Reading Neil Gorsuch’s opinions on education-related cases offers a few insights on how he might respond in future decisions.
President Trump’s nomination of Judge Neil Gorsuch to replace the late Justice Antonin Scalia has sparked many questions about how he will affect the court’s ideological balance. Will he be less conservative than Scalia, more so, or roughly the same? And, readers of Kappan may wonder, how will his appointment affect the outcomes of cases that bear upon K-12 education? For clues, we can examine a number of opinions — touching on religion, student discipline, employee speech, and special education — that he has written while serving on the 10th Circuit Court of Appeals.
In Green v. Haskell County Board of Commissioners, 574 F.3d 1235 (10th Cir. 2009), the 10th Circuit found the display of the Ten Commandments outside an Oklahoma county courthouse to be unconstitutional. Gorsuch, writing in dissent, criticized his colleagues’ reliance on the so-called Lemon test — after the historic Lemon v. Kurtzman (1971) decision — which proposed three criteria for deciding whether a state action oversteps the Establishment Clause: What is the purpose of the action, what is its effect, and to what extent does it “entangle” the state government with a religion? “Lemon has been criticized by many members of the court and a variety of legal scholars,” Gorsuch noted, arguing that its three criteria are hopelessly subjective, which “[leaves] the state of the law in establishment clause purgatory.”
On this, and perhaps on future cases involving religious expression within public schools, Gorsuch’s reasoning appears to be quite similar to that of Scalia. He, too, saw no constitutional violation in posting the Ten Commandments on public grounds and also believed the Lemon test should be abandoned.
In A.M. v. Holmes, 830F. 3d 1123 (10th Cir. 2016), the 10th Circuit Court granted qualified immunity to a school resource officer who used handcuffs to remove a student who was being disruptive by making burping noises in class. Gorsuch dissented, noting that police should not have been involved in a minor classroom disruption.
“If a 7th grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now-compliant 13-year-old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option, and they offer 94 pages explaining why they think that’s so. Respectfully, I remain unpersuaded,” Gorsuch wrote.
Justice Scalia’s opinions consistently favored school district authority over students. Thus, Gorsuch’s opinion on burping may suggest a more lenient approach to student misbehavior.
In Casey v. West Las Vegas Independent School District, 473 F.3d 1323 (10th Cir. 2007), Gorsuch wrote the opinion for a unanimous panel in a case brought by a school district superintendent who had been fired by her board. The superintendent, Casey, was concerned about possibly fraudulent enrollment data in the district’s Head Start program, and she took that information to the school board president. After the board president told her to drop the issue, Casey ordered a district employee to report the information to federal officials. Separately, she went to the state attorney general about her concerns that the school board had violated the state’s open meetings act.
Gorsuch wrote that the school district could dismiss Casey based on the Head Start issue but not the open meetings issue. He cited Garcetti v. Ceballos, 547 U.S. 410 (2006), in which the Supreme Court held that the First Amendment protects public employees when they speak on private issues as citizens but not when they speak as public employees about issues that are part of their official duties. Thus, in writing on the Head Start issue, he argued that the superintendent’s speech “is more akin to that of a senior executive acting pursuant to official duties than to that of an ordinary citizen speaking on . . . her own time.” But as regards Casey’s complaint to the attorney general, he added, “[W]hen a public employee speaks as a citizen on matters of public concern to outside entities despite the absence of any job-related reason to do so, the employer may not take retaliatory action.”
In short, Gorsuch drew a narrow but important distinction between the official and nonofficial contexts for Casey’s actions, which suggests that he might be more open to public employee’s free speech claims than was Scalia, who held a staunchly conservative view on the issue.
Gorsuch was not on the 10th Circuit panel that decided Endrew F. v. Douglas Cnty Sch. Dist., 798 F.3d 1329 (10th Cir. 2015), which is currently before the U.S. Supreme Court and which focuses on the level of services a district must provide to comply with the Individuals with Disabilities Education Act (IDEA)’s guarantee of an appropriate education. (Since Gorsuch was not on the 10th Circuit panel, he could participate in deciding the case at the Supreme Court.) However, Gorsuch has been on other 10th Circuit panels deciding special education cases, including Thompson R2-J School District, v. Luke, 540 F.3d 1143 (10th Cir. 2008), which involves issues similar to Endrew F.
In Thompson R2-J, the parents of Luke, an autistic child, alleged that the school district had not provided an appropriate education for their son as required by IDEA. Luke didn’t make sufficient educational progress, they argued, because he was unable to generalize the behaviors he learned at school to other environments — for example, while his behavior was controlled at school, he often became violent when he returned home. In the deciding opinion, which ruled in favor of the school district, Gorsuch held that Luke’s individualized education plan (IEP) had defined an appropriate set of goals and supports. “A school district,” he wrote, “is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student’s IEP goals.”
Another relevant case, Garcia v. Bd of Ed Albuquerque Public Schools, 520 F.3d 1116 (10th Cir. 2008), involves a special education student with poor school attendance and a school disciplinary and juvenile record. When she returned from incarceration, the school district enrolled her in a special education program but failed to write an IEP for her over the course of an entire semester. The court ruled in favor of the school district, finding that everything the student sought in litigation she could receive by re-enrolling in high school. In his opinion, Gorsuch notes that there are “potential pitfalls” in excusing “procedural violations of IDEA for students who fail to exhibit enthusiasm for school. After all, a student’s lack of enthusiasm . . . may be related to his or her disability. Such students are perhaps most in need of vigilant attention from their schools.” Nonetheless, his opinion upheld the lower court’s ruling.
Both of these opinions suggest a strict adherence to the letter of the IDEA, but they provide no insight into whether his views are likely to be consistent with Scalia’s pattern of interpreting the statute narrowly.
Upon reading these cases, three things stand out.
First, Gorsuch has a clear and concise writing style, which is hardly the norm in judicial writing. For example, the beginning of Gorsuch’s opinion in Kerns v. Bader, 663 F.3d 1173 (10th Cir. 2011) sounds more like the start of a detective novel than a court opinion: “On a summer evening in 2005, a sniper shot down a police helicopter over Albuquerque. When the authorities reached the scene, one man stood out. His name was Jason Kerns.”
Second, his opinions pay clear deference to earlier judicial authority, carefully building on or distinguishing the facts and law.
Third, as a conservative replacement for Scalia, Gorsuch merely resets the status quo from before Scalia’s death. But if Justice Kennedy (age 80), Ginsburg (83), or Breyer (78) leaves the court during the Trump presidency, Trump will likely be able to cement a conservative court for years to come.
JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is a professor at the University of Wisconsin-Madison.
Originally published in April 2017 Phi Delta Kappan 98 (7), 76-77. © 2017 Phi Delta Kappa International. All rights reserved.