Creating Technology for Social Change

What’s at stake? Why civic matters to me, and to you

Liveblog of the third panel of the conference Civics Education: Why it Matters to Democracy, Society and You at Harvard Law School, April 1, 2013. Willow Brugh contributed to these notes.

PANEL 3: What’s at stake? Why civic matters to me, and to you


  • Justice Sandra Day O’Connor (former Associate Justice, Supreme Court of the United States)
  • Justice David Souter (former Associate Justice, Supreme Court of the United States)
  • Judge Kenneth Starr (President, Baylor University)
  • Larry Tribe (Professor, Harvard Law School)
  • Moderator: Martha Minow (Dean, Harvard Law School)

MM: The bet of the democracy is that we can govern ourselves. The risk is that we will not be prepared to do so. [Introduces Sandra Day O’Connor] She has dedicated herself most recently to looking at the critical role of education in democracy. Why have you decided to make this such an important focus of your attention?

SDO: I remember when I was a grade school student, I grew up on a cattle ranch in Arizona. I went to school in El Paso. I lived with a grandmother who was not highly educated but supported keeping me in school. I remember having to take civics for several years in El Paso schools. And it was boring. I thought it was important to have a class in civics but it could be a lot more interesting. It does help teach our young people how our government works.

MM: [Introduces Justice David Souter] Check out his 2010 commencement speech to HLS. He conveys the hard work of promoting values. Why does the topic of civic engagement matter to you so much?

DS: I’ve come by stages to the answer. Two disclaimers: 1) We are talking about civics, but you can’t have civics without history. I might just as well be making the case for history. 2) I don’t mean to take a stand in the pedagogy controversy — I don’t know the position to strike between participatory and rote learning. The one thing I’ll say is if you are going to test in math and reading you better test in civics or it’s going to be the poor child of the curriculum.

Justices O’Connor and Breyer convened a series of conferences about the independence of the courts. The judiciary was under attack at the time. The first thing we learned there was about the degree of civic illiteracy. Only about a third of the people in the US can name the three branches of government. Without some knowledge of the structure, some constitutional knowledge, values like the value of the independent judiciary make no sense. Independent from what?

The first point of focus was that without the bedrock grounding in a lot of fundamentals my generation learned as kids, constitutional values will make no sense because there is no context for them. Second stage in my own thinking has come as a part of the call for constitutional change. All corners are calling for amendments on Roe v Wade, Citizens United Campaign limitation, and a response to endemic problem of disparity between Electoral College and popular vote. Someone who has no sense of what we have to start with is in no position to make any sort of critical judgment on how we are to change and if we are to change, if there is no foundation for constitutional thinking. We are being asked to engage in this thinking. None of this may reach a proposed amendment, but who knows.

So I guess the second point is simply the foundation for critical judgment on the part of citizens. I’ve come to a third or umbrella position. I’ll warn you right now based on remarks of previous folks, starting with Howard Gardner and his fourth point. The American Constitutional system is in effect a constant exercise in balancing precariously two fundamental tendencies in American societies and political orgs — the tendency to fly apart into individual interest and history, and individual groups, and the tendency to pull together. I could spend a long time this morning cataloging the growing force of the centripetal differences that are pulling us apart. The US is a conglomeration of those tendencies. We don’t have a national religion or private culture (as opposed to political culture). We are an amalgamation and patchwork, a nation of immigrants. People remember where they came from, whether they look back 1 or 14 generations. Disuniting tendency is built into the very fabric of the US, few want it to go away (including myself). It’s no coincidence that Emerson was an American. With Emersonian individuality and self-reliance, there is an enviable atomistic tendency in America.

The class divide is growing larger. And the possibility of bridging that class divide is shrinking. Spread of wealth disparity is greater than it’s been for a century. It’s a fact of life that social mobility in the EU is greater. Parents here cannot assume their children will be better off than they were.

We have heard the atomistic, divisive tendency in the news media. You can cherry-pick the news you want in the device in your hand. You (the country) are not even exposed to the breadth of traditional newspapers. There is a good foundation for cynicism toward the processes of government. Most people look at it as a clash between two big pools of money. What we have got pulling on the other side is adherence to a constitution. The American Constitution is not simply a structure, though it is that, it’s not just a Bill of Rights, but it’s a value system. Howard Gardner’s first point is that we need to teach that there is a value system. And the one common value system we can claim in the Constitution. That value system is the counterforce to the divisive forces at work in our country. How anyone can assume how that value system can survive without being known by the overwhelming majority of the population is beyond me.

So what is driving me is the essential nature of a substantially ignored value system. Without it there is no chance of overcoming the polarization that everyone decries. Because it is only in the acceptance of that common value system that there is something to hold us together.

MM: [Introduces Judge Kenneth Starr] I have come to see Ken Starr as a teacher. He was Dean of Pepperdine Law School before becoming President of Baylor University. He has spent many years working with underprivileged kids. Why did you think it was important enough to come?

KS: My epiphany began in the public schools of Texas, but really came about when I was asked to argue the flag burning case as Solicitor General in the 1980s. I boldly but unsuccessfully argued the case.

