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’ lead counsel, Michael Rebell, Professor of Law and Educational Practice and Executive Director of TC’s Center for Educational Equity, 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’t 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’s constitutional rights. [Read a story about Rebell’s 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’s 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’t think there’s 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’s incredible.
I have never seen a judge thank people for bringing a case that he said had no legal basis for judicial involvement. That’s 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’s own words, “survive as a country,” and he’s telling Rhode Island’s Governor and legislature, “the Court adds its voice to Plaintiffs in calling attention to their plea” — in other words, you’re not doing right by these kids and you need to make changes.
My major disagreement with the Judge is that I don’t 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’s why they welcomed this case.
So we have no confidence that when Governor Raimondo reads Judge Smith’s decision, she’s 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’ve said it in my book and elsewhere, and I’ll say it again: That’s 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’ve said it in my book and elsewhere, and I’ll say it again: That’s 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’t 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’s no right to education in the Constitution in the context of a fiscal equity claim — the plaintiffs’ contention that spending on their schools was much lower than in a neighboring wealthier district. The decision said, in essence, there’s 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’s 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’t exercise those rights without some level of basic education.
Our argument is that while the [Supreme] Court said [in 1973] that there’s 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’t exercise those rights without some level of basic education.
And Justice Powell, writing for the majority, didn’t dispute that. But, he said, the Rodriguez plaintiffs didn’t present evidence that they weren’t 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’s position in Rodriguez. We said that the Rhode Island public schools don’t 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 “a crack in the door.” That’s 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’s very important that the Judge agrees that there is an opening.
So the question is: What does that opening allow? Justice Powell’s language was ambiguous. Judge Smith read it to say that you only have a right if you’re 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’re asking for a meaningful education, more than bare literacy or elementary knowledge. We think that to confront the “crack” 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’t 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’t have due process or a fair existence. It’s a bit like natural law — “certain rights just exist.”
In secular terms, U.S. Constitutional law defines substantive due process as something that is deeply grounded in the nation’s history and traditions — 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 — that you couldn’t imagine a state saying that people can’t get married. And meanwhile, the Court in recent years had established that there couldn’t be discrimination against gay people, and since marriage is a fundamental right, that’s 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 — to say, “Wasn’t education deeply rooted in our history, and our traditions?”
Now, in 1789, public education was not well established throughout the United States — so our adversaries argued that it isn’t in our traditions. Our public education system really only began in the mid-19th century.
We say — and it’s a fascinating area of analysis — that the relevant timeline isn’t 1789, it’s 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 “all persons born or naturalized in the United States,” 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 — 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’s a matter of state law, not federal law.
So he’s teed it up for the First Circuit court to decide.
We’ll say, No, it’s 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’t come through in the past. It’s a question of whether it’s a sufficient priority for these schools to provide what’s needed. States have regulations on the books, but if they don’t follow up and hold schools and districts accountable, it doesn’t 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 — 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’d come out in litigation, we’d 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’d come out in litigation, we’d 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’re 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’s clear we have to get into the question “What is an education that’s adequate for civic participation?”
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’ll have to say that either it’s any education at all or else that it’s much more than that minimum.
Even if we ask them to put out a broad perspective on that, they’re not going to micromanage it. They’re 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’re 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’re 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’t yet had an experience of the public education system in Rhode Island, a plaintiff in the case? It’s 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, “I want this cleaned up in time for my kid to benefit.”