The next Scalia?

Reading Neil Gorsuch’s opinions on education-related cases offers a few insights on how he might respond in future decisions.


In this season of presidential appointments, we’ve all been watching as Congress and others have probed the backgrounds of candidates to get some idea about how these individuals will serve this country. Any presidential appointment is important, but few have the far-reaching influence of a single Supreme Court nominee.

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 — now divided between four conservatives and four liberals. Will he be less conservative than Scalia, more so, or roughly the same? How is he likely to change the court’s dynamics? And, readers of Kappan may wonder, how will his appointment affect the outcomes of cases that bear upon K-12 education?

Gorsuch has a track record from his service on the 10th Circuit Court of Appeals that we can examine for clues, including opinions on cases involving religion in the public square, student discipline, employee speech, and special education.


How Gorsuch views issues related to the establishment of religion could bear upon any future cases involving religious expression within public schools. For insight on that, consider two dissenting opinions he wrote while serving on the 10th Circuit Court of Appeals.

In one, American Atheists, Inc. v. Davenport, 637 F. 3d 1095 (10th Cir. 2010), Gorsuch argued that a display of roadside memorial crosses should have been found constitutional under the establishment clause. In the other, he took issue with the majority opinion in Green v. Haskell County Board of Commissioners, 574 F.3d 1235 (10th Cir. 2009), which found the display of the Ten Commandments outside an Oklahoma county courthouse to be unconstitutional. Specifically, Gorsuch criticized his colleagues’ reliance on the so-called Lemon test from the historic Lemon v. Kurtzman (1971) decision. The Lemon test proposed three criteria for deciding whether a state action favors one religion over others: What is its purpose, 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, Gorsuch’s reasoning appears to be quite similar to that of Scalia, who also argued there was no constitutional violation in the posting of the Ten Commandments on public grounds. He, too, believed the Lemon test should be abandoned.

Student discipline

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.

Employee speech

In Casey v. West Las Vegas Independent School District, 473 F.3d 1323 (10th Cir. 2007), Gorsuch wrote the opinion for a unanimous panel concerning a First Amendment free speech and retaliatory discharge claim from a school district superintendent. Casey, the superintendent, was concerned about possibly fraudulent enrollment data in the district’s Head Start program, and she took that information to the school board president. When the school board president told her to drop the issue, she ordered a school district employee to report the information to federal officials. Separately, Casey went to the state attorney general about her concerns that school board meetings 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 drew this distinction from 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. About the Head Start issue, Gorsuch wrote:

We do not mean to suggest [the superintendent’s] speech regarding the Head Start program did not relate to a matter of public concern. . . . Far from it. As we have held many times, speech reporting the illicit or improper activities of a government entity or its agents is obviously a matter of great public import. We simply hold 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.

Regarding the open meetings, he wrote:

[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.

Gorsuch saw that, as superintendent, Casey was responsible for supervising and managing Head Start. But her official duties did not include managing school board notices and meetings. Because of that distinction, the board could fire her for her actions regarding Head Start but not because of her actions regarding open meetings. Gorsuch drew a very narrow distinction, something that might indicate an openness to public employee speech, marking a difference from the staunchly conservative view of Scalia.

Special education

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 Supreme Court. Endrew 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 he was not on the earlier panel, there is a possibility that he could participate in deciding the case at the Supreme Court level.) However, Gorsuch has been on a number of 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. The parents transferred Luke to a private residential setting and sought reimbursement from the school district.

In this case, Gorsuch wrote the opinion, which ruled in favor of the school district. He held that Luke’s individualized education plan had been designed for him to make educational progress, including goals focusing on generalizing skills outside the school environment. “A school district,” he held, “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 case that Gorsuch heard, Garcia v. Bd of Ed Albuquerque Public Schools, 520 F.3d 1116 (10th Cir. 2008), involves an unfortunate string of events: Myisha was a special education student with poor school attendance and a school disciplinary and juvenile record. The school district enrolled Myisha in a special education program but failed to write an IEP for her for an entire semester after she returned from incarceration. The federal district court held for the school district over the parent’s claims that she should be given compensatory education, finding that everything she sought in litigation she could receive by re-enrolling in high school.

In his opinion, Gorsuch grapples with the facts of the case and their implications for student equity. “[W]e acknowledge potential pitfalls in deeming harmless 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,” he wrote. Nonetheless, his opinion upheld the lower court’s ruling, denying compensatory education for the student.

Both of these opinions suggest an adherence to the letter of the IDEA. Less clear is whether they can also be seen as consistent with Scalia’s pattern of interpreting the statute narrowly.

Three takeaways

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 Circuit Court of Appeals 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 Kennedy (age 80), Ginsburg (83), or Breyer (78) leave the Court during the Trump presidency, Trump would be able to cement a conservative court for years to come.



JULIE UNDERWOOD ( is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

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