The Students Suing for a Constitutional Right to Education
A new federal complaint with a unique argument accuses the state of Rhode Island of failing to provide students with the skills they need to participate effectively in a democracy.
BY ALIA WONG NOV 28, 2018
Nearly all of the world’s 180-plus countries include the term education in their constitution. Most guarantee every child the right to free education, and many make participation in some form of schooling mandatory; some even provide universal access to affordable college. For the remaining handful, the UN’s decades-old treaty on children’s rights, which stipulates various educational protections, serves as a backup, and has been ratified by pretty much every sovereign nation on the planet. Except for one.
That one country is the United States of America, a nation that prizes the idea that anyone should be able to build a better life through education and hard work. Activists have occasionally sought to address this constitutional omission through congressional legislation, grassroots campaigns, and federal litigation, but they’ve never succeeded. Of the few cases that have made it to the U.S. Supreme Court, not a single one has managed to secure a majority ruling in favor of an argument that there is an implied right to an education in the Constitution. Against this backdrop, federal litigation over educational rights has all but disappeared in the past half century. Meanwhile, the nation’s public schools continue to vary significantly in funding, quality, and academic and social outcomes.
A class-action lawsuit, which is being filed in federal court in Rhode Island Wednesday evening and was provided in advance to The Atlantic, argues that baked into the Constitution is an implicit guarantee of high-quality education—in fact, that the constitutional system could not function were this not the case.
If the lawsuit were to succeed in the nation’s highest court (if it even makes it there), it could usher in a major overhaul of the country’s education system.
The 14 plaintiffs in Cook v. Raimondo, all public-school students or parents on behalf of their children, accuse the state of Rhode Island of providing an education so inferior that the state has failed to fulfill its duties under the U.S. Constitution. But given that there is no explicit guarantee of education in the Constitution, the lawyers are making a sort of bank-shot argument: that in denying citizens of Rhode Island a quality education, the state is, in essence, preventing people from exercising their constitutional rights, such as forming a legal assembly (as is guaranteed by the First Amendment) or voting (as is guaranteed by the Fifteenth). That this denial falls unevenly across the population is a violation of the Fourteenth Amendment, which promises people equal protection under the law. As of Wednesday afternoon, none of the defendants offered comment on the suit.
The absence of an explicit right to education in the Constitution is not some mere oversight but is instead the result of the country’s federalist system of government: Schooling in America is not the domain of the federal government, but rather the domain of states, all 50 of which mandate in their individual constitutions the provision of public education. This decentralized approach has its benefits: Local governments control their local schools, and parents in any one place can more easily involve themselves in educational policy than they could if those policies were national. But one consequence, many observers contend, is that school funding varies hugely from region to region, often with those who have the greatest need getting the least. With close to half of education spending coming from local property-tax revenue, a child’s zip code has a huge bearing on the quality of her schooling.
This inequality was the motivation behind a federal suit that some 40 years ago became the closest attempt at persuading the Supreme Court to find a right to an education in the Constitution. In San Antonio Independent School District v. Rodriguez, the plaintiffs—a group of low-income, largely Latino parents in the San Antonio, Texas, area—argued that the glaring disparities in the funding of their school district versus that of the wealthy, predominantly white community nearby amounted to an infringement on their equal-protection rights under the Constitution. The case, like much of the educational-rights litigation at the time, piggybacked off of Brown v. Board of Education, which two decades prior had convinced the Supreme Court that the separation of students by race was unconstitutional.
But in a contentious 5–4 decision, Rodriguez ruled that the equal-protection clause couldn’t be used to challenge school-financing formulas. According to legal scholars, the high court has since avoided educational-rights cases altogether: “The Supreme Court was concerned about opening up a whole new can of worms,” says Columbia University’s Michael Rebell, the lead counsel on the case and an education-law professor at the university’s Teachers College.
