CIVIC EDUCATION AND CIVIL DISCOURSE: A ROLE FOR COURTS, JUDGES, AND LAWYERS.

AuthorKelso, Kari C.

The judiciary has an important role to play in civic education... . I ask my judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach. (1) An overall reduction in the public's knowledge and understanding of basic principles of government and democracy has led to a virtual collapse in practices of civil discourse over the last several decades. The country needs a broad, sustained program targeted at improving civics education and civil discourse. Courts and judges, working collaboratively with lawyers, law schools, and K-12 educators, will play an important part in that education program because of their unique, non-partisan role in our tripartite system of government.

During the first decade of this century, Justices Anthony M. Kennedy and Sandra Day O'Connor championed civics education initiatives. Justice Kennedy's 2002 "Dialogue on Freedom" (2) and Justice O'Connor's 2009 initiative to establish "iCivics" (3) showed what can be accomplished with committed leadership, a little organization, and a few resources. More recently, Justice Sonia Sotomayor has been taking on the challenge through personal visits around the country, books that target a young readership, and, during the pandemic, Zoom-based meetings from her home and office with hundreds of students at a time. (4)

But much more needs to be done. The lack of civics knowledge among citizens runs deep and broad. A 2016 survey by the Annenberg Public Policy Center revealed that "[o]nly a quarter of Americans can name all three branches of government, the poorest showing on that question in a half-dozen years... . Nearly a third of Americans cannot name any of the three branches of government." (5) Commenting on this survey, Kathleen Hall Jamieson, director of the Annenberg Public Policy Center, observed that "[t]hose unfamiliar with our three branches of government can't understand the importance of checks and balances and an independent judiciary... . Lack of basic civics knowledge is worrisome and an argument for an increased focus on civics education in the schools." (6)

Courts, judges, lawyers, and educators around the country have been exploring the contours of greater judicial involvement in civics education for many years by, among other things, creating and offering a wide variety of programs, curricular resources, and experiential learning targeting K-12 students, including a wealth of online materials, visits by students to courthouses and courtrooms, moot court programs, essay and art contests, and visits by judges and courts to school sites. The processes courts and judges use to conduct hearings and resolve disputes can also serve as models for civil discourse including the recognition and practice of long-standing principles of due process that include the rights to be heard, present evidence and confront one's accusers, and receive a reasoned explanation for a final decision.

Now more than ever, courts, judges, lawyers, and educators need to step forward to help turn our country toward a more civil, civics discourse informed by knowledge and trust in democratic principles. Moving beyond purely local, individually led efforts to a better organized, more systematically resourced, national initiative will increase civics education. (7)

In Part I of this paper, we initially describe and recommend the methods for teaching and restoring democratic principles. These activities include restoring faith in fair and free elections, the importance of the protection of civil rights, and respect for the rule of law. In Part II, we discuss the process of restoring civil discourse and provide recommendations for a lasting solution to change the cultural norms for political speech and public discourse so that these forms of communication become more civil in nature. Then in Part III, we detail the role of courts, judges, and lawyers in changing and improving public discourse. We conclude with our recommendations for a call to action among and between public and private entities to educate and improve public discourse.

I. DEMOCRATIC PRINCIPLES MUST BE TAUGHT AND TRUST RESTORED

During his many appearances and speeches in support of civic education, a topic he championed for decades, Justice Anthony M. Kennedy regularly reminded audiences that democracy must be learned by each generation. (8) Justice Sandra Day O'Connor, another great leader in civic education, joined in this call. (9) Democracy is something that we consciously must teach each generation because principles of democracy are not self-evident: we are not born knowing principles of democracy; these principles are not something that naturally develops out of the ordinary practices of childrearing; they are not something that human beings are even naturally attuned to. If history is a reliable guide, when acting as a large group, human beings seem to be peculiarly susceptible to charismatic, authoritarian leadership, not democracy. Historically, democracy is very much the exception.

The "problem" with democracy, particularly in a country where there is a close split between competing viewpoints, is that it requires a large number of individuals on the losing side of an election to go along with the majority for at least several years at a time based upon a foundational belief and trust in the concept and reality of majority rule and a belief that minority voices are at least being heard. "Go along" does not mean always accepting and agreeing with the opposition, of course; political opposition can and should continue. But going along means there is enough understanding and trust in democratic principles to hold the country together and to avoid insurrections or worse.

There are many lists of democratic principles. For our purposes, there is no need to canvass all of the lists to produce the best list of principles. Almost any of the lists will do. Stanford Professor Larry Diamond's list seems to communicate the essential elements of a democratic system, at least as we practice it in the United States:

* Regular, free, and fair elections to select the government's leaders;

* Active participation by a substantial portion of the population;

* Protection of basic human and civil rights; and

* Respect for the rule of law, fairly and equally applied to all. (10)

Democracy can thrive and survive only if overwhelming majorities understand these essential elements and trust that these elements accurately describe how democracy is practiced in the United States. As Judge Robert Katzmann said at the Ninth Circuit Court of Appeals' 2017 annual Judicial Conference, "How can we expect our people to support and defend the constitution when they know so little about it?" (11)

Unfortunately, a range of surveys over the years have consistently shown that Americans generally have a poor understanding of democratic principles, and that lack of understanding is eroding public trust in democratic institutions.

  1. Regular, Free, and Fair Elections

    Tens of millions of Americans do not trust the election system that resulted in Vice President Joe Biden being declared President of the United States. Poll results published by Quinnipiac University on January 11, 2021, indicated that "37 percent of voters do believe there was widespread voter fraud." (12) This disbelief in the election system is clearly partisan in nature. The same poll reported that 73% of Republicans believed there was widespread voter fraud while 93% of Democrats said there was no widespread voter fraud. (13) The partisan nature of the results in no way minimizes the enormity of the challenge facing the country.

    Put yourself in the shoes of one of those 37% of voters who believes there was widespread fraud. One of those voters explained his frustration as follows:

    I can't just sit back and say, "OK, I'll just go back to watching football,'' said Daniel Scheerer, 43, a fuel truck driver in Grand Junction, Colo., who went to the rally in Washington [on Jan. 6], but said he did not go inside the Capitol and had nothing to do with those who did. He said he did not condone those who were violent but believed that the news media had "totally skewed" the event, obscuring what he saw as the real story of the day--the people's protest against election fraud. "If we tolerate a fraudulent election, I believe we cease to have a republic," he said. "We turn into a totalitarian state." (14) For our purposes, it does not really matter that there may be no evidence of widespread, systematic fraud. Nor does it matter that much more than a majority believes there was no fraud. The problem is that a very significant portion of the voting public, and a large percentage of voters of one party, believe that there was widespread fraud. Mr. Scheerer's concern that the toleration of fraudulent elections is a harbinger of totalitarianism is not irrational, and his belief that we would cease to have a republic is fully consistent with Professor Diamond's inclusion of free and fair elections as a critical component of our democracy.

    A much smaller percentage of voters who believe there was widespread fraud also believe in using violent means as a response. (15) This smaller group appears to be more closely aligned with various extremist groups which have been communicating amongst themselves and railing against government and the "deep state" for over thirty years. (16)

    The circumstances described above raise a question for our readers:

    What can courts, judges, and lawyers do to help restore understanding and trust in our system of regular, free, and fair elections? B. Active Participation by the Population

    In the most recent election, over 158 million people of the 239 million who were eligible to vote cast their ballots. That represents over 66% of eligible voters, the highest percentage turnout for a presidential election in over 100 years. (17) This metric suggests a great...

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