This past week, the U.S. District Court for Rhode Island dismissed Cook v. Raimondo, a case that sought to establish a Constitutional right to an education that prepares students to function effectively as citizens in a democracy. In the following interview, the plaintiffs鈥� lead counsel, Michael Rebell, Professor of Law and Educational Practice and Executive Director of 麻豆原创鈥檚 , discusses some of the history behind the case and why he remains optimistic about the prospects for an appeal.
Some brief history: Cook v. Raimondo revisits Rodriguez v. San Antonio Ind鈥檛 School District, a case in which, in 1973, the U.S. Supreme Court ruled that there is no right to education in the U.S. Constitution. The Court arguably left the door open for the argument that there is a right to be educated in order to be able to exercise one鈥檚 constitutional rights. [Read a story about Rebell鈥檚 early preparation for Cook v. Raimondo that recaps the history of Rodriguez.]
Cook v. Raimondo has also overlapped with Gary B. v. Snyder, a recent case in which the plaintiffs argued that the functional illiteracy of students who had attended the Detroit public school system constituted a denial of their constitutional rights.
Why did the Judge respond so positively to the case you presented, yet still dismiss it?
It鈥檚 an unprecedented thing for a judge to be so enthusiastic and so strongly in support of what the plaintiff is trying to accomplish, and yet then pull back from allowing the case to proceed.
Judge Smith dismissed the case because he doesn鈥檛 think there鈥檚 a sufficient legal basis for the right we claimed. Yet he also said that the plaintiffs should be commended for bringing this case, and he expresses the hope that others will respond appropriately.
I have never seen a judge thank people for bringing a case that he said had no legal basis for judicial involvement. That鈥檚 incredible.
I have never seen a judge thank people for bringing a case that he said had no legal basis for judicial involvement. That鈥檚 incredible.
Judge Smith is saying that these students are right to demand the kind of education that is necessary for the U.S. to, in the Judge鈥檚 own words, 鈥渟urvive as a country,鈥� and he鈥檚 telling Rhode Island鈥檚 Governor and legislature, 鈥渢he Court adds its voice to Plaintiffs in calling attention to their plea鈥� 鈥� in other words, you鈥檙e not doing right by these kids and you need to make changes.
My major disagreement with the Judge is that I don鈥檛 think these policymakers are going to respond appropriately, in Rhode Island or in many other parts of the country. The Court is a necessary catalyst to induce the policymakers to make civic education a high priority and truly educate our students to be capable citizens.
The Rhode Island courts refused to take action on education adequacy issues on two occasions in the recent past, and they also said that this is a matter for the governor and the legislature. Well, the education advocates who are supporting this case tried for years to seek a remedy that way in Rhode Island, and they got nowhere. That鈥檚 why they welcomed this case.
So we have no confidence that when Governor Raimondo reads Judge Smith鈥檚 decision, she鈥檚 going to do anything positive for these kids.
We brought this case to make education for citizenship a high priority for Rhode Island and nationally. And I鈥檝e said it in my book and elsewhere, and I鈥檒l say it again: That鈥檚 not going to happen without intervention and compulsion from the courts.
We brought this case to make education for citizenship a high priority for Rhode Island and nationally. And I鈥檝e said it in my book and elsewhere, and I鈥檒l say it again: That鈥檚 not going to happen without intervention and compulsion from the courts.
What makes you hopeful that there might be a different outcome in this case on appeal?
Judge Smith has really given us a clear roadmap to the U.S. Court of Appeals for the First Circuit, where we will file our appeal.
First, he did us a great favor by clearing away all kinds of extraneous procedural and technical matters. For example, the defendants said we should have pulled in all school districts as plaintiffs, but the Judge swept that aside. He said that our plaintiffs have standing and that we joined the right parties. So we won鈥檛 have to deal with those contentions at the next level.
And second, he narrowed the case to two major legal issues: equal protection and substantive due process.
What is equal protection?
In its decision in Rodriguez in 1973, the Supreme Court said that there鈥檚 no right to education in the Constitution in the context of a fiscal equity claim 鈥� the plaintiffs鈥� contention that spending on their schools was much lower than in a neighboring wealthier district. The decision said, in essence, there鈥檚 no legal basis for this claim in the U.S. Constitution, so take it to the state courts.