Since then, almost all legal battles over school funding or inadequacy have been waged in state courts. Today, educational equity is the most active area of litigation regarding state constitutions in these courts, according to Rebell. Such suits have been brought in pretty much every state, more than half of which—60 percent—have resulted in a finding that there is a right to a high-quality education under the respective state constitution, according to Rebell. Rebell has been involved in more than a dozen of these cases, including a precedent-setting suit in New York that in the early 2000s successfully argued that in underfunding New York City’s schools, the state’s school-spending system had been denying New York City children their right to a “sound, basic education,” which the New York Court of Appeals said was guaranteed by the state’s constitution.
Still, Rebell was as troubled then as he is now about the paucity of civics instruction in schools, which he says has contributed to the present-day resurgence of tribalism, historically low public trust in government, and post-truth politics. He interprets these longer-term, real-world consequences as evidence that the Constitution does indeed guarantee a right to education—hence, Cook v. Raimondo. As for why Rebell and his team chose Rhode Island as their battleground? One reason is that Rhode Island’s Supreme Court has held on two past educational-rights suits that issues around school adequacy and equity are not the province of the state judiciary. The judges have instead determined that the onus is on the state legislature to address the problems, but according to the plaintiffs in Cook, lawmakers have failed to do so.
More than that, though, the lawyers for the plaintiffs identified in Rhode Island’s education system a perfect case study for the modern-day challenges dogging public schools across the country—significant socioeconomic inequality and wide achievement gaps, for example, and a steadily growing population of immigrants, many of them Latino. (The number of Latinos in the state has tripled since 1990; they’re expected to make up 14 percent of the population by 2032.) Rhode Island has some of the worst segregation in the country: One in five schools is at least 90 percent white, while more than one in 10 is at least 90 percent students of color. The way Rebell describes it, the state has failed to support the needs of students who are learning English as a second language, a failure that he argues prevents them from exercising their constitutional rights.
“It occurred to me that you really need the basics of being able to speak English,” Rebell told me earlier this year, “and that [in a place like Rhode Island], you have a long ways to go if you want to say you’re preparing all kids for capable citizenship.”
Another thing that made Rhode Island appealing was not that it stood out for any reason, but that it didn’t: Deficiencies in civics education are common across the country. Like many states, Rhode Island’s social-studies policy is vague; there is neither a required civics course nor a required American-history curriculum. Meanwhile, the position of social-studies specialist in the state’s education department has remained vacant for the past six years, and the vast majority of Rhode Island’s teachers lack training in civics, according to the complaint. And, as is the case in many states, in Rhode Island access to civic skills and knowledge tends to correlate with income, according to Rebell. Take, for example, the fact that the plaintiffs attend schools that have only a small supply of antiquated computers, a dearth that deprives students of the “critical educational opportunities necessary to develop the skills for internet and media literacy,” the complaint contends.
Mark Santow, a Providence School Board member and a professor at University of Massachusetts, Dartmouth who often discusses urban-education history with his students, joined the suit as a plaintiff because he’d long noticed that his 13-year-old son had never had any civics instruction in his public-school classrooms. His son is fortunate in that he can resort to other places to learn civics skills and knowledge, he told me. “Because my son has an American-history professor as a dad, and is growing up in … privilege, he’ll be okay—but as a citizen and a moral being, that isn’t sufficient,” Santow says. “Most of the students around him aren’t receiving the education they need or deserve, and ultimately that means he isn’t either.”
In focusing on civics, the lawyers behind Cook v. Raimondo hope that they can appeal not just to liberals who are more inclined toward the establishment of a national right to education, but also to conservatives who’ve long advocated for improved civics education, which is often touted as a nonpartisan issue. “It’s a creative, shrewd effort to cobble together a coalition of liberals and conservatives,” says Justin Driver, a professor of law at the University of Chicago and the author of the new book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. Driver, who wasn’t involved in Cook, pointed to the fact that the retired Justice Sandra Day O’Connor, who was appointed by Ronald Reagan, has dedicated her life after retiring from the bench to promoting civic learning.
