‘A Cry for Help From a Generation of Young People’

Despite denying the plaintiffs’ case, Judge William Smith argued vigorously for educating children “on civics, the rule of law, and what it really means to be an American, and what America means.” PHOTO COURTESY OF ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW

EDITOR’S NOTE: Several public school students in Rhode Island, through their parents, filed a federal lawsuit against the state in 2018 alleging the failure to provide them with an adequate education in civics. The students argued their studies failed to “prepare them to function productively as civic participants capable of voting, serving on a jury, understanding economic, social and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”

The case was quite extraordinary in several respects, not the least of which was U.S. District Judge William E. Smith’s opinion and order, which delivered an extensive rationale for the vital importance of civics instruction at this time.

The court ruled against the students, however, holding that U.S. Supreme Court precedent precluded a finding that the Constitution provides a right to civics education in public schools. Judge Smith’s ruling recently was upheld by the U.S. Court of Appeals for the First Circuit.

Excerpts of the judge’s ruling, delivered Oct. 13, 2020, in federal court in Providence, R.I., follow. It has been edited for length with some assistance from the judge.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

C.A. No. 18-645 WES
A.C., a minor by her parent and guardian ad litem, et al., Plaintiffs, 
v. Gina Raimondo, et al., Defendants.

Opinion and Order
WILLIAM E. SMITH, DISTRICT JUDGE

While this lawsuit must be dismissed, it is worth pausing, before explaining why, to acknowledge the importance of Plaintiffs’ effort here. 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 who are destined to inherit a country which we — the generation currently in charge — are not stewarding well.

What these young people seem to recognize is that American democracy is in peril. Its survival, and their ability to reap the benefit of living in a country with robust freedoms and rights, a strong economy, and a moral center protected by the rule of law is something that citizens must cherish, protect, and constantly work for. We would do well to pay attention to their plea.

At the same time, there is a lot for the student Plaintiffs to learn from this case. The path of Supreme Court holdings that leads inevitably to the conclusion that this case must be dismissed is a civics lesson all its own, one worth contemplating as well in these fraught times. It is a path not just of the law in the abstract, but, to paraphrase Justice Holmes, of practical experience.

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In recent years, scholars and commentators have warned of the impending threats to democracy in the United States and around the world. In How Democracies Die, Professors Steven Levitsky and Daniel Ziblatt of Harvard describe democratic regimes across the world that have fallen to authoritarian rule, including Venezuela, Hungary, Peru, Ecuador, Turkey and more. The authors describe four key indicators of authoritarian behavior: “1. Rejection of (or weak commitment to) democratic rules of the game; 2. Denial of the legitimacy of political opponents; 3. Toleration or encouragement of violence; 4. Readiness to curtail civil liberties of opponents, including media.”

Levitsky and Ziblatt describe numerous norms of political behavior that keep the American democratic system in place, the so-called “guardrails of democracy.” These rules of the game are not written into our Constitution but are the unwritten — and universally under-stood — norms of behavior that allow us to govern and to be governed. Two of the most crucial, they argue, are mutual toleration (i.e., the idea that rivals can agree to disagree and not let every difference become a fight to the death) and institutional forbearance (i.e., the notion that political leaders will not use every drop of their power under the law to achieve their goals if to do so would violate the spirit of the law). The authors describe the erosion and collapse of these norms across the American landscape.

It is both these hallmarks of democracy and concomitant democratic norms that, in effect, Plaintiffs here suggest are missing from the civics education of our young people — not just education about the mechanisms of our democratic system, but its spirit, about what it means to be an American and even what America means.

We are a society that is polarized as much as any time in our history. We live in echo chambers of cable television news shows, Twitter feeds and YouTube videos. And political leaders, driven further and further to their extremes by their increasingly extremist constituencies, appear more willing to break through the soft guardrails of democracy to achieve their ends.

Even as this Opinion was being prepared, the president tweeted that perhaps the presidential election should be delayed because of perceived “voter fraud.” This prompted a swift and strong rebuke from all quarters, including from one prominent conservative legal scholar who called this behavior fascistic and deserving of immediate impeachment and removal from office.

Perhaps such an extreme suggestion by the President momentarily stiffened the guardrails of democracy, but the existential problem of creeping authoritarianism will not subside after one Tweet storm. In the aftermath of the killing of George Floyd in Minneapolis and with a global pandemic rocking the economy, families and every aspect of our social and cultural lives, the country is riven with dissension and violence. Murder and violent crimes are increasing in large metropolitan areas. And basic public health protocols, like wearing face masks in public places, have become political litmus tests leading to more infection spread and death. And worse yet, forces of anarchy and political desperation cynically stoke these fires of division to pursue or retain power.