Our argument is that while the Court said that there鈥檚 no general right to education, Justice Thurgood Marshall wrote a strong dissenting opinion in that decision saying that there is a 15th Amendment that says all citizens have a right to vote and a First Amendment that says all people have a right to the exercise of free speech. And Marshall said that you can鈥檛 exercise those rights without some level of basic education.
Our argument is that while the [Supreme] Court said [in 1973] that there鈥檚 no general right to education, Justice Thurgood Marshall wrote a strong dissenting opinion in that decision saying that there is a 15th Amendment that says all citizens have a right to vote and a First Amendment that says all people have a right to the exercise of free speech. And Marshall said that you can鈥檛 exercise those rights without some level of basic education.
And Justice Powell, writing for the majority, didn鈥檛 dispute that. But, he said, the Rodriguez plaintiffs didn鈥檛 present evidence that they weren鈥檛 getting an education that would prepare them to exercise constitutional rights.
So the position we put forward to the Rhode Island judge is that the Court left open the question of the level of education you need to exercise those constitutional rights.
In our case, we said that we were prepared to present the kind of evidence that was lacking to support Justice Marshall鈥檚 position in Rodriguez. We said that the Rhode Island public schools don鈥檛 require a civics course or provide significant experiences and extra-curricular activities that would help students to understand how to exercise those rights.
So for purposes of this motion, we presented sufficient evidence that kids are being denied education for citizenship.
The Judge also agreed that Rodriguez left open what he called 鈥渁 crack in the door.鈥� That鈥檚 an important step for us, because the defendants in this case, and critics over the years, have argued that the Court left no opening. Legally, it鈥檚 very important that the Judge agrees that there is an opening.
So the question is: What does that opening allow? Justice Powell鈥檚 language was ambiguous. Judge Smith read it to say that you only have a right if you鈥檙e getting virtually no education at all or an education that is totally inadequate. He said these kids in Rhode Island are getting some education, and there is no right to claim more than this bare minimum.
We鈥檙e asking for a meaningful education, more than bare literacy or elementary knowledge. We think that to confront the 鈥渃rack鈥� that the Supreme Court left open, the federal courts need to examine in some detail what kids really need to know, what skills, experiences and values they need to have to be effective citizens in a democracy. Judge Smith didn鈥檛 address any of that.
And what about substantive due process? Can you explain that in more detail?
The Supreme Court has used this concept occasionally.
It refers to certain things that are so critical to our culture, society and democratic system that without them, you can鈥檛 have due process or a fair existence. It鈥檚 a bit like natural law 鈥� 鈥渃ertain rights just exist.鈥�
In secular terms, U.S. Constitutional law defines substantive due process as something that is deeply grounded in the nation鈥檚 history and traditions 鈥� something that, if denied, would shock the conscience of the nation.
The plaintiffs in Gary B. put substantive due process forward, emphasizing the single sex marriage case that the Supreme Court ruled on a few years ago, Obergefell v. Hodges.
In that case, Justice Kennedy said that substantive due process called for a right to single sex marriage. He looked at our history and said that marriage has always been a fundamental right 鈥� that you couldn鈥檛 imagine a state saying that people can鈥檛 get married. And meanwhile, the Court in recent years had established that there couldn鈥檛 be discrimination against gay people, and since marriage is a fundamental right, that鈥檚 part of ensuring their equality. It was a real tour de force.
So with that as precedent, plaintiffs in other cases have been invoking substantive due process.
It makes sense to apply that to education 鈥� to say, 鈥淲asn鈥檛 education deeply rooted in our history, and our traditions?鈥�
Now, in 1789, public education was not well established throughout the United States 鈥� so our adversaries argued that it isn鈥檛 in our traditions. Our public education system really only began in the mid-19th century.
We say 鈥� and it鈥檚 a fascinating area of analysis 鈥� that the relevant timeline isn鈥檛 1789, it鈥檚 1868, which is when the 14th Amendment, which contains the due process clause, was passed. The only question is: By this time, was public education deeply rooted?
[The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to 鈥渁ll persons born or naturalized in the United States,鈥� which included former slaves recently freed.]
