5 Things for Educators to Consider About Neil Gorsuch’s Confirmation Hearing

By Mark Walsh — March 17, 2017 6 min read
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Neil M. Gorsuch goes before the Senate Judiciary Committee beginning Monday as President Donald Trump’s nominee to succeed the late U.S. Supreme Court Justice Antonin Scalia. If recent experience is any guide, the nation will learn much greater detail about the nominee’s educational background and his views on at least some issues of interest to educators. Here are some things for educators to keep in mind as the hearing unfolds:

1. Gorsuch is a pretty much a private school kind of guy.

Gorsuch grew up in Colorado and attended a Roman Catholic elementary school before his family moved to the Washington area in 1981 when his mother, Ann Gorsuch Burford, became administrator of the Environmental Protection Agency under President Ronald Regan. Gorsuch enrolled in the Georgetown Preparatory School, a Jesuit-run boys school just outside the capital, where he was student body president in his senior year, and his yearbook entry contained a reference to his formation of a “Fascism Forever Club"—reported to be a joking response to his being teased by some classmates as a “conservative fascist.”

Besides attending private institutions for his undergraduate studies (Columbia University) and law school (Harvard), Gorsuch was a trustee from 2011 to 2013 of the private Boulder Country Day School in Boulder, Colo. “As a board member, I participated in meetings where the board dealt with various issues facing the school, including academics, finances, and student activities,” Gorsuch wrote in his Senate Judiciary Committee questionnaire.

In the 2011-12 school year, Gorsuch and his wife, Louise, were recognized in the school’s annual report for donating at least $1,000. And it appears that the couple’s two daughters—Emma and Belinda, who are now in their mid- to late teens—have attended that school and/or another independent school in the Boulder area, the Dawson School.

2. Gorsuch once criticized liberals for using the courts to achieve their goals on education.

In 2005, while working as a lawyer before he joined the U.S. Court of Appeals for the 10th Circuit, Gorsuch wrote an essay for National Review Online that criticized liberals for using “constitutional lawsuits” to achieve policy goals, including in education.

“There’s no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education [of Topeka, Kan.] topping the list,” Gorsuch wrote. “But rather than use the judiciary for extraordinary cases, ... American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

The reference to vouchers presumably means liberal-led challenges to government voucher programs, such as the suit brought against Ohio’s private school voucher program for Cleveland, which was led by the teachers’ unions but resulted in the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris that the inclusion of private religious schools among the choices for parents using vouchers was not an unconstitutional government establishment of religion.

(Gorsuch did not acknowledge, in that brief reference, that some conservative groups had years earlier brought constitutional lawsuits that unsuccessfully sought to force the government to provide vouchers.)

3. Gorsuch has been involved in quite a few education-related cases as an appeals court judge.

As a judge on the 10th Circuit since 2006, Gorsuch has written or joined opinions in cases involving school discipline, education finance, special education, employment discrimination, and religion in the public square, among other topics of interest to educators. I wrote about many of the nominee’s key rulings here.

Meanwhile, in the journal Education Next, Clint Bolick has a nice piece examining Gorsuch’s judicial record on education as well. Bolick, a right-leaning liberterian who is now a member of the Arizona Supreme Court, was a litigator who represented intervening private school parents seeking vouchers in the Zelman case cited above.

“I found Gorsuch’s work to be sensible, law-bound, and quite readable, whether he is addressing high-toned issues such as the First Amendment’s free exercise clause or more mundane subjects as student burping,” Bolick wrote. [The “student burping” case is here.]

“My review revealed five key aspects of Gorsuch’s work,” Bolick added. “He is a textualist, does not automatically defer to government authority, takes a broad view of standing, is a clear writer, and is unfailingly gracious with his colleagues.”

“It is no small task to replace Justice Scalia, who was a giant of American jurisprudence,” Bolick wrote. “But Neil Gorsuch’s judicial record is impressive. His combination of experience, intellect, and temperament provide the prospect of replacing one jurisprudential giant with another.”

4. Progressive groups have focused some of their criticism of Gorsuch on his rulings in the areas of special education and disability discrimination.

Several left-leaning organizations have criticized Gorsuch for some of his special education rulings, arguing that he has been unsympathetic to students and teachers with disabilities.

The Alliance for Justice concluded that Gorsuch has “read the Individuals with Disabilities Education Act (IDEA) extremely narrowly.” The National Education Association said Gorsuch has “an overwhelming body of cases demonstrating his hostility towards this already vulnerable population” of students with disabilities.

In a report issued Thursday, the NAACP Legal Defense and Educational Fund concluded that Gorsuch’s “limited but revealing record on education forebodes concerning outcomes for students with disabilities, students facing abuse of authority, and students pressing other civil rights violations if he were to become the new associate justice.”

5. The Senate Judiciary Committee will likely ask Gorsuch at least a few questions about education issues.

The nominee is expected to appear before the committee for at least three days beginning March 20. The first of those days will be taken up almost entirely by the committee members (11 Republican, nine Democratic) delivering their own opening statements. But the committee will eventually get around to questioning Gorsuch. Recent experience suggests the topics will veer all over the map, but will include some questions about education.

In 2010, Elena Kagan was asked about Brown v. Board of Education, military recruiting on college campuses during the “don’t ask, don’t tell” era for gay service members, and the Supreme Court’s tests for evaluating government policies on religion.

In 2009, Sonia Sotomayor was asked about racial diversity and affirmative action in education, strip searches of students, congressional efforts to create gun-free school zones, and Brown v. Board of Education.

I will go out on a limb and predict that Brown, the landmark 1954 decision ushering in racial desegregation in the nation’s public schools, will get some discussion during Neil Gorsuch’s confirmation hearing.

Photo: Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court. (Carolyn Kaster/AP)

A version of this news article first appeared in The School Law Blog.