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Legal issues affecting education surfaced repeatedly last week during Senate confirmation hearings for Judge Sonia Sotomayor, most notably as the senators and the U.S. Supreme Court nominee discussed racial diversity and discrimination, including a schools case she handled at the appellate level.
And yet, as with so much during nearly a week of hearings, those exchanges seemed to reveal far more about the views and agendas of the senators—whether on diversity and equal opportunity in education or strip-searching students—than about how President Barack Obama’s nominee will act if she is confirmed to the high court.
Photos: Steven Crowley/Pool/AP;Gerald Herbert/AP;Charles Dharapak/AP.
The Senate Judiciary Committee on July 16 wrapped up three days of questioning of Judge Sotomayor, who currently serves on the U.S. Court of Appeals for the 2nd Circuit, in New York City. The senators then turned to a long list of other panelists who testified about the nomination, including New York Mayor Michael R. Bloomberg, representatives from the American Bar Association, and Linda Chavez, the chairwoman of the Center for Equal Opportunity, an advocacy group based in Falls Church, Va., that is critical of racial preferences.
Judge Sotomayor—who appears all but certain to receive confirmation by the Democratic-controlled Senate—was careful before the committee to avoid sharing much of her own views on key legal cases or debates.
The core message Judge Sotomayor attempted to convey to the senators was that she would adhere to the law as written, leaving any personal biases aside and bringing an open mind to all cases.
“We’ve seen this before with previous nominees, where the way to ensure that you pass through the nomination process is to be as general as possible and say as little as possible,” said Bruce A. Goldstein, a Buffalo, N.Y.-based lawyer in private practice who specializes in special education and disability law. “There’s a politically correct set of answers that you can give, and if you really try to address what are the real underlying issues, that would potentially ... create problems.”
During her 17 years as a federal judge at the district and appellate court levels, Judge Sotomayor has handled only a relatively small number of cases dealing directly with K-12 education. (“School Rulings By Sotomayor Eyed Carefully,” June 10, 2009.)
Sen. Benjamin L. Cardin, D-Md., specifically addressed one of those cases, from her time on the 2nd Circuit and concerning allegations of racial discrimination against a black student at a Connecticut elementary school.
Sen. Cardin highlighted, with apparent approval, her partial dissent in Gant v. Wallingford Board of Education. He quoted her statement that “the treatment this lone black child encountered ... [was] unprecedented and contrary to the school’s established policy.”
Although Judge Sotomayor agreed with the 2nd Circuit panel’s rejection of a claim that the school had acted with “deliberate indifference” to racial hostility the student allegedly had encountered at school, she contended in her dissent that the student’s family had grounds for proceeding with a claim that their son’s midyear demotion from 1st grade to kindergarten was driven by race.
“[I]f you ignore race completely, aren’t you ignoring facts that are important in a particular case?” Sen. Cardin asked.
Reflecting back on her dissent, Judge Sotomayor told the panel: “I joined the majority in dismissing some of the claims as not consistent with the law. But in that case, there was a disparate-treatment element, and I pointed out the set of facts that showed or presented evidence of the disparate treatment. That’s the quote you were reading from, that this was a sole child who was treated completely different than other children ... of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help.”
She added: “[W]hat you’re looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation.”
As expected, Judge Sotomayor was asked by various senators throughout the hearings, which began July 13, to explain a controversial ruling she joined—and that was reversed last month by the Supreme Court on a 5-4 vote—in a case in which firefighters from New Haven, Conn., alleged reverse discrimination.
Judge Sotomayor and two fellow judges rejected the firefighters’ claims in Ricci v. DeStefano and upheld the city’s decision to throw out a promotions exam. The city said it feared the results, in which no black firefighters scored high enough to win a promotion, could spur a civil rights lawsuit from minorities.
The president’s nominee has come under particular fire from conservatives for that decision, and during the hearing Republicans repeatedly expressed their concerns about the ruling and how it was handled by Judge Sotomayor.
“[T]he panel ... decided that case on the basis of the very thorough 78-page decision by the district court and on the basis of established precedent,” she told the Judiciary Committee on July 14. “This was not a quota case; this was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.”
She added: “The city was faced with the possibility recognized in law that the employees who were disparately impacted ... could bring a suit, and that then the employer had to defend the test that it gave.”
On July 16, Sen. John Cornyn, a Republican from Texas, referred to a 2007 schools case on race in his line of questioning on the reverse-discrimination issue, asking: “Do you agree with Chief Justice John Roberts when he says the best way to stop discriminating based on race is to stop discriminating based on race?”
