Teaching the Vote: The Right to Civic Education and Cook v. McKee

Education is the “very foundation of good citizenship,” wrote Justice Earl Warren in his 1954 opinion for Brown v. Board of Education. [1] Nearly twenty years later, in Wisconsin v. Yoder (1972), Chief Justice Warren Burger wrote that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system.” [2] Often, however, public school curricula lack civic education requirements, and thus do not adequately prepare citizens to understand and engage with the United States’ democratic system of government. 

In Rhode Island, fourteen public school students took to the courts to argue that the lack of civic education in their public schooling inhibited them from functioning “productively as civic participants capable of voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and [participating] effectively in civic activities.” [3] The students thus argued that they had faced a violation of their Fourteenth Amendment Equal Protection Clause rights, which guarantee that “no State shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the laws.” [4] The students claim that the lack of civic education in Rhode Island placed them at a disadvantage in civic participation as compared to public school students in states with civics requirements, thus violating the Equal Protection Clause by denying them an equal ability to access the franchise. Given the need for civic education to promote democratic participation, the federal court system ought to recognize a base level of civics education as a requirement in public school curricula under the Equal Protection Clause.

In Cook v. McKee (2022), Rhode Island public school students ranging in age from preschool through twelfth grade argued that the lack of civic education in their curriculum provided a significant obstacle to their engagement with local, state, and national political systems. An amicus brief by the National Council for Social Studies, for example, detailed the standards that must be met to gain the skills needed to participate in American democracy. The amicus posits that three key facets of government– civic and political institutions, participation and deliberation, and processes, rules, and laws–must be taught.[5] The student appellants in Cook v. McKee noted that these standards were not met by their schooling; while the state curricula mandated testing on reading, math, and science, no such standards—no standards at all, in fact—were set for civic knowledge. Without civic education, the students maintained, they lacked an understanding of how to address controversial political topics or how to utilize the news media in analyzing current events. [6]

An amicus brief in support of these students, presented by a collection of Latinx student advocacy groups, highlights how the lack of civic education among certain public school students violates the Fourteenth Amendment Equal Protection Clause. The brief relies on the standard set by Plyler v. Doe (1982), in which the Supreme Court ruled that withholding public education from the children of undocumented immigrants was a violation of their Fourteenth  Amendment Equal Protection Clause rights. [7] In his majority opinion for Plyler, Justice William Brennan argued,

[The] denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. [8] 

The amicus brief applies this standard in noting that Latinx students tend to be located in more poorly funded public schools without civics courses and tend to score more poorly on standardized civics tests; consequently, Latinx students are not receiving an education that is sufficient to prepare them for “capable citizenship.” [9] The brief argues that this segregated access makes it challenging for an entire class of Latinx students to civically engage, for “when the government provides certain citizens, on the basis of race, a constitutionally inadequate education, the government necessarily deprives the full franchise of citizenship to that group.” [10] Without civic education, entire groups of students are systematically deprived of an understanding of their right to participate, which creates a compelling case that Rhode Island’s lack of civic curriculum did constitute an Equal Protection Clause violation. 

In recognizing the right to a basic civic education, federal courts ought to rely upon the strong precedent that recognizes the U.S. government’s role in promoting civic learning. In Ambach v. Norwick (1979), the Supreme Court held that the prevention of non-citizens with no intent to apply for citizenship from being hired for public school teaching jobs is not a violation of the Fourteenth Amendment’s Equal Protection Clause. [11] In his majority opinion, Justice Lewis Powell wrote that public school jobs may be withheld from non-citizens due to public teachers’ deeply ingrained civic responsibility; teachers have a duty to “promote civic virtues and understanding in their classes, regardless of the subject taught,” Powell wrote. [12] Powell’s opinion referenced New York State Law that required schools to “promote a spirit of patriotic and civic service,” highlighting the court’s recognition of civic education as a duty of the school system. Powell went on to affirm that the court sees education as a necessary training on democratic participation, writing that “the importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions.” [13] 

However, in its January 2022 decision, the First Circuit Court of Appeals ruled against the student appellants in Cook v. McKee, finding that Rhode Island’s inability to provide a basic civic education was not unconstitutional. The court ruled that the lack of civic education did not strip the students of a “minimally adequate education” and thus that the students had not “plausibly alleged the deprivation of a fundamental right.” [14] The Court of Appeals’ decision relied largely on the Supreme Court’s ruling in San Antonio v. Rodriguez (1973), which held that the disparate public school resources produced by property-tax funding systems in Texas did not violate the Equal Protection Clause. [15] In Cook v. McKee, the court reasoned that the standard set in San Antonio v. Rodriguez, which requires only an “adequate base education for all children,” had been met by the Rhode Island public school system. Under the court’s ruling, “the right to participate in a functioning democracy is ‘not wholly inaccessible without civics education,’” and thus the lack of civic education in public school curricula does not violate the Fourteenth Amendment. [16] 

