Special Education

Supreme Court Nominee Faced Range of K-12 Issues on Federal Bench

By Mark Walsh — February 07, 2017 8 min read
Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court.
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Neil M. Gorsuch has confronted a wide range of education issues as a federal appeals court judge over the last 11 years, siding with school authorities much of the time but with some notable exceptions.

Gorsuch is President Donald J. Trump’s choice to fill the vacancy on the U.S. Supreme Court created by the death of Antonin Scalia last year.

“Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support,” Trump said Jan. 31 in the East Room of the White House. “And his academic credentials, something very important to me, in that education has always been a priority, are as good as I have ever seen.”

Gorsuch, 49, was born in Denver but moved to the Washington suburbs and attended the elite Georgetown Preparatory School in Bethesda, Md., when his mother, Ann Gorsuch Burford, was appointed by President Ronald Reagan to lead the Environmental Protection Agency. She resigned that post in 1983.

Gorsuch graduated from Columbia University in 1988 and from Harvard Law School in 1991. He earned a doctorate at Oxford University as a Marshall Scholar. He was a law clerk to retired Justice Byron R. White, also a Colorado native, and also served Justice Anthony M. Kennedy during the 1993-94 term of the court. If confirmed, he would become the first law clerk to join the court and serve alongside a justice for whom he had clerked.

Gorsuch was a senior U.S. Department of Justice official when he was nominated to the U.S. Court of Appeals for the 10th Circuit, in Denver, by President George W. Bush in 2006.

Gorsuch, appearing with his wife, Louise, on a dais with Trump, said the work of the Supreme Court is “vital to the protection of the people’s liberties under law and to the continuity of our Constitution, the greatest charter of human liberty the world has ever known.”

Gorsuch said that “when we judges don our robes, it doesn’t make us any smarter, but it does serve as a reminder of what’s expected of us: Impartiality and independence, collegiality and courage.”

Gorsuch lives near Boulder, Colo., with his wife and two teenage daughters, reportedly on a large lot with horses, chickens, and goats.

When it comes to education, Gorsuch has written or joined opinions in cases involving school discipline, education finance, special education, and school employee speech, among others. Here is a look at some of his key education rulings:

Student Discipline

Last year, Gorsuch notably dissented from a 10th Circuit panel ruling that upheld a school resource officer’s arrest and handcuffing of a New Mexico 7th grader for disrupting his class with “fake burps.”

The 2-1 panel majority in A.M. v. Holmes ruled that the officer was immune from liability because it was not clearly established that the student’s classroom disruptions would not be in violation of a New Mexico law that prohibits interference with the “educational process” at any public or private school. The majority also upheld qualified immunity for the officer regarding his use of handcuffs when he took the 13-year-old to a juvenile detention center.

In his dissent, Gorsuch wrote with a sense of dismay that a student’s classroom disruption that would have once resulted in a trip to the principal’s office and detention was now leading to the involvement of the police.

“And maybe today the officer decides that, instead of just escorting the now-compliant 13-year-old to the principal’s office, an arrest would be a better idea,” Gorsuch said. “So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option. ... Respectfully, I remain unpersuaded.”

Gorsuch added that the New Mexico courts had “long ago alerted law enforcement that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely ‘disturb the peace or good order’ of individual classes.”

“Respectfully, I would have thought this authority sufficient to alert any reasonable officer in this case that arresting a now compliant class clown for burping was going a step too far,” Gorsuch wrote.

In a 2014 case, Hawker v. Sandy City Corp., Gorsuch joined an unsigned 10th Circuit panel decision holding that a city police officer’s “twist lock” restraint of the arms of a 9-year-old student suspected of stealing an iPad at school did not constitute excessive force.

The panel agreed with a federal district court that the officer, who was called to the school after the student was caught by the principal with the stolen iPad, used the twist-lock only after the student had grabbed her arm.

“The facts in this case are unfortunate in all respects,” the 10th Circuit panel opinion said. “It is regrettable that a police officer feels a need to resort to physical force, handcuffs, and arrest in order to gain control of and reason with a 9-year-old child. Equally regrettable is the disrespectful, obdurate, and combative behavior of that 9-year-old child. In any event, given [the student’s] resistance, [the officer’s] actions in this case simply do not rise to the level of a constitutional violation.”

