A Look at Trump’s Supreme Court ‘Finalists’ and Education Cases

By Mark Walsh — January 26, 2017 13 min read
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President Trump will announce his pick for the vacancy on the U.S. Supreme Court tonight. After winnowing his list of 21 possibilities, the president says he is ready to nominate a replacement for the late Justice Antonin Scalia, who died on Feb. 13 last year.

The finalists are now down to three. Or two, or four or five, depending on which account you want to put stock in. So I thought it would be a good time to provide an initial discussion of some of the education-related jurisprudence of those most likely to be named to the high court.

This is not an exhaustive review of education cases, which I will seek to provide for the eventual nominee. But it is meant as an introduction.

The “finalists” are Neil M. Gorsuch, 49, a judge on the U.S. Court of Appeals for the 10th Circuit, in Denver; Thomas M. Hardiman, 51, a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia; and William H. Pryor Jr., 54, of the U.S. Court of Appeals for the 11th Circuit, in Atlanta.

Two other judges have been mentioned even in recent days as still in the mix. They are Diane S. Sykes, 59, of the U.S. Court of Appeals for the 7th Circuit, in Chicago; and Raymond M. Kethledge, 50, of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. Sykes and Pryor were names specifically mentioned by Trump during the presidential campaign.

I’m going to discuss some of the key education cases of the current top three contenders.

Neil M. Gorsuch

Gorsuch, a graduate of Harvard law school, was a law clerk to retired Justice Byron R. White and also served Justice Anthony M. Kennedy during the 1993-94 term. He was a U.S. Department of Justice official when he was nominated to the 10th Circuit by President George W. Bush in 2006.

When it comes to education, Gorsuch has written or joined opinions in cases involving school discipline, education finance, special education, and religion in the public square, among others.

Last year, Gorsuch notably dissented from 10th Circuit panel ruling that upheld a school resource officer’s arrest and handcuffing of a New Mexico 7th grader for disrupting his class with “fake burps.”

The 2-1 panel majority in A.M. v. Holmes ruled that the officer was immune from liability because it was not clearly established that the student’s classroom disruptions were not in violation of a New Mexico law that prohibits interference with the “educational process” at any public or private school.

The majority also upheld qualified immunity for the officer regarding his use of handcuffs when he took the 13-year-old to a juvenile detention center.

Writing in dissent, Gorsuch said that a student’s classroom disruption that would have once resulted in a trip to the principal’s office and detention was now leading to the involvement of the police.

“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,” Gorsuch said. “So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option. ... Respectfully, I remain unpersuaded.”

In another case about constraining a student, Gorsuch joined a unanimous panel decision in 2013 that held a school district’s use of a “timeout room” to briefly restrain an elementary school student with developmental disabilities did not “shock the conscience” and thus did not violate the student’s constitutional rights. The case of Muskrat v. Deer Creek Public Schools involved an Oklahoma family’s claims about the use of the timeout room for their child, who was between ages 5 and 10 when it was used.

In an education-finance case, Gorsuch joined a 2012 panel decision that a group of Kansas parents in the Shawnee Mission district could proceed with a lawsuit seeking to declare a federal constitutional right to spend more on education than the state’s school-finance plan permitted.

The 10th Circuit held in Petrella v. Brownback that the parents group had standing to sue because their alleged injury—unequal treatment by the state—could be redressed by a favorable decision. (The suit was later rejected on the merits, including by a separate 10th Circuit panel that did not include Gorsuch.)

Finally, a dissent written by Gorsuch gives some clues about his views on religious displays on government property, including in public schools. In 2009, the full 10th Circuit declined to reconsider a panel decision that ruled against the public display of the Ten Commandments outside a county courthouse in Oklahoma.

In Green v. Haskell County Board of Commissioners, Gorsuch wrote a dissent joined by several of his colleagues that suggested one of the Supreme Court’s key tests for evaluating potential government establishment of religion, in the 1971 case of Lemon v. Kurtzman, had been altered by a pair of 2005 decisions about Ten Commandments displays.

“The Supreme Court’s central message in McCreary [County v. ACLU of Kentucky] and Van Orden [v. Perry] was that public displays focusing on the ideals and history of a locality do not run afoul of the Establishment Clause just because they include the Ten Commandments,” Gorsuch wrote. “In inclusive displays on places like courthouse lawns, the Ten Commandments can convey a secular moral message about the primacy and authority of law, as well as the history and moral ideals of our society and legal tradition.”

