A.C. v. Raimondo

• Decision Date: 13 October 2020
• Docket Number: C.A. No. 18-645 WES
• Citation: 494 F.Supp.3d 170
• Parties: A.C., a minor by her parent and guardian ad litem, et al., Plaintiffs, v. Gina RAIMONDO, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

494 F.Supp.3d 170

A.C., a minor by her parent and guardian ad litem, et al., Plaintiffs,

v.Gina RAIMONDO, et al., Defendants.

C.A. No. 18-645 WES

United States District Court, D. Rhode Island.

Signed October 13, 2020

Jennifer Louise Wood, Samuel D. Zurier, Jordan G. Mickman, RI Center for Justice, Stephen M. Robinson, Robinson & Clapham, Providence, RI, Michael A. Rebell, Pro Hac Vice, Center for Educational Equity, New Yrok, NY, for Plaintiffs.

Andrea M. Shea, Keith David Hoffmann, Michael W. Field, Rhode Island Office of the Attorney General, Providence, RI, for Defendants Gina M. Raimondo, Nicholas A. Mattiello, Dominick J. Ruggerio.

Anthony F. Cottone, RI Department of Education, Providence, RI, for Defendants Rhode Island State Board of Education, Council on Elementary and Secondary Education, Angelica Infante-Green.

OPINION AND ORDER

WILLIAM E. SMITH, District Judge.

I. Introduction¹

Several Rhode Island public school students have filed a putative class action in this Court through their guardians or parents, alleging violations of their constitutional rights because the State of Rhode Island (the "State") is not providing them with an adequate civics education. They are residents of Rhode Island enrolled in public schools across the state in grades seven through twelve, as well as one preschool-aged student who will eventually be enrolled in public school. See Compl. ¶¶ 13-25. Some Plaintiffs have received English Language Learner ("ELL") services or special education services from the Providence Public Schools. Id. ¶¶ 14, 17, 21.

These students allege that various public officials have failed to provide them and other similarly situated students with "an education that is adequate 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." Id. ¶ 4. The students contend that this failure violates their constitutional rights under the Equal Protection, Privileges and Immunities, and Due Process Clauses of the Fourteenth Amendment; the Sixth and Seventh Amendments and the Jury Selection and Service Act; and the Republican Guarantee Clause of Article Four. Id. ¶ 11-12.

They claim that Defendants have "downgraded the teaching of social studies and civics, focusing in recent decades on basic reading and math instruction" and have also "neglected professional development of teachers in civics education." Id. ¶ 35. In addition to the total lack of, or at least inadequate, civics instruction, they also point to "limited opportunities for student involvement in co-curricular and extracurricular activities", the elimination of "library media specialists", "no opportunities for field trips to the state legislature, city council, or courts", "no or very limited options ... for student participation in school governance or school affairs, [and] no or very limited school newspapers, school sponsored speech and debate or moot court activities." Id. ¶¶ 84, 88, 90.

By way of remedy, the students ask this Court to "[d]eclar[e] that all students in the United States have a right under the [Constitution] ... to a meaningful educational opportunity" that will adequately prepare them to be "capable" voters and jurors, as well as to exercise all of their constitutional rights and function as "civic participants in a democratic society[.]" Id. at 45-46. Plaintiffs also ask this Court to "[e]njoin[ ] the defendants ... from failing to adopt such laws, regulations[,] policies and practices as are necessary to ensure" that those educational opportunities are provided. Id.

This is an ambitious lawsuit. It asks this Court to declare rights that have not been recognized by the Supreme Court of the United States, or, with a single exception, any other federal court in recent history. There is a long tradition of efforts like these designed to use litigation to rectify wrongs, redirect government priorities, and pursue public policy objectives that, for one reason or another, have not been achieved through legislative or executive action. Indeed, policies involving education have been the subject of some of the most important litigation in the country's history. The use of litigation for these purposes, however, is certainly not without controversy. See generally Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); David A. Schultz, Leveraging the Law: Using the Courts to Achieve Social Change (1998).

Earlier this year, a divided panel of the U.S. Court of Appeals for the Sixth Circuit² issued a compelling and scholarly opinion, with an equally compelling dissent, finding that there is in fact a fundamental right to a "basic" adequate education, and specifically a "foundational level of literacy", in the U.S. Constitution's substantive due process guarantee. Gary B. v. Whitmer, 957 F.3d 616, 642 (6th Cir. 2020), vacated 958 F.3d 1216 (2020). The Gary B. case concerned a challenge to the adequacy of the education provided in the Detroit public school system. Id. at 620-21. For the reasons explained below, as strong a case as the Gary B. majority panel makes that there is, in fact, a substantive due process right to a basic education from a historical and policy point of view, it is insufficient to deflect Defendants’ Motions here.

It is true that the Supreme Court has sent mixed messages about education over the decades; and while the Court's occasionally opaque statements about education may be due to the shifting ideological bent of the Court, the arc of the law in this area is clear. So, there is little doubt that Plaintiffs’ claims must be dismissed. But 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.³

A. Democracy in Peril

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. Steven Levitsky and Daniel Ziblatt, How Democracies Die 2-6 (2018). 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." Id. at 23-24. Levitsky and Ziblatt describe numerous norms of political behavior that keep the American democratic system in place, the so-called "guardrails of democracy". See id. at 97-117. These rules of the game are not written into our Constitution but are the unwritten — and universally understood — norms of behavior that allow us to govern and to be governed. See id. 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). See id. at 102-17. (A prominent historical example of institutional forbearance is the unwillingness of even popular presidents like Washington, Jefferson, Jackson, and Grant to seek a third term in office before the passage of the Twenty-Second Amendment). See id. at 107-09. The authors describe the erosion and collapse of these norms across the American landscape. See id. at 145-203. 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.⁴

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,⁵ including from one prominent conservative legal scholar who called this behavior fascistic, and deserving of immediate impeachment and removal from office. See Steven G. Calabresi, Trump Might Try to Postpone the Election. That's Unconstitutional. (July 30, 2020),...