There seems to me to be inadequate appreciation on the part of the American people of the culture of liberty. We have NYTimes versus Sullivan. We should welcome debate, and it should be robust and open-ended. Something that Justice O’Connor once wrote that we should be reminded of is that conversation of the debate makes us uncomfortable, and that is the nature of democracy; there’s nothing wrong with it. Constitution law talks about the educational system. I.e. what is an erosion of values in schools? There was Tinker vs Des Moines school district. There are special circumstances in school; it’s a special environment, which means many liberties that exist elsewhere do not have to exist in the schools.

I came to volunteer in DC and found the lack of appreciation that the kids have rights, and that the baseline for them is also liberty. My time in DC taught me that there is inadequate appreciation for the structural foundation in the Constitution. Putnam’s erosion of social capital in Bowling Alone is a metaphor of our life together as a people: we do things alone. Atomism can be good, but we still need community values.

Service-oriented education: the more we have purposefully engaged students, the more we see people engaged in a powerful way. There I think iCivics is genius. I’ve been in the classrooms where iCivics is taught, where 90% of students in the school are below the poverty rate. Those high school students were really engaged in a deep way. They loved being President or a Justice on the court (in the games). It’s a platform — a great starting point, making up for what has not happened at home. Not everyone gets to go to a townhall meeting. Students who don’t have that, how do we make up for it?

MM: What are the possibilities of combining online education with face-to-face?

KS: The need for professional development — I’ve seen that personally in Central Texas — Teachers do not have time to do it. iCivics works best in places where the teachers have been trained.

MM: [Introduces Laurence Tribe, Harvard University Professor of Constitutional Law] There are “matter maps,” Rebecca Goldstein’s idea that we all carry around a map of what matters to us. Why did you agree to come here today?

LT: Partly because of you — being a great friend and great dean. I admire the other panelists, who have each been remarkable public servants. I was thinking about SDO’s remarks on the boringness of civics education. How do you make something so living, so dead?

I grew up as a little Jewish kid in Shanghai. My father was imprisoned by the Chinese because he was becoming an American citizen. His family had fled to China from the Nazis because China was one of the only places inviting the Jews. I was five and a half when I came to the states. I only spoke Russian. I was amazed by what a remarkable country it was. What made it tick? Civics would be so interesting! Nope, so dead. All the years I’ve been teaching (over 40 years), it has come to life.

It’s easy to become cynical of our systems, the polarization and atomization. The Supreme Court split along ideological lines. A hopeful presidency has been disappointing to so many. What can we not be cynical about? I’ve found many answers in teaching. Some had nothing to do with teaching constitutional law, but came from watching the country: how people come together in times of crisis, even though they have never heard of the independence of the judiciary and wouldn’t know the values of the Constitution if it was put in their faces. Some of our best tendencies cannot be captured in one place. Teaching the Constitution: I disagree with DS, and would argue it doesn’t house one set of values, but a framework in which different values can be housed, some of which are antithetical to what some people think the Constitution is about.

One of my most remarkable students, President Obama, would say that what’s most remarkable about our Constitution was its capacity to evolve, change, grow “in order to form a more perfect union.” It’s in the process of growth that we can overcome that sense of jadedness.

Let me talk a little bit more about teaching because it has brought more to me about what civic engagement can be. My course “Thinking about the Constitution” illustrates the cases of how to keep government and religious institutions somewhat separate (though not religion and politics separate). Government power cannot be delegated to religious bodies. I had a student that replied, “How come I can’t get a beer with my lunch at Grendel’s Den if you can’t give government power to religious bodies?” Turns out the reason Grendel’s doesn’t have a license is because Massachusetts had a law where churches can veto any place getting a liquor license within 500 feet. Is that constitutional?

I ended up working with this student and a colleague of mine Stephen Breyer [yes, that Stephen Breyer]. And we brought a lawsuit against the alcohol control board in Massachusetts. By giving churches the right to veto power over liquor licenses, it infringed on the establishment clause of the Constitution. We won 8:1, SDO wasn’t the one. Now I can get a free beer there any time. Which is good, because I did it pro-bono, and am now being paid back. The undergraduates were impressed because this started by a lesson in class. The unintended lesson that civic engagement matters. You can make a change in the country by asking a question.

Another one was a lesson I learned in a 5th grade class. I was the show and tell that an 11-year-old child of some friends of mine brought to class. I talked to these kids about the Constitution. They had rules for class, and we worked on changing them. During a 90 minute dialog, we explored the relationship between the city laws, state constitution, federal, the rules of school, rules of town, and for their classroom. These kids were astonishing, and were perfectly normal kids. They changed how I thought about teaching constitutional law. Engaging kids in the process of thinking about constitutional law can be a profound experience.

MM: How can we inspire kids to be engaged in politics when they have premature cynicism? They have a reason to be cynical because the system of government doesn’t always live up to its ideals. There are experiences of unfairness that many of them live with. These are features of daily life that may lead people to cynical about the system. How do we square that reality with the hopes that we want to inspire?

SDO: All you have to do is get students involved in some local issue that raises a constitutional issue. Let them get involved, bring a petition before a public body, it gets them turned on right away.

