Law & Courts

Sotomayor’s Record on Education Scrutinized

May 26, 2009 6 min read

Judge Sonia Sotomayor, President Barack Obama’s choice for a seat on the U.S. Supreme Court, has ruled on a variety of issues with implications for education during her 17 years on the federal bench, including cases relating to racial matters, students with disabilities, and the strip-search of adolescents.

The high court, in fact, is considering the appeal of one high-profile case that Judge Sotomayor had a hand in deciding—involving employment tests for firefighters—that could have implications for race-conscious actions by schools.

Several Washington-based organizations that track developments in education law said today they were still reviewing Judge Sotomayor’s record for better clues as to the direction she might seek to bring to the high court.

President Obama announced his first pick for the Supreme Court at a White House ceremony this morning. If approved by the U.S. Senate, she would be the first Hispanic and the third woman to serve on the high court, replacing Justice David H. Souter, who recently announced plans to step down. Judge Sotomayor currently serves on the U.S. Court of Appeals for the 2nd Circuit, based in New York City.

“Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system, providing her with a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court justice,” the president said in making the nomination, noting that Judge Sotomayor has been appointed by both Republican and Democratic presidents.

Judge Sotomayor, 54, grew up in the South Bronx, graduated from Princeton University in 1976, and earned her law degree from Yale University in 1979. President George H.W. Bush in 1991 nominated her to the U.S. District Court for the Southern District of New York. In 1998, President Bill Clinton appointed her to the 2nd Circuit court.

Education Rulings

As interest groups comb through Judge Sotomayor’s judicial record, the firefighters’ case, Ricci v. DeStefano (Case No. 07-1428), has particularly drawn national attention.

In that case, Judge Sotomayor joined two other judges in the 2nd Circuit last year in upholding the rejection of a lawsuit brought against the city of New Haven, Conn., by 18 white firefighters, including one Hispanic. The firefighters claimed the city discriminated against them in making hiring decisions. Because no black or Hispanic firefighters scored high enough on an exam to win promotion, the city had scrapped the tests.

Concerns about racial predjudice also arose in Gant v. Wallingford Board of Education, a 2nd Circuit case regarding the midyear transfer of an African-American student from 1st grade to kindergarten at a public school in Wallingford, Conn. The student’s family claimed that the school had intentionally discriminated against him on the basis of his race, by exhibiting “deliberate indifference” to racial hostility he encountered at school, and by deciding to demote him to kindergarten. Most students at the school were white.

Judge Sotomayor agreed with the majority decision of the three-judge panel to dismiss the racial-harrassment claim, but she dissented from its conclusion that the transfer was not an act of racial discrimination.

“I consider the treatment this lone black child encountered during his brief time in Cook Hill’s first grade to have been ... unprecedented and contrary to the school’s established policies,” she wrote in her dissent in the 1999 decision. She said that “every other Cook Hill student having academic difficulty received some form of transitional help, such as compensatory education, testing, or transitional classes ... [A] jury reasonably could conclude that the school did not give the black student an equal chance to succeed (or fail).”

Judge Sotomayor also has ruled in two lawsuits that have echoes of current education-related cases before the Supreme Court.

In Frank G. v. Board of Education of Hyde Park, decided by the 2nd Circuit in 2006, she joined a unanimous decision by a three-judge panel stating that parents can get reimbursed for private school tuition for a child with disabilities even if the child has never received such services from their home school district. The same issue is now under consideration in Forest Grove School District v. T.A. (Case No. 08-305), which also deals with reimbursement for such “unilateral” placement of children into a private school. (“Reimbursement for Private Placement Again Topic of Supreme Court Scrutiny,” May 13, 2009.)

Another ruling Judge Sotomayor was involved in has similarities to a case to be decided by the Supreme Court, Safford Unified School District v. Redding (Case No. 08-479), which involves the strip-search of a public school student.

In 2004, Judge Sotomayor was among the three 2nd Circuit appellate judges in the case of N.G. ex rel. S.C. v. Connecticut, which involved the strip-search of adolescent girls at a juvenile detention center. That panel upheld the legality of certain strip searches of the teenagers, though it said others were unreasonable.

Judge Sotomayor concurred in part and dissented in part in that ruling. In her separate opinion, she wrote that “our case law consistently has recognized the severely intrusive nature of strip searches and has placed strict limits on their use. The concerns animating our prior rulings in this area should be only heightened when the privacy interests of emotionally troubled children are at stake.”

She added: “In my view, the government has not demonstrated adequately that the highly invasive suspicionless strip searches bore a ‘close and substantial relationship to the government’s special needs.’”

At least one recent ruling by Judge Sotomayor, in Doninger v. Niehoff, has upset some First Amendment advocates. She joined two other judges from the 2nd Circuit in ruling that a student’s off-campus blog remarks created a “foreseeable risk of substantial disruption” at the student’s high school and that the teenager was not entitled to a preliminary injunction reversing a disciplinary action against her. A lawsuit filed on behalf of the student, Avery Doninger, alleged that she was barred from serving in a student office because of derogatory comments she wrote about school officials on a Web blogging site.

As a federal district court judge, meanwhile, Judge Sotomayor ruled in Bartlett v. New York State Board of Law Examiners that a law school graduate with dyslexia was entitled to extra time and other accommodations in taking the state bar exam.

Conservative Criticism

Some conservatives have been quick to criticize the president’s pick for the high court.

“Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench,” Tony Perkins, the president of the Family Research Council, a social-issues advocacy group in Washington, said in a statement.

But Marc H. Morial, the president and chief executive officer of the National Urban League, applauded the nomination.

“Judge Sotomayor appears to be an eminently qualified judge with the intellectual heft, strong record, and common touch that is needed in a Supreme Court justice,” he said in a statement. “We believe the president has made an outstanding choice.”

The choice was applauded by leading Democrats in Congress, while Republicans in the Senate, which must approve her nomination, were far more cautious in their initial reaction.

“Senate Republicans will treat Judge Sotomayor fairly,” said Sen. Mitch McConnell of Kentucky, the Republican leader for his chamber. “But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

A version of this article appeared in the June 10, 2009 edition of Education Week

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