Special Education

In yet another case about constraining a student, this time in special education, Gorsuch joined a unanimous panel decision in 2013 that held a school district’s use of a “timeout room” to briefly restrain an elementary school student with developmental disabilities did not “shock the conscience” and thus did not violate the student’s constitutional rights.

The case of Muskrat v. Deer Creek Public Schools involved an Oklahoma family’s claims about the use of the timeout room for their child, who was between ages 5 and 10 when it was used.

In a more typical special education case, Gorsuch wrote the opinion for a unanimous three-judge panel in 2008 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 parents had argued that despite making progress on his educational goals in school, the boy had trouble “generalizing” his learning experiences at home and in the community.

In Thompson R2-J School District v. Luke P., the 10th Circuit court panel reversed a federal district court ruling that had ordered reimbursement for the private placement.

“We sympathize with Luke’s family and do not question the enormous burdens they face,” Gorsuch wrote for the panel. “Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it. … The [IDEA] does not require that states do whatever is necessary to ensure that all students achieve a particular standardized level of ability and knowledge. Rather, it much more modestly calls for the creation of individualized programs reasonably calculated to enable the student to make some progress towards the goals within that program.”

Gary S. Mayerson, a New York City lawyer who had filed a friend-of-the-court brief on the family’s side for the group Autism Speaks, wrote a letter to Sen. Charles E. Schumer, D-N.Y., that criticized Gorsuch’s opinion in the case.

Gorsuch “wrote an opinion revealing his low and short-sighted expectations for individuals with autism,” Mayerson wrote, and that “Judge Gorsuch’s low expectations and equally low educational standards, he makes a poor choice to be considered for the high court.”

Stuart Stuller, a Boulder, Colo., lawyer who specializes in education law and represented the Thompson school district in that case, declined to comment on the substance of Gorsuch’s opinion.

Stuller said he has appeared before Gorsuch in three 10th Circuit cases, and “he’s extremely bright and someone who is always very well prepared on the bench.”

School Finance

In an education-finance case, Gorsuch joined a 2012 panel decision that a group of Kansas parents in the Shawnee Mission district could proceed with a lawsuit seeking to declare a federal constitutional right to spend more on education than the state’s school-finance plan permitted.

The 10th Circuit held in Petrella v. Brownback that the parents group had standing to sue because their alleged injury—unequal treatment by the state—could be redressed by a favorable decision. (The suit was later rejected on the merits, including by a separate 10th Circuit panel that did not include Gorsuch.)

In a 2007 case, Casey v. West Las Vegas Independent School District, Gorsuch wrote the opinion for a 10th Circuit panel that upheld the dismissal of most First Amendment free speech retaliation claims brought by a district superintendent.

The superintendent had been demoted and later her contract was not renewed by the school board after she raised issues about improper spending in the district’s Head Start program and that the board was violating the state’s open meetings act and other concerns about board actions.

Gorsuch wrote that most of the superintendent’s retaliation claims were barred under the then recent decision of the U.S. Supreme Court in Garcetti v. Ceballos, a 2006 decision that held when public employees speak pursuant to their jobs, they are not immune from discipline as they might be when speaking out as citizens on a matter of public concern.

“We do not mean to suggest [the superintendent’s] speech regarding the Head Start program did not relate to a matter of public concern,” Gorsuch wrote. “Far from it. As we have held many times, speech reporting the illicit or improper activities of a government entity or its agents is obviously a matter of great public import. We simply hold that [the superintendent’s] speech, such as it was, is more akin to that of a senior executive acting pursuant to official duties than to that of an ordinary citizen speaking on his or her own time.”

“Accordingly,” Gorsuch said, the superintendent could not “meet her burden here and avoid the heavy barrier erected by the Supreme Court in Garcetti.”

The court did allow a claim to proceed based on the superintendent’s reporting to the state attorney general about possible violations by the school board of the open-meetings law. Those statements, Gorsuch wrote, “are another kettle of fish.”

A version of this article appeared in the February 08, 2017 edition of Education Week as As Judge, High Court Pick Faced Range of K-12 Issues


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