And in taking note of a 1980 per curiam Supreme Court opinion, in Stone v. Graham, which struck down a Kentucky statute that required the display of the Ten Commandments in public school classrooms, Gorsuch said the court in that opinion " took pains to emphasize that [the Ten Commandments] may be ‘integrated into . . . the school curriculum . . . in an appropriate study of history, civilization, ethics, comparative religion, or the like.’”

Thomas M. Hardiman

Born in Massachusetts, where his father owned a taxi and school transportation business, Hardiman was the first in his family to attend college when he went to the University of Notre Dame. Hardiman is said to have driven a taxi during college and law school to help finance his education.

He graduated from Georgetown University Law Center, then practiced law in Washington and Pittsburgh before being appointed a federal district judge in the latter city by President George W. Bush in 2003. In 2006, Bush nominated him to the 3rd Circuit, and Hardiman was confirmed to that position in 2007.

On the 3rd Circuit, Hardiman has written or joined opinions in a number of important school speech cases, including one he personally reminded this writer of in November at a meeting of the Federalist Society, which I covered as a reporter and Hardiman attended to moderate a panel (as did most of the judges on Trump’s then 21-person list of possible nominees).

In an amiable chat with a handful of reporters between sessions, Hardiman learned that I covered the high court for Education Week and asked if I was familiar with the “I ♥ boobies!” case. “Of course,” I said. Hardiman then reminded me of his take on the case, which I describe below.

In its 2013 decision in B.H. v. Easton Area School District, the full 3rd Circuit court ruled 9-5 to uphold an injunction blocking the Pennsylvania district from barring the breast cancer awareness wristbands, which are sponsored by the Keep a Breast Foundation in Carlsbad, Calif. The majority said the wristbands reading “I ♥ boobies! (KEEP A BREAST)” were not plainly lewd and commented on an issue of social importance without disrupting school.

Writing for the dissenters, Hardiman said the court should have deferred to the judgment of school administrators.

“In this close case, the ‘I ♥ boobies! (KEEP A BREAST)’ bracelets would seem to fall into a gray area between speech that is plainly lewd and merely indecorous,” Hardiman wrote. “Because I think it objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre, I would reverse the judgment of the district court and vacate the preliminary injunction.”

Hardiman had more to say in the lengthy dissent about the interests of school administrators and students in “socio-political causes” during school hours, but I’ll save discussion of that for if and when Hardiman gets the nomination.

In another much-debated case on student speech, Hardiman joined a majority of the full 3rd Circuit that ruled in favor of a Pennsylvania student who created a fake MySpace profile that depicted her principal as a pedophile and a sex addict. The majority held that the profile was created off campus and was so outrageous that it could not be taken seriously.

Hardiman also joined a concurrence in J.S. v. Blue Mountain School District that said it would go a little further than the majority ruling by holding “that the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.”

(For some reason, Hardiman did not participate in the companion student speech case decided by the full 3rd Circuit that day—Layschock v. Hermitage School District, which also upheld a student’s MySpace parody of his principal. The Supreme Court declined to review both decisions, which has left uncertainty about the legal status of student Internet speech.)

Hardiman has written or joined opinions expressing support for student and even parent religious expression in public schools.

In a 2009 decision, he dissented from a panel majority’s ruling upholding a school district’s refusal to let a parent read Bible passages to her son’s kindergarten class as part of a show-and-tell program.

In Busch v. Marple Newtown School District, Hardiman said in his dissent that he would have upheld the mother’s free speech claim because the school district practiced viewpoint discrimination. The mother’s “attempt to read Psalm 118 to her son’s class fell within the specified subject matter—i.e., something of interest to her son and important to his family—and the sole reason for excluding her speech was its religious character,” Hardiman wrote.

And in a 2013 case, Hardiman joined a unanimous panel ruling upholding an injunction that set aside a Pennsylvania school district’s rules that had barred a 5th grader from passing out invitations to a church youth party to her classmates.

