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There May Not Be a Right to Civic Education, But There’s Certainly a Crisis (Washington Examiner) July 10, 2019

Posted by daviddavenport in Op/Eds.

When something has been exaggerated or overdone, people often say “Don’t make a federal case out of it!” But students and parents in Rhode Island have done precisely that, taking the state and several of its officials to federal court over the failure of their schools to provide an adequate civic education. We are not taught how “to function properly as civic participants,” including voting, serving on juries and the like, say the students.

Rhode Island’s answer to the lawsuit, a motion to dismiss the case, makes its own interesting claims. There is no constitutional right to an education, even a civic education, Rhode Island has said. Besides, the defendants argue, this is not a matter for a federal court to rule on since education is a function of the states which have complete oversight over how they educate (or, in this case, do not educate) their people.

A very interesting and important constitutional throwdown, indeed, one that the students’ lawyer hopes to take all the way to the Supreme Court if necessary.

Notably, no one seems to be arguing that civic education in Rhode Island is adequate. Indeed, one could easily argue that the nation as a whole suffers from a civic education crisis. The latest results available show that only 18% of eighth-graders test as “proficient” or better in U.S. history, and a mere 23% in civics or government. Only 1-2% passed the test with a designation of “advanced” in those fields. A recent study by the Woodrow Wilson National Fellowship Foundation concluded that only 36% of Americans could pass the civics test that is part of the citizenship process. A 2017 Annenberg study noted that 75% of Americans do not know the three branches of government, and only a little more than a third could name one right guaranteed by the First Amendment of the Constitution.

So yes, Rhode Island, we have a problem.

The more difficult question is whether a federal lawsuit is an appropriate response. In a day when nearly everything seems to be a federal matter, it may be surprising to learn that the Constitution says nothing about a duty to educate. Until the No Child Left Behind Law in 2002, it was widely understood that education was a state and local matter and, when the Every Student Succeeds Act became law in 2015, responsibility swung increasingly back toward state and local control.

The lawsuit claims that several clauses of the Constitution, however, imply a right to a civic education by preparing students to be citizens. There is strong reliance on a 1973 Supreme Court case, San Antonio Independent School District v. Rodriguez, in which the court mentioned, but did not rely upon, the idea that citizens need “some quantum of education” to exercise their right to vote. It is essentially this narrow passage through which the plaintiffs’ lawyers seek to drive the Mack truck of a federal right to civic education.

It would have been a more promising case had it been brought in a state court, calling Rhode Island to account for failing to set proper standards, offer classes, and conduct testing in civic education. Even then, courts tend to defer to education officials to decide what constitutes a proper education and the lawsuit might have been turned back.

The lawyers, however, from Columbia Law School had a bigger project in mind: to create a federal right to a civic education and they shopped for just the right state and the best plaintiffs to bring it. Sometimes, a lawsuit is as much about making a statement as seeking a revolutionary outcome. Moreover, if the case actually goes to trial and is appealed, win or lose, the Supreme Court may say something that builds toward, if not establishes, a right to civic education.

Making civic education a federal case may at least build the larger public case about a crisis that must be addressed.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution. He is the co-author, with Gordon Lloyd, of How Public Policy Became War, published May 7.

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