Law & Courts

High Court Nominee’s Judicial Record on Education Cases Sparse

By Mark Walsh — March 22, 2016 5 min read
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When President Barack Obama was introducing the nation to Merrick B. Garland, his nominee to the U.S. Supreme Court, he reached back to an anecdote from the federal appeals court judge’s high school days.

As valedictorian of Niles West High School in Skokie, Ill., in 1970, Garland was to deliver the commencement address. But he was preceded by a classmate who delivered a “fiery critique of the Vietnam War,” Obama said last week during the announcement in the Rose Garden of the White House.

This prompted some irritated adults to unplug the sound system, so part of the student’s speech was muffled.

“And Merrick didn’t necessarily agree with the tone of his classmate’s remarks, nor his choice of topic for that day,” the president 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, 63, is the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and has served on that court, to which he was appointed by President Bill Clinton, since 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 Justiceofficial over his career. But he has a relatively sparse record when it comes to education law.

Obama called on Senate Republicans to give Garland a hearing and an up-or-down vote, though Republican leaders largely resisted.

“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.”

The president also praised Garland’s “civic-mindedness,” noting that the Harvard College and Harvard Law School graduate has tutored a student at a District of Columbia high school each year for the last 18 years.

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

His mother, Shirley, was watching on television last week “and crying her eyes out,” he said, while his wife, Lynn, and daughter Rebecca watched from the front row, and 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.”

School Whistleblower’s Case

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 dealsonly 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 issued 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 a 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 email 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 the unanimous panel, Garland said the key part of the teacher’s email—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 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.

College Employment, IDEA Rulings

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, in Hunter-Boykin v. George Washington, wrote for the appeals court that the parties had essentially agreed to extend the statute of limitations.

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

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A version of this article appeared in the March 23, 2016 edition of Education Week as High Court Nominee’s Judicial Record Sparse on Education Cases

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