Can courts repair the crumbling foundation of good citizenship? An examination of potential legal challenges to social studies cutbacks in public schools.

• Author: Savit, Eli

In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and litigation strategies that could be used to compel social studies instruction in public schools. This Note contends that the federal judiciary's civic conception of education leaves the door slightly ajar for a Fourteenth Amendment challenge on behalf of social studies-deprived students, but the Supreme Court's refusal in San Antonio v. Rodriguez to recognize education as a fundamental right leaves potential federal challenges with substantial barriers to success. A state-law litigation strategy might prove more effective. In many states, constitutional education provisions or education-related judicial precedent strongly imply that public schools have a duty to provide students with social studies. States' education standards or the history surrounding the adoption of education provisions may also suggest that a constitutionally adequate education necessarily includes social studies instruction. Thus, although challenges to schools' curricular decisions are not sure to succeed, courts present a potential venue in which social studies-deprived students may be able to vindicate a right to civic education.

TABLE OF CONTENTS INTRODUCTION I. POTENTIAL FEDERAL LEGAL CHALLENGES TO A DEPRIVATION OF SOCIAL STUDIES A. The Federal Judiciary's Civic Framing of Education Cases B. Levels-of-Scrutiny Analysis: A Barrier to Equal Protection Challenges to Social Studies Cutbacks C. A Constitutionally Protected Quantum of Civic Education? II. POTENTIAL STATE LEGAL CHALLENGES TO a DEPRIVATION OF SOCIAL STUDIES A. The Civic Dimensions of State Education Provisions B. Analyzing History so Students Can, Too: A Litigation Strategy Based on Originalist Readings of State Education Provisions C. Applying Learning Standards Against the State: A Theoretical Expansion of the State Definition of "Education" CONCLUSION INTRODUCTION

Although Sacramento's Martin Luther King Jr. Junior High (M.L.K.) bears the name of a civil rights titan, a number of its students are barred from taking classes dedicated to such topics as slavery, the Bill of Rights, and the Civil Rights Act. In fact, many students at M.L.K. are forbidden from taking classes that include explicit instruction about their school's namesake. Of course, if curiosity gets the best of them, every one of the school's students is presumably free to check out a biography of Dr. Martin Luther King from the public library, watch a History Channel show on the civil rights movement, or look up the Bill of Rights on Wikipedia. But while students are presumably allowed to study history, civics, and government on their own time, about 125 low-performing M.L.K. students are barred from taking any formal classes dedicated to these subjects. (1) Indeed, while they are inside the schoolhouse gates, the school's lowest-performing students are prohibited from taking any subjects except reading, math, and gym. (2)

M.L.K.'s de-emphasis of civic education is hardly anomalous. In the wake of the federal No Child Left Behind law--which largely ties federal school funding to students' scores on reading and math tests (3)--36 percent of American school districts reported reducing or eliminating civics, history, economics and government instruction (hereinafter collectively referred to as "social studies"). (4) Districts containing academically struggling schools that, like M.L.K., serve predominantly black, Hispanic, or lower-income populations (5) are apparently most likely to cut social studies: districts with high minority or socioeconomic populations are most likely to contain schools that are "designated for improvement" under No Child Left Behind, (6) and over half of the school districts that contain a school "designated for improvement" under No Child Left Behind reported reducing or eliminating social studies instruction. (7) Of course, an increased emphasis on reading and math--and a corresponding de-emphasis of other subjects--is in some ways an inevitable response to No Child Left Behind. No Child Left Behind requires states to impose a series of consequences on schools whose students fail to make adequate progress towards math and reading proficiency, (8) and it is only natural that schools and districts would increase instruction time allotted to these subjects.

But No Child Left Behind is not solely responsible for the decline in civic education. In fact, schools' commitment to social studies has steadily eroded since the 1960s, (9) when students were commonly required to take as many as three courses in civics, democracy, and government. (10) The reasons that schools de-emphasized social studies in the pre-No Child Left Behind era are unclear, but at least one commentator suggests that schools feared criticism or litigation if teachers dared broach politically or historically controversial subjects. (11)

Given the state of social studies in America, it is perhaps predictable that many American students fail to meet grade-appropriate standards in civics, history, and government. According to the 2006 National Assessment of Educational Progress (N.A.E.P) report, only 24 percent of American fourth graders, 22 percent of eighth graders, and 27 percent of twelfth graders scored at or above a "proficient" level on a federally administered civics assessment. (12) A 2008 study by the educational advocacy group Common Core concluded that "too many young Americans do not possess ... basic knowledge ... about U.S. history and culture." (13) Fewer than half of the American seventeen-year-olds questioned by Common Core could place the Civil War in the proper half-century, nearly a quarter could not identify Adolf Hitler, and a third did not know that the Bill of Rights guarantees freedom of speech and religion. (14) Studies also reveal a social studies achievement gap: African American and Hispanic students consistently perform worse than their white counterparts on civics tests; middle- and upper-income students consistently outperform their lower-income peers. (15) Unsurprisingly, the social studies achievement gap manifests itself among adults as well. One comprehensive survey of adults showed that on each of sixty-eight questions testing respondents' civic and political knowledge "whites are more informed than blacks; those with higher incomes are more informed than those with lower incomes; and older citizens are more informed than younger ones." (16)

The de-emphasis of social studies in American schools has been widely criticized on both pedagogical and policy grounds. (17) Professor E.D. Hirsch, for example, argues that schools' focus on reading and writing at the expense of social studies actually hinders students' reading comprehension. (18) On Professor Hirsch's account, literacy requires "domain-specific" background knowledge over and above the meaning of words. (19) Without knowing the rules of baseball, for example, an individual can never make sense of a sentence that reads "Jones sacrificed and knocked in a run," even if that person understands the literal meaning of the words on the page. (20) And just as readers of the sports page must have an adequate understanding of baseball rules, Professor Hirsch argues that a literate individual in America must have an adequate understanding of history, current events, and politics, because background knowledge in those areas is often "taken for granted in ... public orations, in serious radio and TV, [and] in books and magazines and newspapers addressed to a general audience." (21) Professor Hirsch notes that American schools' de-emphasis of content-based instruction leaves many graduates with insufficient background knowledge to understand even basic newspaper articles, a fact that has "momentous implications for education, and for democracy as well." (22) Professor Hirsch is hardly alone in arguing that social studies cutbacks threaten substantial damage to American democracy. (23) The Center for Civic Education, a group dedicated to reviving social studies instruction, cites a study showing that students who receive explicit instruction in civic education are more likely to vote than students who do not. (24) Another study shows that students who receive explicit civic education are significantly more likely to "take personal responsibility for making things better in their community and nation." (25) And former Supreme Court Justice Sandra Day O'Connor has sharply criticized schools' deemphasis of social studies, arguing that, in the face of efforts to politicize the judiciary, civic instruction on the structure of American government is the "only long-term solution to preserving an independent judiciary and ... a robust constitutional democracy." (26)

Although no major commentators advocate petitioning the courts to impose minimum standards for a civic education, a judicial challenge on behalf of students who have been deprived of social studies is not obviously unworkable. The American judiciary has a long history of determining schools' obligations to students and the scope of students' educational rights. (27) More importantly, because many school districts apparently feel pressured by No Child Left Behind to de-emphasize civic education, a judicial order may be necessary to compel social studies instruction. Even the best laid plans for educational reform are likely to fall flat without some counterweight to the current incentives that lead schools to cut social studies in the first place, and a legislative counterweight does not appear to be forthcoming. In the political realm, much of the recent focus on education reform has been on fixing funding shortfalls, expanding early childhood education, and ensuring high teacher quality, not on...