Moderate Judge With Sparse Record on School Law Nominated for Supreme Court

By Mark Walsh — March 16, 2016 7 min read
  • Save to favorites
  • Print


President Barack Obama on Wednesday nominated Merrick Garland, a moderate federal appeals court judge with a relatively sparse record when it comes to education law, for the U.S. Supreme Court.

“I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence,” the president said in a Rose Garden ceremony.

Garland, 63, is the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and has served on that court since being nominated by President Bill Clinton in 1997. He is being nominated to fill the vacancy following the Feb. 13 death of Justice Antonin Scalia. He has been a lawyer in private practice, a federal prosecutor, and a Department of Justice official over his career.

With Senate Republicans having vowed not even to give a hearing to an Obama nominee, the president acknowledged “it is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that’s going on in the news every day.”

“I have fulfilled my constitutional duty,” the president said. “Now it’s time for the Senate to do theirs. Presidents do not stop working in the final year of their term, neither should a senator.”

Obama noted that Garland was valedictorian of his suburban Chicago high school and graduated with honors from Harvard University and its law school.

“He put himself through Harvard Law School by working as a tutor, by stocking shoes in a shoe store, and—in what is always a painful moment for any young man—by selling his comic book collection.”

Garland put his hand to his heart at that comment.

The president also praised Garland’s “civic-mindedness,” noting that he has tutored a student at a Washington, D.C., high school each year for the last 18 years.

And Obama recounted that as valedictorian of his high school, Garland was to deliver the commencement address, but he was preceded by a classmate who delivered a “fiery critique of the Vietnam War.” This prompted some parents to unplug the sound system, so part of the student’s speech was muffled. (The year was 1970, and the school was Niles West High School in Skokie, Ill.)

“And Merrick didn’t necessarily agree with the tone of his classmate’s remarks, nor his choice of topic for that day,” Obama said, “but stirred by the sight of a fellow student’s voice being silenced, he tossed aside his prepared remarks and delivered instead, on the spot, a passionate, impromptu defense of our First Amendment rights.”

“It was the beginning of a lifelong career as a lawyer and a prosecutor and as a judge devoted to protecting the rights of others,” Obama said.

Garland’s voice broke with emotion as he took to the lectern, saying his late father, Cyril, was a small businessman and “my mother headed the local PTA and school board.”

His mother, Shirley, was watching on television Wednesday “and crying her eyes out,” he said, while his wife, Lynn, and daughter Rebecca watched from the front row, while his other daughter, Jessica, was hiking in the mountains and out of cellphone range.

“As my parents taught me by both words and deeds, the life of public service is as much a gift to the person who serves as it is to those he is serving,” Garland said. “And for me, there could be no higher public service than serving as a member of the United States Supreme Court.”

[UPDATED: Wednesday, 9:43 p.m.]

For someone who has served on a federal appeals court for 18 years, Judge Garland has participated in relatively few education cases. That’s mainly because his appeals court deals only with matters from Washington, many of them federal regulatory issues.

There is one public school district—the District of Columbia public schools—and a handful of universities under the court’s jurisdiction, and Garland has had a few decisions involving them.

In what may be the most significant, Garland wrote the opinion for the D.C. Circuit when it ruled that a school principal and the then-chancellor of the city’s school system, Michelle Rhee, were entitled to immunity from the First Amendment retaliation suit filed by a special education teacher who contended he was dismissed in retaliation for blowing the whistle on alleged test tampering.

The teacher’s suit alleged that he was asked by his principal to falsify the tests of his students to show that they had made acceptable progress, which he refused to do. Soon after, the teacher faced warning letters from the principal over purported deficiencies, the suit said.

The teacher had sent an e-mail to Rhee detailing his classroom problems and the alleged actions of his principal regarding the tests. Soon after, the teacher was informed his contract would not be renewed.

A three-judge panel of the D.C. Circuit upheld the dismissal of the suit on the grounds that the principal and Rhee were entitled to immunity.

Writing for a unanimous panel, Garland said the key part of the teacher’s e-mail—the passage alleging test tampering—was not protected under then-prevailing D.C. Circuit precedent. That precedent held that a government employee’s speech reporting conduct that interferes with his job duties is not protected, even when it is made outside the normal chain of command.

That precedent may have been called into a question by a later Supreme Court ruling, but Rhee and the principal were entitled to immunity, Garland said.

“The defendants could reasonably have believed that they could fire [the teacher] on account of” his email to Rhee, Garland wrote in 2014 in Mpoy v. Rhee. “Even if we are wrong in concluding as a matter of law that the email reported conduct that interfered with his job responsibilities, it surely would not have been unreasonable for the defendants to believe that it did, and hence that it was lawful to fire” the teacher under the circuit precedent, he said.

Garland moved methodically through a number of complex issues in the 18-page opinion.

Some legal experts who have examined Garland’s body of judicial work suggest that he has leaned on the side of making sure individual plaintiffs get their day in court.

In a 1998 case, Garland wrote the opinion for a unanimous panel of the D.C. Circuit that revived the race-discrimination suit filed by a professor of secondary education against her employer, George Washington University. The suit alleged that the university had not offered her a tenure-track, higher-paid position that it offered a white applicant at the same time.

The university successfully argued in federal district court that the professor’s suit had been filed after a statute of limitations period had expired.

Garland wrote for the appeals court that the parties had essentially agreed to extend the statute of limitations,

“We conclude that a reasonable juror could readily interpret the parties’ tolling agreement in the manner suggested by [the professor],” Garland wrote in Hunter-Boykin v. George Washington University. “Because reasonableness is the appropriate standard for summary judgment in this case, we reverse the grant of judgment against her and order reinstatement of the complaint.”

In a special education case, Garland dissented from a panel majority that threw out a claim by parents who contended they were owed interest on attorney’s fees that the District of Columbia had paid late after the government had voluntarily agreed to pay the fees after settling the parents’ underlying complaint.

The D.C. Circuit majority essentially held in its 2003 decision that interest on late attorney’s fees were not authorized under the attorney’s fee provision of the Individuals with Disabilities Education Act.

In his dissent in Akinseye v. District of Columbia, Garland disagreed, to a point. He would not have dismissed the appeal on the majority’s ground that the court lacked “subject-matter jurisdiction.”

“My colleagues have ... presented a case for the proposition that, even if the plaintiffs were entitled to attorney’s fees, they do not have a claim for interest under the IDEA,” Garland wrote. “But there is also a case to be made for the opposite proposition, that the IDEA itself provides a federal cause of action for such interest as ‘part of the costs’ of the litigation.”

Garland didn’t go as far as concluding himself that the parents could recover the interest on the late attorney’s fees, but he would not have tossed their appeal because the question of subject-matter jurisdiction had not been raised by the parties.

Photo: Federal appeals court judge Merrick Garland, center, stands with President Barack Obama and Vice President Joe Biden as he is introduced as Obama’s nominee for the Supreme Court in the Rose Garden of the White House on March 16.

--Pablo Martinez Monsivais/AP

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