The senator’s question paraphrased the chief justice’s opinion for the majority in Parents Involved in Community Schools v. Seattle School District, in which the high court sharply curtailed the permissible use of race in assigning students to schools. (“Use of Race Uncertain for Schools,” July 18, 2007.)
“The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all,” Judge Sotomayor replied. “And I follow what the Constitution says, that is, how the law should be structured and how it should be applied to whatever individual circumstances come before the court.”
When pressed a second time by Sen. Cornyn to say whether she agreed with the chief justice’s observation on discrimination, she declined to offer an opinion, saying, “I accept the court’s ruling in that case.”
Meanwhile, during the first round of questioning, on July 14, Sen. Herb Kohl, a Wisconsin Democrat, asked for Judge Sotomayor’s views on affirmative action.
“Do you believe that affirmative action is a necessary part of our society today?” he said. “Do you agree with [former] Justice [Sandra Day] O’Connor that she expects in 25 years the use of racial preferences will no longer be necessary to promote diversity? Do you believe affirmative action is more justified in education than in employment? Or do you think it makes no difference?”
“The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment,” Judge Sotomayor replied. “To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court.”
She added: “It is firmly my hope ... that in 25 years, race in our society won’t be needed to be considered in any situation. That’s the hope. ... [B]ut there are situations in which there are compelling state interests, and [in] the [higher education] admissions case that Justice O’Connor was looking at, the court recognized that in the education field.”
Judge Sotomayor then proceeded to give a quick overview of two Supreme Court cases from the University of Michigan decided in 2003, while avoiding offering any opinion about the wisdom of those rulings.
In Grutter v. Bollinger, the court upheld a race-conscious admissions policy at the university’s law school because it included individualized consideration of each applicant. But the court struck down a more mechanized race-conscious admissions plan for the university’s main undergraduate school in Gratz v. Bollinger. (“Justices Give K-12 Go-Ahead to Promote Diversity,” July 9, 2003.)
Judge Sotomayor did not directly answer Sen. Kohl’s question about whether affirmative action was more justified in education than employment.
‘A Stunning Lack of Empathy’
Several Democratic senators referred to the strip-search case decided this term by the high court.
In his opening statement on July 13, Sen. Richard J. Durbin of Illinois said: “At the oral argument in April, several of the Supreme Court justices asked questions about the case that revealed a stunning lack of empathy with the 8th grade victim.”
Empathy itself has been a topic of debate during the hearings, with Republicans expressing skepticism of President Obama’s statement that “empathy” is an essential trait for a judge.
The court ultimately ruled 8-1 in Safford Unified School District v. Redding that public school officials violated the Fourth Amendment rights of a 13-year-old girl who was strip-searched on suspicion of possessing prescription-strength ibuprofen tablets. At the same time, the court concluded 7-2 that the school officials involved were entitled to qualified immunity from legal action.
Sen. Patrick J. Leahy, the chairman of the Judiciary Committee, echoed concerns about the tenor of some of the questioning during the oral arguments in the Safford case. In addition, he highlighted a similar case Judge Sotomayor handled in 2004 on the 2nd Circuit regarding the strip-search of teenage girls at a juvenile-detention center. In her dissent from the three-judge panel’s decision in N.G. ex. rel. S.C. v. Connecticut, she disagreed with the majority’s decision to uphold certain strip-searches of the girls.
“In a dissent, you ... warned that courts should be especially wary of strip-searches of children, since youth is a time and condition of life when a person may be most susceptible ... psychological damage,” Sen. Leahy said. “As a parent and a grandparent, I agree with you.”
Judge Sotomayor did not respond directly to this matter during the questioning.
The nominee also had occasion to speak more broadly during the hearings about the importance of education and parenting, arguing that they, rather than the courtroom, are the best places for addressing the ills of society.
“By the time a criminal defendant ends up in court, they’ve been shaped by their lives,” she said. “The success of our communities depends on us improving the quality of our education of our children and of parental participation in ensuring that happens in our society.”
She added, “We cannot remedy the ills of society in a courtroom. ... We can only apply the law to the facts before us.”
A vote in the Judiciary Committee on Judge Sotomayor’s nomination is expected the week of July 27. And the panel’s top Republican, Sen. Jeff Sessions of Alabama, signalled July 16 that he would be open to Democrats’ desire to hold a floor vote in the Senate before Congress leaves for its August recess early next month.
Education Week Contributing Writer Mark Walsh contributed to this story.
A version of this article appeared in the August 12, 2009 edition of Education Week as Sotomayor Hearings Touch—Lightly—On Education