LT: There are group of people here trying to get the vote for 17 year olds.

KS: I would do a shoutout to iCivics. Watch the reactions of the students; it works brilliantly for fourth graders. They know a lot and get engaged. It’s an antidote for cynicism. [Referencing the last panel:] Everyone was busy during the trip to DC, but then saw someone on the street! I had one of those great moments of meeting my Congressman when I was a young person. Let our students see a living breathing judge or selectman!

The final thing is leadership coupled with creativity. Resources to go out and bring those resources to them. Get the mayor in if it’s possible. Interact with those students. Be as creative as you can. Get a person that ran for office and won, or person that was appointed.

Universities have a role. I am at a university [Baylor] where every student has to take a course on the Constitution to graduate from the university. Governors point to this course, saying it was a great course. It serves as a catalyst.

DS: Not much left to say! Two great answers, I agree with them both — I should go into politics! Give young people an experience that is not productive to cynicism. That’s how I got introduced to government. My faith in government goes back to a quip by Joseph Beale: “Do you believe in infant baptism?” “Yeah, I’ve seen it done!” That’s how I felt about government.

When I was a kid, I used to go to the town meeting. Just watch it being done. You had a room full of people who accepted the proposition that “it’s up to us.” They got it done. Not everyone can go, but if school governments can give an example of it, that’s one answer. The other is something KS said, let them learn something about other towns. Teach some history. We have been here before. We will be here again. Western Civilization did not stop at lone moments.

I’m not here to tell anyone how to teach history here today. My sense of pedagogy is outdated. But if you teach it, you will realize that we have been here before. The norm is in fact something that does not create cynicism.

MM: Citing Howard Gardner, isn’t it important to meet the kids where they are right now? When Facebook changes its default settings on privacy people get unhappy. Everyone knows something about new technology so that might be one place to meet them where they are now, as a civic intervention.

[Missed name]: Over the past 10 years, I’ve been a special education teacher in Massachusetts, after I couldn’t find a job teaching history. What is my responsibility to teaching civics to new Americans? Is it fair to expect the same level of knowledge of the Constitution to folks that are new here?

DS: I don’t care if it’s fair or not. Give them an opportunity to learn something. Most people on the street couldn’t pass the test for naturalization in the US. I recently attended a Naturalization ceremony. I told them, “your job now is to set a better example for natural born citizens.”

KS: I think that is an example, even though its coercive like serving on a jury, it’s also a privilege. Most people say that they did not want to serve on the jury, they tried to get out of it, but were ultimately very happy to have been called to service on the jury. Sometimes you need a little bit of coercive pressure. I think that is a unifying experience to pass that test. We want you to be informed, in fact more informed than the average citizen. I think we need to find, even in our polarization and diversity, the ability to be come together as one (E Pluribus Unum). I think we have very powerful unifying forces.

MM: My immigrant grandmother found serving on a jury to be a huge privilege.

DS: I used to be a trial judge. What we are talking about is that it’s a universal experience: people really appreciate serving on a jury.

LT: As a Harvard Law professor, I’ve never gotten to serve on a jury.

Julianne, HGSE alumna: We’ve focused on civics in the context of American democracy. What about the issue of global citizenship?

SDO: You are asking a very different question. We have no binding constitution to be a citizen of the world or a standardized test for global citizenship.

KS: That said, I wish we all had to read the Universal Declaration of Human Rights. I serve as an advisor to a group that works on religious freedom around the world. In Pakistan, blasphemy is punishable by death. The values of freedom that I am lifting up are in the UDHR: freedom of religion and conscience. The ability to change your religion is in the UDHR.

MM: Harvard’s Public Health school gives out UDHR to every student. SDO is right to say that it’s different. I think that with the rise of the internet and our changing relationship to geography means future generations will feel different. Key difference: there isn’t a “system” to learn.

Willow Brugh, MIT Center for Civic Media: I am excited to learn about new possibilities for civic education. But without the ability to act on that knowledge you are just building more cynicism into that space. Your experiences are wonderful but come from a place of privilege.

DS: I’m not sure I accept the dichotomy between the privilege to act and privilege to know. There is research between the level of education and the level of civic participation. I have looked at the voting records for prior elections. Look for example at the voting stats from the last election, you will find that the participation rate from those with a college education and those without is significantly different. A one third to two-thirds disparity. It’s big. That correlation is also mirrored in proven surveys of civic knowledge. The 70s stopped teaching civics, boring as it was. It took a college degree or the experience of college, exposure to knowledge there, to get people up to the level of civic knowledge that once had been universal. Surveys in the early 90s shows you how bad it was. High school students had same level of knowledge as a high-school drop out when I was a kid.

The only way to close that gap is to convey that information to the percentage of people that do not go to college. Boosting the knowledge boosts the experience. Everyone may not be as lucky as those sitting here, but the baseline can be the same as ours. Get the literacy up and get the participation level up too.

Meira Levinson: How each of you understands the Constitution from how the average person or even a teacher understands the Constitution is different. And each of you might even have different opinions about how to teach the Constitution. Once we get past the superficial level of what we stand for as a country, how do we promote a civic education which wrestles with these things which divide us?