In his ruling that referenced social media trolls and Russian interference in U.S. elections, Judge William Smith of the U.S. District Court of Rhode Island said: “[S]urvival of our democracy … will not happen just because we want it to.” PHOTO COURTESY OF ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW

As we watch all this unfold in real time before our eyes — shootings of protestors and federal security guards; federal troops using extreme tactics; passers-by screaming racial epithets at a man peacefully holding a Black Lives Matter sign; and burning and vandalizing of courthouses (just to name a few) — one could reasonably wonder if the American experiment can survive it all.

As historian Anne Applebaum, in her new book Twilight of Democracy: The Seductive Lure of Authoritarianism, says, “It might be a turning point. Maybe my children and their friends — all of our friends, and all of us, really, who want to go on living in a world where we can say what we think with confidence, where rational debate is possible, where knowledge and expertise are respected, where borders can be crossed with ease — represent one of history’s many cul-de-sacs. … Maybe new information technology will continue to under-mine consensus, divide people further, and increase polarization until only violence can determine who rules. Maybe fear of disease will create fear of freedom.”

Or, Applebaum wonders, perhaps the pandemic will be a tipping point toward global cooperation, recognition of the importance of science and rejection of hucksters, liars and demagogues. Either way, it will be a choice.

Across the political spectrum, while sounding the alarm regarding the perilous state of our country in this moment, many see reason to hope. But survival of our democracy, as they point out, will not happen just because we want it to. We will have to work for it, struggling not only against the haunting ghosts of our nation’s past, but against new forces of illiberalism, anti-intellectualism and authoritarianism — from social media trolls, to conspiracy theories like Q-Anon, to Russian interference in our election and even the siren call of nostalgia for the good old days. Our leaders must, of course, do this by respecting the rules of the game and the rule of law and appointing judges who, to paraphrase Chief Justice John Roberts, are neither Republican nor Democrat, but women and men doing their level best to follow the rule of law, and, to bring it back home to this case — we need to educate our younger generation, the ones who will inherit the mess we are making and ultimately be responsible for the success or failure of American democracy for generations to come.

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Larry Diamond, a senior fellow at the conservative Hoover Institution and prolific author and commentator on politics and the future of democracy, notes in his work Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency: “Education is particularly key here. When people are educated at least through high school, it broadens their outlook on life. They become more tolerant of differences and nuances. This inclines them to become more active, informed and rational citizens, and thus restrains them from being seduced by extremists.”

And to put an even finer point on it, as A.C. Grayling, professor of philosophy at the New College of Humanities in London, argues in Democracy and Its Crisis that compulsory education in civics (along with compulsory voting) is a critical step that could be crucial in reconfiguring the place of politics in the national community.

The call for reform is coming not only from the scholarly community and think tanks. Leaders of the judicial branch too have signaled the need for civic leaders (including federal judges and court staff) to help educate our young people on civic values and institutions. For example, Chief Justice Roberts devoted his most recent annual Year-End Report on the Federal Judiciary to this challenge, saying, “[W]e have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”

The Chief Justice went on to discuss how courts and judges do more than just publish opinions. Indeed, many courts, including this District, devote thousands of hours to teacher education, online and written course materials and efforts to bring students into the court-house to observe proceedings and meet with lawyers, judges and court personnel. Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit has been another judicial leader in this effort. He has created a learning center in the Thurgood Marshall U.S. Courthouse, convened a conference of judges and court staff to facilitate collaboration on civics education, and developed a program on the subject.

And there is more. As Chief Justice Roberts points out, from retired Justice Sandra Day O’Connor’s iCivics non-profit, to individual judges who volunteer their time as tutors, to the National Constitution Center in Philadelphia replete with interactive exhibits and videos, “civic education, like all education, is a continuing enterprise and conversation. Each generation has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.”

These efforts point out how concerned members of the judiciary are about the erosion of the civic values and norms described above. As the third branch, with neither the power of the purse nor an army to compel compliance, the judiciary relies entirely upon the public’s respect for our democratic institutions and the rule of law. When that respect crumbles, the guardrails fail and democracy dies. To avoid this fate, we must not only teach our young people the mechanics of our civic institutions, but why they matter in the context of American democracy. That is, we must do the hard work of confronting our national history and how it informs who and what we are as a nation.

This is what it all comes down to: We may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or we may ignore these things at our and their peril. Unfortunately, this Court cannot, for the reasons explained below, deliver or dictate the solution — but, in denying that relief, I hope I can at least call out the need for it.