Recent scholarship has been inspired by our case. A law professor I know came up with a fascinating fact, which is that, at the time of early Reconstruction, when Republican abolitionists were in control of Congress, they said that for Southern states to rejoin the Union, they had to have a clause in their state constitution guaranteeing all people an education. Because the abolitionists wanted the freed slaves to get an education.
So 鈥� we should be looking at how deeply rooted a right to an education has been since the Civil War.
The Judge talks about all of this. But in applying it to our case, he essentially said, yes, education is deeply rooted, but it鈥檚 a matter of state law, not federal law.
So he鈥檚 teed it up for the First Circuit court to decide.
We鈥檒l say, No, it鈥檚 not a question for each state. Congress passed the 14th amendment for the nation as a whole.
What if you win on appeal, and there is a financial remedy from the legislature? That is, if the state were to put money into civic education?
It would depend not only on how much money, but also on how well they might reform civic education and make it a true priority. But the Rhode Island legislature hasn鈥檛 come through in the past. It鈥檚 a question of whether it鈥檚 a sufficient priority for these schools to provide what鈥檚 needed. States have regulations on the books, but if they don鈥檛 follow up and hold schools and districts accountable, it doesn鈥檛 mean anything. For example, Rhode needs to require a mandatory civics course, which New York has. Rhode Island has no such requirement.
Without that kind of requirement, kids are under the gun to meet standardized test requirements, so they neglect social studies and other courses and topics that would help prepare them for civic participation.
And what if the case does reach the Supreme Court 鈥� what makes you think the Justices there will reach a different conclusion than Judge Smith did?
Chief Justice John Roberts devoted his entire annual message to the judiciary last fall to the importance of civic education. He mentioned judges who established programs about the rule of law and pointed to them as great examples. So I think John Roberts would be open to thinking about the importance of civic education. Where he鈥檇 come out in litigation, we鈥檇 have to see.
Chief Justice John Roberts devoted his entire annual message to the judiciary last fall to the importance of civic education. He mentioned judges who established programs about the rule of law and pointed to them as great examples. So I think John Roberts would be open to thinking about the importance of civic education. Where he鈥檇 come out in litigation, we鈥檇 have to see.
And Justice Neil Gorsuch is also on record in support of the courts bolstering civic education. He wrote a book titled A Republic if You Can Keep It, which is a phrase borrowed from Ben Franklin.
So we think the Justices might be interested in revisiting Rodriguez. We think that this is a bipartisan issue, and that wherever you stand on the political spectrum, you鈥檙e going to recognize the importance of educating kids to understand and maintain our democratic system.
Who is ultimately going to define what an adequate civic education is going to look like? Does that revert back to the states, and if so, what about the flat earth people and the anti-Darwin people?
The way Judge Smith focused the issue, it鈥檚 clear we have to get into the question 鈥淲hat is an education that鈥檚 adequate for civic participation?鈥�
Is it a basic sixth grade education or is it the more robust version that we put in our briefs? A grounding in history and how government works? Critical thinking skills? Media literacy skills?
If the Court puts all that in a decision, they鈥檒l have to say that either it鈥檚 any education at all or else that it鈥檚 much more than that minimum.
Even if we ask them to put out a broad perspective on that, they鈥檙e not going to micromanage it. They鈥檙e not going to say, you have to teach so many hours of government, and so forth.
So there will be room for interpretation and it will depend on what state you live in. But we鈥檙e looking for the Court to make it a priority that a state has to focus on this and make it a priority for them.
But at the end of the day, local school boards and state legislatures and maybe the federal Congress will have to do the implementation. We鈥檙e not asking the courts to be super legislatures or super school boards.
Just a final point of interest: One of the plaintiffs in Cook v. Raimondo is a child in pre-kindergarten. Why is a child that age, who hasn鈥檛 yet had an experience of the public education system in Rhode Island, a plaintiff in the case? It鈥檚 parents who can speak for kids when it comes to legal standing. The mom said, this case will take a while, so my kid has a bigger interest in the outcome than current high school seniors who are going to graduate now. Basically, she was saying, 鈥淚 want this cleaned up in time for my kid to benefit.鈥