Cook v. Raimondo isn’t the only pending suit seeking to get the Supreme Court to decide whether the Constitution guarantees a right to education. A separate case now heading to the Sixth Circuit Court of Appeals, Gary B. v. Snyder, accuses the state of Michigan of violating the Constitution by denying students in Detroit the opportunity to become literate.* Results from national standardized tests suggest that far fewer than 10 percent of the city’s public-school students are proficient in reading. The premise of the Gary B. case is that depriving a child of the ability to read and write pigeonholes her into a life defined by destitution and exclusion. National data show that adults with the lowest levels of literacy are disproportionately unemployed.
Like Rhode Island’s Cook, Michigan’s Gary B.is innovative: It’s the first case in the U.S. to argue that enshrined in the country’s Constitution is the right to become literate—and thus to effectively interpret education as inherent to literacy. And the two suits similarly contend that the school system’s importance lies in its role as a human-capital engine that promotes a functioning democracy. “The court got it tragically wrong when it characterized access to literacy as a privilege, instead of a right held by all children so that they may better their circumstances and meaningfully participate in our political system,” stated Mark Rosenbaum, the lead attorney representing the plaintiffs in Gary B., back in July, when the first judge to hear the case dismissed it. Momentum around Gary B. picked up this week, with a series of organizations and education scholars filing amici briefs in support of the appeal.
But Rebell, who last week filed his own amicus brief in support of the Detroit suit, takes issue with its constrained definition of education, arguing that literacy is just one component of a much broader scope of skills and knowledge that schools ought to teach. The country, Rebell says, finds itself at a “very rare opportunity” to establish a fundamental right to education. The Detroit suit is important, and could achieve critical improvements for its extremely needy student population, but it isn’t taking full advantage of this opportunity, according to Rebell. If the Detroit case eclipses Cook, he argues, “we may no longer have an opening to look at this larger issue [of civics education]—and it’s a larger issue that’s not just for poor African American kids in Detroit but also for the vast majority of American students [who] are not getting what they need to be capable citizens in the 21st century.” Students, by and large, don’t even have a good grasp on the boilerplate stuff. In 2014, fewer than a quarter—23 percent—of eighth graders across the country got a solid score on the NAEP civics exam, a negligible increase from when it was first administered in the 1990s.
Ahmed is a 17-year-old student who’s lived in Rhode Island for a decade, having immigrated to the U.S. from Ghana as an infant. Ahmed, whom we’re identifying by his first name only because he’s a minor, decided to join as a plaintiff in Cook because he feels the civics education he receives has been lacking. “America’s changing,” he says, “and the way we teach people about America and about how they can play a role in America has to change, too.”
Ultimately, Cook faces a very steep road in its effort to act on the legal opportunity that’s been more than 40 years in the making. Rebell finds optimism in the nonpartisan appeal of the suit’s civics focus, and in the work of people like Neil Gorsuch, who is the latest Supreme Court justice to publicly advocate for better civics education. On the other hand, the University of Chicago’s Driver says it’s “highly improbable” that the case would clinch a favorable Supreme Court ruling given the Court’s acutely partisan current composition—and that’s if it arrives there at all. Driver believes that state courts are still a preferable vehicle for pursuing educational equity. But he and others acknowledge that the case unequivocally holds symbolic value. “It’s not like the status quo in many states is a good one,” Driver says, “so even if it’s a long shot, that doesn’t mean it’s one that’s not worth taking.”
For Jessica Marshall, an educator who spearheaded a civic-learning initiative in Chicago Public Schools, Cook v. Raimondo is, at the end of the day, an attempt to return to public education’s civic mission—to interrogate “why and how we [as a country]do school.”
And the suit, she says, illustrates that “that is a conversation that needs to be had not just for the sake of academic performance, but also for what we really do care about in the long run.” As for what that is? Marshall puts it simply: a country in which “our kids know how to discuss and care about things in their community, and they have the resources to do so.”