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Gorsuch Offers Guarded Views on Special Ed. Proceedings, Religious Expression

By Mark Walsh — March 21, 2017 3 min read
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Judge Neil M. Gorsuch on Tuesday suggested he was in favor of easier access to justice for students with disabilities and their parents. And he said that as a federal appeals court judge he has struggled to understand the U.S. Supreme Court’s tests to evaluate the constitutionality of religious expression in the public square.

On the second day of his Supreme Court confirmation hearing before the Senate Judiciary Committee but his first day of questioning, Gorsuch was asked for his views on “access to justice” as the nominee expressed in a 2016 academic article.

Sen. John Cornyn, R-Texas, asked Gorsuch about the article in Judicature magazine called “Access to Affordable Justice: A Challenge to the Bench, Bar, and the Academy.” The article examined, among other issues, questions about the unauthorized practice of law, including in the area of special education proceedings.

In the article, Gorsuch wrote: “The federal Individuals with Disabilities Education Act (IDEA) affords parents the right to be ‘accompanied and advised’ in agency proceedings by nonlawyers who have special training or knowledge ‘with respect to the problems of children with disabilities.’ Yet even here, where (supreme?) federal law seems clear, state authorities have sought (sometimes successfully) to use [unauthorized practice of law] laws to forbid lay advocacy by nonprofit firms with expertise in IDEA procedures.”

Noting that nonlawyers are permitted to prepare tax returns and give tax advice, and to prepare patent applications, Gorsuch wrote: “And it is entirely unclear why exceptions should exist to help these sort of niche (and some might say, financially capable) populations, but not be expanded in ways more consciously aimed at serving larger numbers of lower- and middle-class clients.”

Speaking to the Judiciary Committee on Tuesday, Gorsuch recounted the IDEA example from his article.

“Why is it you have to be a lawyer to help parents in administrative proceedings to seek relief under IDEA?” he said, citing some other examples from his article as well.

“Those are all results of our ethical rules” in the legal profession, he said. “I’m not sure they’re worth the price that we pay for them.”

Religious Expression

Cornyn also asked Gorsuch about religious expression, framed in the senator’s disagreement with Santa Fe Independent School District v. Doe, a 2000 Supreme Court decision that struck down a Texas school district’s practice of allowing student-initiated, student-led prayers at football games as a violation of the establishment clause.

Cornyn indicated that he agreed with the dissent of then-Chief Justice William H. Rehnquist, who wrote that instead of exhibiting neutrality towards religion, the court was showing hostility.

“We don’t seem to have many limits on expressions of sex, violence, or crime in the public square,” Cornyn said. “But we do seem to have compunctions about religious expression in the public square.”

Gorsuch answered cautiously, without saying whether he agreed with the high court’s decision in Santa Fe.

“It is a very difficult area” because the First Amendment’s two religion clauses—one guaranteeing the free exercise of religion, the other prohibiting a government establishment of religion—are in tension, he said.

“The court has struggled in establishment clause jurisprudence to provide a consistent, comprehensive test,” Gorsuch said, noting that the prevailing test, from the 1971 case Lemon v. Kurtzman, has been criticized by a majority of the high court, though “never at the same time.”

“So Lemon endures,” he said. “And academics have thoughts about various options and alternatives, I know. And the justices themselves have expressed various and sundry ideas.”

“I can tell you as a lower court judge, trying to faithfully do what the Supreme Court wants us to do is a bit of a challenge in this area,” he continued. “We struggle.”

The exchanges came during the middle of what was expected to be a marathon day of questioning.

Photo: U.S. Supreme Court Justice nominee Neil M. Gorsuch gestures as he speaks on Capitol Hill in Washington, March 21, during his confirmation hearing before the Senate Judiciary Committee. Photo by Pablo Martinez Monsivais/AP

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