By Robert Kim
Originally published in the March/April 2020 issue of AC&E
These days, a health crisis is at the forefront of many people’s minds. The coronavirus outbreak has made international news and generated widespread concern. Quarantines are up, and the quest for a vaccine is on.
Yet, scary as the COVID-19 virus is, I’m more preoccupied with a different kind of ailment: the health of our democracy.
Can you spot the symptoms?
It’s 2020. Our nation and its denizens face major problems at home and abroad. With impeachment in our rear-view mirror, we’re now barreling toward what promises to be yet another divisive presidential election. Our confidence in the ability of the federal government (to say nothing of our state and local leaders) to function properly is incredibly low. According to the Pew Research Center, only 17 percent of Americans today say they can trust the government in Washington to do what is right.
Moreover, our ability to hold government accountable appears to be crumbling. As citizens, we lack basic knowledge of our democratic institutions; a 2019 survey by the Annenberg Public Policy Center reveals that only two in five American adults can correctly name the three branches of government.
Equally troubling as our lack of basic civic knowledge is our lack of appetite for civic engagement. It’s true that some of us are active; on any given day, our town meetings, state capitols, and the halls of Congress teem with constituents. But, if you pan out, there’s increasingly a sense that nothing we do or say will spur our fellow citizens, much less our elected officials, to think or act differently.
I suspect that the problem is not apathy
That is, we aren’t somehow inherently less engaged than before. Rather, we live in an online era in which people can access information and engage with each other in a way that feels public, but is essentially still private, in nature. Activism today consists of millions of closed-loop conversations. We’re connected to some, yet disconnected from our larger society and systems of government. Paradoxically, the Internet’s democratizing of information may have damaged democracy itself (at least in the short term). We need to figure out—and fast—how to cultivate public civic engagement for the 21st century.
A renewed focus on civics education in K-12 schools would help. Just as with any subject in the curriculum, students need to learn how to participate in their democracy in today’s times. In short, the teaching of civics—and our democracy—need a booster shot.
There’s hope that this may yet happen; according to the National Conference of State Legislatures, in the 2018 legislative session alone, at least 31 states proposed bills or resolutions related to civics education, and 22 states enacted them.
I’ve been asking myself: how can I contribute to civics education?
Some personal history here. I’m a civil rights lawyer and policy wonk by training, not a K-12 teacher or curriculum specialist. I worked for the federal government, in the education department, until the end of 2016. (You can probably guess why I left.) In fact, I didn’t learn civics in grade school or college; it wasn’t until law school that I properly understood how government even works in the U.S. And so my approach to civics education is shaped by the surfeits and deficits of my own background.
That said, here are my personal operating instructions: first, show how legal education is fundamental to civics education, and second, help K-12 educators incorporate law into civics education.
Achieving step one above is easy for social studies or government teachers, who keenly understand how are society is built on laws. Zeroing in on public education alone, we can see how everything from school governance and funding to testing and accountability to equal opportunity and civil rights protections comes from a matrix of legal decisions—including statutes and regulations, executive orders, and court decisions.
Step two above is a bit trickier. After all, the law, with its jargon and traditions, isn’t the most accessible body of knowledge—even for law students or lawyers. Nor is legal education a staple of most teacher certification or masters programs.
For now, I’ve decided to focus on one aspect of law that lends itself well to K-12 education: court cases—specifically, opinions from the Supreme Court of the United States (or SCOTUS) that deal with civil rights and civil liberties issues impacting students in public schools.
I’ve compiled an explanation of key cases in a compact book, Elevating Equity and Justice: 10 U.S. Supreme Court Cases Every Teacher Should Know (Heinemann 2020), and included tips on how to teach them to K-12 students. These cases address sexual harassment (Davis v. Monroe County), immigrant students (Plyler v. Doe), racial integration (Parents Involved v. Seattle), students with disabilities (Endrew F. v. Douglas County), school funding (San Antonio v. Rodriguez), English learners (Lau v. Nichols), free speech (Tinker v. Des Moines), separation of church and state (Lee v. Weisman), privacy (Safford v. Redding), and student discipline (Goss v. Lopez).