This ruling is out of line, however, with the vital importance of civic education in exercising the franchise. Given the value of civic education to democratic participation, the court system ought to recognize that civic education is a necessary factor in students’ constitutionally required “base education.” As was found in a study of students who received pilot civics instruction in Philadelphia public high schools, civic education holds long-term implications for voting. Those students who received civic education were not only more likely to vote in future elections, but also more likely to understand the specific policy positions of the candidates for whom they cast their ballots. [17] Professors David Campbell and Richard Niemi (2016) corroborate that political knowledge increases as students undergo civic learning— knowledge increases with the implementation of civics tests as a graduation requirement, for example. Campbell and Niemi find that this effect is most pronounced for the children of immigrants whose parents “are likely to be less familiar with the US political system than people who came of age in the U.S.,” highlighting that the deprivation of civic education clearly violates the Equal Protection Clause through disadvantaging certain groups more than others. [18] 

Given that civic education vitally enables citizens to exercise their right to the franchise, the lack of civic curricula in many states provides a dismal outlook for civic participation and thus functions as a clear violation of students’ constitutional rights. A 2018 study by the Center for American Progress found that nine states have no requirements whatsoever for civics courses and that young citizens in these states tend to be less civically engaged. [19] Across the nation, government investment in civic education falls behind investment in other topics; spending per student on STEM-related education is over a thousand times higher than spending on resources for teaching civics and American history. [20] There exists a clear disparity in educational access between states with no civic requirements at all and states requiring civics courses, volunteering, and tests on American government. Thus, the disadvantage some students face in learning about their citizenship is a clear violation of the Equal Protection Clause and should be recognized as such by the federal court system. 

The ruling against the Rhode Island students in Cook v. McKee, though it did not mandate that the state provide civic education, did recognize the immense value of civics courses. In his majority opinion, Rhode Island District Court Judge William Smith noted that “this case does not represent a wild-eyed effort to expand the reach of substantive due process, but rather a cry for help from a generation of young people.” [21] Judge Smith continued that the state’s lack of civic education constitutes “a deep flaw in our national education priorities and policies.” [22] Given the existence of this deep educational flaw, the heavy precedent supporting the civic role of public schooling, and the vast research affirming that civic education functions as a prerequisite to civic duties, the federal court system should rule that withholding a basic civic education is a violation of the Fourteenth Amendment Equal Protection Clause. Public school systems that fail to offer their students essential training on democratic government place their students at a fundamental disadvantage in accessing and understanding the franchise. As noted by the National Council for Social Studies’ amicus brief, students who do not understand the meaning and function of our democratic principles “cannot meaningfully participate in a democratic society that is built upon them.” [23] 

Edited by Rebecca Reyes

Sources:

[1] Brown v. Board of Education, 347 U.S. 483 (1954). 

[2] Wisconsin v. Yoder, 406 U.S. 205 (1972). 

[3] Cook v. McKee, 20 F.1st 2082 (Fed. Cir. 2022). 

[4] U.S. Const., 14th Amend. 

[5] National Council for the Social Studies, Brief amicus curiae in Cook v. McKee, online at http://www.cookvmckee.info/media/microsites/cook-v-raimondo/Amicus-Brief-NCSS.pdf (visited March 30, 2022). 

[6] Id at 3. 

[7] Latino Justice PRLDEF et. al, Brief amicus curiae in Cook v. McKee, online at http://www.cookvmckee.info/media/microsites/cook-v-raimondo/Amicus-Brief-Latino-Justice-et-al.pdf, (visited March 30, 2022). 

[8] Plyler v. Doe, 457 U.S. 202 (1982). 

[9] Id at 8. 

[10] Id.

[11] Ambach v. Norwick, 441 U.S. 68 (1979). 

[12] Id at 11. 

[13] Id.

[14] Id at 3. 

[15]  San Antonio Independent School District v. Rodriguez, 411 U.S. 1, (1973). 

[16] Id at 3. 

[17] Josh Pasek, Lauren Feldman, Daniel Romer, and Kathleen Hall Jamieson, “Schools as Incubators of Democratic Participation: Building Long-Term Political Efficacy with Civic Education,” in Applied Developmental Science, (Vol. 12, 2008), 26-27. 

[18] David E. Campbell, Richard G. Niemi, “Testing Civics: State-Level Civic Education Requirements and Political Knowledge,” in The American Political Science Review, (Vol. 110, Issue 3, 2016), 495-511. 

[19] Sarah Shapiro, Catherine Brown,  The State of Civics Education, The Center for American Progress, online at https://www.americanprogress.org/article/state-civics-education/. (visited March 30, 2022)

[20] Kimberly Adams, What federal funding for civics reveals about American political discourse, online at https://www.marketplace.org/2019/11/06/what-federal-funding-for-civics-reveals-about-american-political-discourse/. (visited March 30, 2022)

[21] “Cook (A.C.) v. McKee: The Case to Establish a Right to Education Under the U.S. Constitution,” The Center for Educational Equity: Teacher’s College, Columbia University, online at http://www.cookvmckee.info/. (visited March 17, 2022) 

[22] Id at 21. 

[20] Id.