition of approval for acceptance back into the Union, and continued to do so even after ratification of the Fourteenth Amendment. Professor Black argues that this creates a stronger substantive argument to establish a fundamental right to education than that of the Equal Protection claim.
 Note: The author previously worked as a fellow for Representative Vargas on matters unrelated to civic education.
 Plyler v. Doe, 457 U.S. 202, 221 (1982); Brown v. Board of Education, 347 U.S. 483, 493 (1954).