What could we expect from a Justice Gorsuch on key education issues?



By 02/28/2017

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Jackie Kerstetter: 814-440-2299, jackie.kerstetter@educationnext.org, Education Next

What could we expect from a Justice Gorsuch on key education issues?
Arizona Supreme Court Justice Clint Bolick reviews the nominee’s major cases

February 24, 2017—Justices on the U.S. Supreme Court have or will soon hear cases involving the appropriate scope of services guaranteed by federal special-education law, government aid to religious institutions providing educational services, and restroom access for transgender students. If Judge Neil Gorsuch is confirmed for a seat on the court, how might he rule on these and other consequential education issues? In a new article for Education Next, Arizona Supreme Court Justice Clint Bolick examines over two dozen of Gorsuch’s major cases to uncover his key dispositions and clues to his future decisions.

Like the late Justice Antonin Scalia, Gorsuch is a textualist who strives to interpret the constitution and laws by their literal meaning, even if that leads to substantive outcomes with which they disagree. As he has explained, “a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.” Unlike Scalia, however, Gorsuch can disagree with his colleagues without being disagreeable, making it easier to agree in future cases, a quality that could make Gorsuch particularly effective on the Supreme Court.

Gorsuch has ruled on several education cases, touching on issues such as special education and school discipline, as well as others.

When it comes to IDEA, Gorsuch is moderate on scope. In Thompson v. R2-J School v. Luke P (2008), Gorsuch reversed a lower-court decision and declined a family’s request to have private-school tuition costs reimbursed by their local school district after they opted to enroll their child with severe autism in a residential program. His decision relied on a close reading of the Individuals with Disabilities Education Act (IDEA) observing, “we sympathize with Luke’s family …. Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it.”

On school discipline, Gorsuch balances individual rights and school authority. In M. v. Holmes (2016), Gorsuch dissented from a decision by a conservative colleague upholding the arrest and handcuffing of a seventh grader who disrupted a class by repeatedly generating fake burps. Gorsuch pointed to several state court rulings criminalizing conduct only where it substantially interfered with the actual functioning of the school, rather than momentarily diverting attention from classroom activity.

Gorsuch’s past rulings outside education also might shed light on how he could rule on upcoming education-related issues.

He has separation-of-powers concerns about unbridled federal agency power. The 1984 “Chevron doctrine” gives federal agencies, including the Department of Education, authority to reasonably interpret federal statues deemed ambiguous. In Gutierrez-Brizuela v. Lynch (2016), Gorsuch lambasted the doctrine for permitting “executive bureaucracies to swallow huge amounts of core judicial and legislative power…”

On religious issues, he leans conservative. Gorsuch tends to view the scope of the establishment clause narrowly and the free exercise clause broadly when it comes to religious issues. The Court followed similar logic when it upheld school vouchers in Zelman v. Simmons-Harris (2002) by a 5-4 vote, leaving them potentially subject to the Court’s changing composition.

Additional analyses, including of his rulings on cases covering other education issues, are available in “Gorsuch the Judicious Judge: A commonsense approach to education issues.” To receive an embargoed copy or speak with the author, please contact Jackie Kerstetter at jackie.kerstetter@educationnext.org. The article will be available Tuesday, February 28 on educationnext.org and will appear in the Summer 2017 issue of Education Next, available in print on May 24, 2017.

About the Author: Clint Bolick was appointed to the Arizona Supreme Court by Gov. Doug Ducey in January 2016. He previously litigated constitutional cases, including education issues.

About Education Next: Education Next is a scholarly journal committed to careful examination of evidence relating to school reform, published by the Hoover Institution at Stanford University and the Harvard Program on Education Policy and Governance at the Harvard Kennedy School. For more information, please visit educationnext.org.




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