A federal judge will hear oral arguments Thursday in the latest case saying education is a right under the U.S. Constitution — litigation with the potential to have an “electric effect” on public schools, experts say.
Cook v. Raimondo is a Rhode Island class action lawsuit in which the plaintiffs — ranging from a toddler born last year to recent high school graduates — argue the state is not providing an education that adequately prepares students to participate as informed citizens in civic life.
Both Rhode Island Gov. Gina Raimondo and the state legislature, as well as state Education Commissioner Ken Wagner and the state Board of Education have filed motions to dismiss the case. Thursday’s hearing before Chief Judge William E. Smith at the U.S. District Courthouse in Providence will focus on those motions.
But Michael Rebell, lead counsel for the plaintiffs, is hoping this will be the lawsuit that ultimately leads the U.S. Supreme Court to answer a question left hanging 46 years ago in San Antonio Independent School District v. Rodriguez. Education is not named in the Constitution, but in that school funding case, the justices referred to the “basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.”
The Cook lawsuit is similar to Gary B. v. Snyder, a Michigan case filed in federal court on behalf of Detroit students against former Gov. Richard Snyder. The complaint alleges the state’s “systemic, persistent, and deliberate failure to deliver instruction and tools essential for access to literacy in plaintiffs’ schools, which serve almost exclusively low-income children of color, deprives students of even a fighting chance.”
The Cook complaint goes beyond literacy and includes “a much more robust definition” of education, Rebell says. The case focuses specifically on Article 4, Section 4, which guarantees each state “a Republican form of government.”
But he adds that both cases “are saying after 46 years it’s time to push the argument and ask the Court to consider it and say exactly what they mean.”
In Rhode Island, the lack of a civics course requirement, a vacant social studies coordinator position at the state level, and no professional development for teachers related to civics are among the points made in the Cook complaint, filed a year ago. In addition, Rebell and other organizations argue the state does not provide sufficient academic support for its growing population of English learners.
The U.S. Department of Justice found several problems with how Providence Public Schools was educating ELs, and the district is currently responsible for improving services under a settlement. But Rebell said he didn’t know how the district — now under a state takeover — would be able to improve programs without additional money.
“If you are going to prepare kids adequately for citizenship as we define it, you’re going to have to improve the whole education system,” says Rebell, a professor of education law at Teachers College, Columbia University, and the founding director of the Educational Equity Campaign.
‘An incredible phenomenon’
The Rodriguez decision meant the “door to the federal courthouses” were closed, Rebell says, which has left advocates arguing school finance cases in the state courts. Initially, there was pessimism such cases would be successful, but the wave of decisions in favor of plaintiffs has “been an incredible phenomenon,” he adds. “No one expected state courts to be positively responsive.”
Still, about 40% of the cases have not been successful, which is why Rebell opted to file the case in federal court. In Rhode Island, for example, the state Supreme Court ruled against the plaintiffs in two previous cases. Plaintiffs in Illinois have also been unsuccessful.
The Michigan case is before the federal appeals court for the 6th Circuit, while the Rhode Island decision will be appealed in the 1st Circuit. If one appellate court rules in favor of the plaintiffs, but not the other, the U.S. Supreme Court would be more likely to hear the case.
Derek Black, a law professor at the University of South Carolina, says plaintiffs in either case would need a “really strong theory” for the court to accept the case. That theory, he argues, dates back to Reconstruction, when Congress required the Southern states to include an education guarantee in their state constitutions to be readmitted to the Union.
“What I do know is that our founders believed that you needed [an education clause],” he says. “It’s not a policy question. It’s an original concept of our democracy question.”
That state requirement is an issue in Mississippi, where another federal case, now before the 5th Circuit appeals court, argues state lawmakers “have diluted” the education clause because schools predominantly serving black students are chronically underperforming and don’t have what they need to provide a quality education.
“They lack textbooks, literature, basic supplies, experienced teachers, sports and other extracurricular activities, tutoring programs, and even toilet paper,” according to a summary of the case.
In Rhode Island, state officials maintain arguing for a constitutional right to education is a threat to local control.
But if the U.S. Supreme Court ultimately accepts the case and decides education is a fundamental right, the ruling would have an “electric effect throughout the country,” Rebell says.
“This could be enormously earth shattering for some of these school districts,” Black adds. “The consequences couldn’t be higher.”