[UPDATED: Monday, 8:46 p.m.]
Besides his comments earlier Tuesday on non-lawyers in special education proceedings and student religious expression, Judge Neil M. Gorsuch was asked about various issues touching on education and children, some serious, some not so much.
Privacy and Parental Rights
Gorsuch engaged in a discussion with Sen. Chris Coons, D-Del., about religious freedom. The nominee said that the “14th Amendment, senator, over now about 80 or 90 years ... the Supreme Court of the United States has held that the liberty prong of the due-process clause protects privacy in a variety of ways having to do with childrearing and family decisions, going back to [the Meyer v. Nebraska case] which involved parents who wished to have the freedom to teach their children German at a time when it was unpopular in this country.”
“So senator, yes, the Constitution definitely contains privacy rights,” Gorsuch said.
Gorsuch’s acceptance of Meyer, a 1923 decision, and by extension its companion decision on parent childrearing and educational rights, Pierce v. Society of Sisters, from 1925, is noteworthy considering that the late Justice Antonin Scalia, whom Gorsuch would succeed if confirmed, questioned the legitimacy of those decisions, which I wrote about here.
One member of the panel on Tuesday did raise a special education ruling that Gorsuch has drawn criticism over, but it wasn’t Sen. Mazie Hirono, D-Hawaii, who had mentioned the ruling in her opening statement Monday.
Instead, it was Sen. Thom Tillis, R-N.C., who late on the second day brought up Thompson R2-J School District v. Luke P., in which Gorsuch wrote the opinion that ruled against a family seeking reimbursement for the placement of a child with autism in a private residential facility because the parents believed their school district had failed to provide a free, appropriate public education under the Individuals with Disabilities Education Act. The issue in the case was the level of benefit that districts must provide to be offering a “free, appropriate public education” under the federal law.
“In this case, I think you got the IDEA absolutely right,” Tillis said. “You made the right decision.”
Tillis was wearing an Autism Speaks pin and indicated he had sympathy for special education children and parents who were failed by their local school districts.
“I don’t have any personal experience with it, but it’s something to me that is very important,” Tillis said.
He quickly added that his answer to the issue when he was a North Carolina state legislator was to change state law to make it easier for families denied an appropriate education to win reimbursement for private education.
“You know what I did in North Carolina? I changed the law,” Tillis told Gorsuch. He said the North Carolina measure means that “after spending a year in public school didn’t think their child was getting what they needed, we would actually allow them to go to a private school and have the money follow them so they can do it.”
“Thank you for forcing me to do my job,” Tillis said.
He never asked Gorsuch a question about the Thompson case. But he didn’t ask the nominee much at all during his half hour of time.
Sister Mary Rose Margaret and Reading
Asked a question about “originalism” by Sen. John Cornyn, R-Texas, Gorsuch referred to one of his teachers, presumably when he was in a Roman Catholic elementary school as a youngster growing up in Denver.
“There is no better place to start” analyzing a law “than the text,” Gorsuch said. “Maybe here I have to blame Sister Mary Rose Margaret. She taught me how to read. And she taught me how to diagram a sentence, and under pain of a hot seat paddle which hung above her desk for all to see. She could teach a monkey how to read. She did—me.”
The Gorsuch Daughters and Mutton Busting
Gorsuch’s daughters Emma 17, and Belinda, 15, are not here in Washington this week. But they have been invoked a lot. The nominee referred to their animal raising for the county fair both Monday and Tuesday. But he went further Tuesday with a discussion of “mutton busting.”
“My kids never made it to Grand National” with their animals, he said during questioning by Sen. Ted Cruz, R-Texas. “They were more county fair types with their chickens and their rabbits and dogs and whatever. ... Then there’s mutton busting. I think my children still have PTSD from mutton busting.”
And what is mutton busting?
“You take a poor little kid, you find a sheep, and you attach the one to the other and see how long they can hold on,” he said. “It usually works fine when the sheep has got a lot of wool and you tell them to hold on. I tell my kids hold on monkey style. ... My daughters got knocked around pretty good over the years.”
Sen. Al Franken, D-Minn., chimed in, “Are there no animal abuse laws in Colorado?”, drawing laughs.
Gorsuch further embarrassed his daughters by telling Sen. Ben Sasse, R-Neb., that they weren’t very good at basketball.
But he told Sen. Amy Klobuchar, D-Minn., that of course he believes a woman could be president of the United States.
“I’m the father of two daughters, and I hope one of them turns out to be president,” he said.
Only one of them?
Sen. Sasse told Gorsuch that three teachers in his state had told him they were planning to use the confirmation hearing as a civics lesson with their students. “Why do we have a Bill of Rights?” the senator asked him.
“That’s a big question for us adults,” Gorsuch said, adding that it was also a big question for middle school and high school students. With limited time for such a big topic, Gorsuch said, “I wonder how many students right now know what the Third Amendment is about. Go look it up.”
(That amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”)
A version of this news article first appeared in The School Law Blog.