In K.A. v. Pocono Mountain School District, the 3rd Circuit panel said it agreed that elementary school students are covered by the U.S. Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld the rights of secondary school students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

In Monn v. Gettysburg Area School District, a 2014 case on bullying, Hardiman joined a panel majority that expressed some sympathy for the plight of bullied students but held that in the particular case, there was no evidence that school officials had failed to act.

William H. Pryor Jr.

Pryor was widely considered the frontrunner, or one of the frontrunners, for the nomination for months. In the view of some observers, his prospects have dimmed a bit in the last week or so because in choosing him, Trump would be picking a fight not only with the left but also with some on the right.

Pryor attended Tulane University law school and was deputy attorney general of Alabama when he succeeded Jeff Sessions as state attorney general. (Sessions, now a Republican U.S. senator from Alabama, is Trump’s nominee to be U.S. attorney general.)

One decision causing heartburn for the generally quite conservative Pryor among the right wing is Glenn v. Brumby, a 2011 case in which Pryor joined a unanimous panel holding that Georgia officials violated the equal protection clause when they fired an employee for being transgender. With a case on transgender rights in schools pending in the Supreme Court, some on the right have been critical of Pryor for his vote in the Georgia case, even though the panel held that it was Supreme Court precedent that required it to hold that discrimination on the basis of transgender status constitutes sex-based discrimination and is therefore subject to heightened scrutiny under the 14th Amendment’s equal-protection clause.

In a more recent case on LGBT rights, Pryor wrote the opinion for an 11th Circuit panel that reinstated a lawsuit filed by a gay-straight alliance that was denied recognition at a Florida middle school. Pryor concluded in Carver Middle School Gay-Straight Alliance v. School Board of Lake County that Florida middle schools qualified as “secondary schools” under the federal Equal Access Act, which requires such secondary schools receiving federal funds to give extracurricular clubs equal access to school resources.

“We conclude that ‘secondary education,’ under Florida law, means at least ‘courses through which a person receives high school credit that leads to the award of a high school diploma,’” Pryor said, citing a provision of state law. “Carver Middle School provides courses through which students can obtain high school credit. The Equal Access Act applies to Carver Middle School.”

In a 2011 case, Pryor joined a panel decision that rejected a religious-freedom claim by a graduate student in a school counseling program who said her Christian faith was behind her intention to attempt to convert gay students into straight students. Officials at Augusta State University in Georgia determined that the graduate students intentions would violate ethical standards of the American Counseling Association, and they required her to undergo a remediation plan before she could participate in a clinical practicum in which she would be counseling a student.

In Keeton v. Anderson-Wiley, the 11th circuit panel rejected the student’s First Amendment free speech claim on the basis that the university was not engaged in viewpoint discrimination, and it rejected her establishment clause claim because the university’s rules about abiding by the ethics code was neutral with respect to religion.

In a concurrence, Pryor expressed concerns that the university’s initial remediation plan for the student may have been viewpoint discrimination because it targeted views of the graduate student on gay rights that ran counter to the university’s “preferred viewpoints.”

But the university corrected the plan to make clear that it sought to remediate the student because she would be violating rules of the clinical practicum, he wrote. But he expressed concerns that a university could go too far in enforcing an orthodoxy on an issue such as gay rights.

“When a student expresses her intent to violate the rules of a state-sponsored clinical program, the university may require her to provide reasonable assurances that she will comply with its requirements before the university permits the student to participate in the clinical program,” Pryor wrote. “But we have never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of other circumstances, express views at odds with the preferred viewpoints of the university. Our precedents roundly reject prior restraints in the public school setting.”

In a 2015 case, Pryor wrote the opinion for a unanimous panel that upheld a school district’s decision to remove a math tutor’s banners from its campuses after the district learned that the tutor is a former porn star who owns a company that once produced pornography.

The panel held in Mech v. School Board of Palm Beach County that the banners were government speech, not private speech. “The banners bear the imprimatur of the schools and the schools exercise substantial control over the messages that they convey,” Pryor wrote. Because of its holding that the banners were government speech, the appeals court did not explore the school district’s rationale that the tutor’s association with pornography was inconsistent with the district’s educational mission and values.

From top: Neil M. Gorsuch of the U.S. Court of Appeals for the 10th Circuit; Thomas M. Hardiman of the U.S. Court of Appeals for the 3rd Circuit; William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit. / AP-File

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