In a case being watched closely in some education circles, several U.S. Supreme Court justices appeared skeptical on Wednesday of a challenge to President Donald Trump’s executive action restricting travel to the United States from residents of five predominantly Muslim countries.
“If you look at what was done, it does not look at all like a Muslim ban,” Justice Samuel A. Alito Jr. said during the arguments in Trump v. Hawaii (Case No. 17-965). “There are other justifications that jump out as to why these particular countries were put on the list.”
The teachers’ unions, higher education groups, and at least 30 colleges and universities have joined friend-of-the-court briefs in support of the challenge to the so-called travel ban. They argue that the entry restrictions have kept international students, teachers, and scholars out of the United States for higher education and for academic conferences.
Among the claims of the challengers are that the latest iteration of Trump’s entry ban is, like two versions before it, motivated by anti-Muslim bias as expressed by statements by Trump both during the campaign and since he took office.
“We are very much of the view that campaign statements are made by a private citizen before he takes the oath of office and before ... [he] receives the advice of his cabinet, and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embodiment of the executive branch,” U.S. Solicitor General Noel J. Francisco said. “So ... those statements should be out of bounds.”
Neal K. Katyal, representing Hawaii and other challengers to the policy, said, “The only thing is, here, they themselves, the president and his staff, have rekindled” anti-Muslim sentiments, such as when Trump while in office retweeted three anti-Muslim videos and one of his spokespersons referenced it.
“And then the press spokesman was asked: What does this mean?” Katyal said. “What is this about? And the answer was: The president has spoken about exactly this in the proclamation.”
Several justices touched on some of the education concerns raised in the briefs.
Justice Sonia Sotomayor said the challengers “are saying that that negative religious attitude is stopping them from doing things that they would otherwise be able to do: To associate with scholars from these countries, to bring in students, to have family members join them.”
Sotomayor was probably the most skeptical of the president’s policy, saying among other things she was concerned that the availability of waivers for some travelers from the restricted countries was just “window dressing.”
Justice Elena Kagan pressed Francisco with a hypothetical involving a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency” before ending up with “a proclamation that says no one shall enter from Israel.”
“This is an out-of-the-box president in my hypothetical,” Kagan said to laughter in the courtroom.
Francisco said it was a “very tough hypothetical” but “if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
Besides Alito, Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy seemed skeptical of Katyal’s arguments against the president’s proclamation.
Justice Neil M. Gorsuch raised a question touching on an aspect of the case that could have implications in education. Because the Supreme Court took up the question of whether the president’s proclamation violated the First Amendment’s prohibition against any government establishment of religion, some conservative legal groups urged the court to use the case to get rid of the so-called Lemon test.
That test, from the high court’s 1971 decision in Lemon v. Kurtzman, has three parts: that a challenged law or government action regarding religion must have a secular purpose; that its primary effect must neither advance nor inhibit religion; and that it must not result in excessive government entanglement with religion.
The test has been significant in many education cases, such as ones striking down clergy-led prayers at public school graduations.
Gorsuch said to Katyal; “It’s been a long time since this court has used the Lemon test, reasonable observer, even to strike down a domestic statute, let alone something with purely international application. What do we do about that?”
Katyal replied, “We don’t think you have to get into Lemon and all these other tests that you all have struggled with.” He added that the court has been clear in other decisions that “when you’re talking about denigration of religion, all the tests point in the same direction.”
The case was the last one argued for the term, and a decision is expected by late June.
A version of this news article first appeared in The School Law Blog.