Published Online: June 5, 2009
Published in Print: June 10, 2009, as School Rulings By Sotomayor Eyed Carefully

School Rulings by Sotomayor Eyed Carefully

During her 17 years on the federal bench, Judge Sonia Sotomayor has handled a relatively small number of cases dealing directly with K-12 education. But those disputes—touching on such issues as racial discrimination, special education, and student freedom of expression—offer clues to the direction she might take on school matters if she joins the U.S. Supreme Court.

Consider the following decisions from the high court nominee’s time on the U.S. Court of Appeals for the 2nd Circuit, in New York City, where she has served since 1998.

In Gant v. Wallingford Board of Education (1999), Judge Sotomayor wrote a partial dissent from two fellow judges in a case alleging racial discrimination involving a black student in a Connecticut elementary school. Although she agreed with the panel’s rejection of a claim that the school had acted with “deliberate indifference” to racial hostility the student allegedly encountered at school, she concluded that the student’s family had grounds for proceeding with a claim that their son’s midyear demotion from 1st grade to kindergarten was driven by race.

Judge sonia sotomayor’s education rulings are eyed.
—Charles Dharapak/AP

President Barack Obama’s pick for the high court voted in 2006 against a New York school district in a special education case that resembles one now awaiting final action by the Supreme Court. She joined the unanimous ruling, in Frank G. v. Board of Education of Hyde Park, that found that a family could be reimbursed for private school tuition for a child with disabilities even if the child had never received such services from the home district.

And in May 2008, she signed on to a school ruling that has dismayed some First Amendment advocates. In Doninger v. NiehoffRequires Adobe Acrobat Reader, the appeals court concluded that a Connecticut student’s off-campus blog remarks, described in the ruling as “vulgar and misleading,” had created a “forseeable risk of substantial disruption” at the student’s high school. As a result, a 2nd Circuit panel said, the teenager was not entitled to a preliminary injunction reversing the school’s disciplinary action against her.

‘Mainstream’ Approach

Though the sample of school cases is small—a little over three dozen out of more than 3,000 cases that have come before her as an appeals court judge—the available evidence appears to offer few surprises from Judge Sotomayor in that area, several experts in education law say.

Judge Sonia Sotomayor

Age: 54

Education:

• Cardinal Spellman High School, New York City, 1972

• Princeton University, summa cum laude, 1976 (A.B.)

• Yale Law School, 1979 (J.D.)

Work Experience:

• Assistant district attorney in New York County, 1979-84

• Lawyer in private practice, 1984-1992

• U.S. District Court for the Southern District of New York, 1992-98 (Nominated by President George H.W. Bush)

• U.S. Court of Appeals for the 2nd Circuit, 1998-present (Nominated by President Bill Clinton)

“She’s very representative of the mainstream of prevailing judicial outcomes in K-12 education,” said Perry A. Zirkel, a professor of education and law at Lehigh University, in Bethlehem, Pa. The judge appears to exhibit “moderation, rather than radical revisionism,” in her approach to the law, at least in school cases, he said.

An analysis that Mr. Zirkel conducted of Judge Sotomayor’s votes on school matters before the 2nd Circuit found that of 26 decisions on K-12 “regular education,” she ruled in favor of districts 83 percent of the time. (The analysis includes some cases in which more than one issue was considered and the outcome for each differed.)

Of 13 cases on special education, she ruled in favor of districts 58 percent of the time.

But Mr. Zirkel and others have been quick to note that she doesn’t always—or in any automatic way—side with school districts.

Jay Worona, the general counsel for the New York State School Boards Association, said her rulings in some instances “are not slam-dunk wins for school districts, ... but it’s clear that she is a very thoughtful person who makes decisions based upon her reading of the law.”

Judge Sotomayor, he said, brings “impeccable credentials and a seasoned track record as a jurist.”

Historic Nomination

If approved by the Senate, Judge Sotomayor—whose nomination to replace retiring Justice David H. Souter was announced May 26—would be the first Hispanic and the third woman to serve on the Supreme Court. At press time last week, no hearings on the nomination had been scheduled by the Senate Judiciary Committee.

Some conservatives, meanwhile, have sharply criticized the president’s choice and sought to portray her as a left-leaning activist.

“Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench,” Tony Perkins, the president of the Family Research Council, a Washington-based advocacy group on social issues, said in a statement.

Judge Sotomayor: On the Record

During her tenure on the federal trial and appellate bench, Sonia Sotomayor has weighed in on a variety of cases with implications for education.

Gant v. Wallingford Board of Education (1999)
U.S. Court of Appeals for the 2nd Circuit, 1999
(Dissenting in part from the majority opinion.)

“I consider the treatment this lone black child encountered during his brief time in Cook Hill’s first grade to have been ... unprecedented and contrary to the school’s established policies. ... Only one circumstance in this case stands out as the likely reason for the discrepancy between the defendants’ treatment of other struggling students and their treatment of Ray: his race. ... [A] jury could reasonably conclude that the school did not give the black student an equal chance to succeed (or fail).”

N.G. ex rel. S.C. v. Connecticut (2004)
2nd Circuit
(Concurring in part and dissenting in part from the majority opinion.)

“[O]ur case law consistently has recognized the severely intrusive nature of strip searches and has placed strict limits on their use. The concerns animating our prior rulings in this area should be only heightened when the privacy interests of emotionally troubled children are at stake. ... In my view, the government has not demonstrated adequately that the highly invasive suspicionless strip searches bore a ‘close and substantial relationship to the government’s special needs.’?”

Bartlett v. New York State Board of Law Examiners (2001)
U.S. District Court for the Southern District of New York*

“While the board’s concern with protecting the integrity of the bar is laudable, the board cannot turn this legitimate concern into a bias against learning-disabled applicants. ... [M]uch of this bias appears to arise from the assumption that giving extra time to applicants with learning disabilities gives them an unfair advantage over other applicants. ... Plaintiff’s experts have convinced me that the extra time provided to learning-disabled applicants merely levels the playing field and allows these individuals to be tested on their knowledge; it does not provide them with an unfair advantage.”

Much attention has been drawn to a 2nd Circuit case she participated in that is now before the Supreme Court, in which 17 white and one Hispanic firefighter who scored well on a promotional test claim the city of New Haven, Conn., discriminated against them.

Because no black or Hispanic firefighters scored high enough on an exam to win promotion to a lieutenant position, and no black test-takers scored high enough to make the list for captain, the city decided not to certify the results, saying in part that it did so to avoid violating discrimination protections for minorities.

A federal district judge held that the city’s action was justified.

That decision in the case, Ricci v. DeStefanoRequires Adobe Acrobat Reader, was ultimately affirmed by a three-judge panel of the 2nd Circuit that included Judge Sotomayor—a decision that has drawn strong criticism from some commentators.

But lawyer Thomas C. Goldstein, who writes for SCOTUS blog, an independent blog that tracks the high court, said that of 96 race-related cases in which she has participated on the 2nd Circuit court, Judge Sotomayor and the panel rejected the discrimination claims 78 times.

Judge Sotomayor did agree in part with the bias claim in the Gant case against a Connecticut school board. She articulated her views in a detailed, partial dissent, arguing that the student’s race stood out as the “likely reason” for his demotion from 1st grade to kindergarten.

A high-profile case now pending before the Supreme Court on the strip-search of a student at school, Safford Unified School District v. Redding, has some echoes of a case Judge Sotomayor handled on the 2nd Circuit in 2004. In N.G. ex rel. S.C. v. Connecticut, which concerned strip-searches of adolescent girls at a juvenile detention center, she dissented in part, rejecting the legality of certain searches.

As a federal district court judge, meanwhile, Judge Sotomayor ruled in Bartlett v. New York State Board of Law ExaminersRequires Adobe Acrobat Reader that a law school graduate with dyslexia was entitled to extra time and other accommodations in taking the state bar exam.

In the area of special education in general, Bruce A. Goldstein, a Buffalo, N.Y.-based lawyer who has represented both districts and families of children with disabilities, said, “I don’t see her stepping out beyond the bounds of what the majority of courts have held.”

He added: “I don’t see any of these decisions reflecting a bias, whether it be to families or school districts, but rather a very middle-of-the-road application of legal principles.”

Vol. 28, Issue 33, Pages 17,23

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