Why these cases in particular?
For one thing, they are a terrific way to teach concepts of equity and social justice. These are among the cases have shaped virtually all of the rights and liberties conferred upon the American K-12 student. What better way for students—and teachers—to examine the principles of (for example) free speech, equal protection, or privacy than to explore the application of those principles to real-life disputes involving youth like themselves?
As pedagogical tools, SCOTUS cases have the benefit of being historical artifacts in their own right. Although we may vehemently disagree with the reasoning or outcome of some of them (I certainly do), they can be important guiding documents, arguably parallel to (if less vaunted than) other core government canons like the U.S. Constitution and the Bill of Rights. And they often include discussion of constitutional principles, instantly lifting their words off a dusty page and into the real world.
Plus, history begets history: even relatively recent Supreme Court cases can be excellent springboards for discussion of important prior historical developments. One can hardly study the SCOTUS’ 2007 Parents Involved case, for example, without puzzling over its relationship to Brown v. Board of Education—and the long, tortured history of school racial desegregation between 1954 and 2007. Nor can one appreciate the SCOTUS’ blockbuster 1969 free speech ruling in the Tinker case without reflecting on a period of remarkable upheaval and civic engagement in the U.S. during the Civil Rights and Vietnam War eras.
What’s more, certain court cases tie in easily to present-day issues
Take Plyler v. Doe, the 1982 case in which the SCOTUS held that undocumented students have a right to attend public schools on an equal basis as children who are U.S. citizens. How does Plyler relate to the 2020 SCOTUS case involving undocumented students, Department of Homeland Security v. University of California? (That decision is expected in June.) And how does the SCOTUS’ 1999 decision in the Davis case provide a roadmap for how victims of sexual assault should be treated in today’s #MeToo era?
Importantly, teachers of every grade level can use court cases in the classroom. Recently, I watched Liz Kleinrock, an elementary teacher and instructional coach in Los Angeles, expertly introduce the story and concepts in the Tinker case to eight-year-olds. Even the youngest students can relate what happened to the child plaintiffs in school civil rights court cases, while older students can critically examine the legal standards and terminology used to decide the fate of students similar in age or background to themselves.
Certainly, bridging courts and the classroom is only a small piece of the puzzle
Civics education involves a much broader inquiry into how our society functions. And innovation in civics teaching is necessary in order to help students to harness their energies and current modes of communicating into civic action. But we could do far worse than to help students to explore the scope and limitations of their rights through court cases.
Through examination of legal texts, we can help students answer these critical questions: When and how can they speak out, and on what topics? What can the government do to control their behavior or pry into their lives? What freedoms do they have from government intrusion? Is it okay to disagree with the government (including judges and court opinions)? How can they engage the political and legal systems to change laws or policies with which they disagree? What does the law have to say about treating others fairly and respectfully regardless of their background or beliefs?
Encouraging these inquiries in the classroom is within our power
By doing so, we are providing students with the skills they need to enter the public sphere, and to demand—and even lead—the change they want to see. Our democracy depends on this kind of teaching—which, if you think about it, is one of the most important actions of civic engagement a person can take in these troubled times.
Robert Kim is a leading expert in education law and policy in the United States. He is the author of Elevating Equity and Justice: 10 U.S. Supreme Court Cases Every Teacher Should Know (Heinemann) and co-author of Education and the Law, 5th ed. and Legal Issues in Education: Rights and Responsibilities in U.S. Public Schools Today (West Academic). From 2011 through 2016, he served as a deputy assistant secretary in the U.S. Department of Education Office for Civil Rights. He was also a civil rights attorney at the American Civil Liberties Union and a policy analyst at the National Education Association.