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Photo Credit: Getty Images

February 2, 2017

Talking Points

How SCOTUS pick Neil Gorsuch has ruled on discipline and special ed — and might rule on mandatory dues

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President Trump on Tuesday evening nominated Judge Neil Gorsuch, currently serving on the 10th Circuit Court of Appeals based in Colorado, to fill the seat on the Supreme Court left empty after Justice Antonin Scalia’s unexpected death nearly a year ago.

Gorsuch was student body president at Georgetown Prep in suburban Washington, D.C., where his mother was the first female head of the Environmental Protection Agency. He graduated from Columbia University and Harvard Law School while also studying at Oxford University as a Marshall Scholar. He and his wife, Marie Louise, have two teenage daughters, Emma and Belinda.

This year could be a landmark one for education decisions by the high court, with four school-related cases pending.

Two cases concerning special needs students (one of them actually against a Colorado school district) have already been argued, so Gorsuch will have no role in the decisions unless the court re-hears arguments.

The other two concern whether transgender students have the right to use the bathroom that matches their gender identity and whether religiously affiliated schools qualify for state money for nonsectarian purposes. The latter could have an impact on school vouchers, which allow families to use public money to pay tuition at private schools, many of them religious. Trump has said he wants to put $20 billion of federal money toward school choice, including vouchers.

Neither of those pending cases out of Virginia and Missouri has been scheduled for oral arguments.

(The 74: Vouchers, Union Dues, Transgender Students: How the High Court May Rule Under Trump)

Here are four things to know about Gorsuch’s time as a federal judge and how they could influence his views if he reaches the Supreme Court:

1. His ideas on deferring to agencies could come up in the transgender students’ rights case.

Gorsuch has questioned what’s known as Chevron deference, or the idea that judges should defer to an agency’s interpretation of a law unless that interpretation is “unreasonable.”

The question of how much deference courts should give the executive branch in interpreting rules will come into play in the pending case of G.G. v. Gloucester County School Board. There, justices will decide whether a similar Auer standard, which gives deference to agencies in interpreting their own regulations, applies to an Obama administration ruling that transgender students should have access to restrooms appropriate for their gender identity. The Obama administration said Title IX, which prohibits discrimination based on sex in education, also bans discrimination based on gender identity.

(The 74: SCOTUS to Hear Virginia Transgender Case With Big Implications for Ed Policy and Beyond)

He also joined a 2015 opinion that rejected arguments by a transgender woman incarcerated in Oklahoma who argued that her rights were violated when the prison refused to provide hormone therapy or allow her to wear women’s clothing.

Both Lambda Legal and the Human Rights Campaign, groups advocating for LGBT rights, immediately opposed the nomination.

2. Liberals are concerned about his record on special education.

People for the American Way, a progressive advocacy group, in a release pointed to three decisions that they say indicate Gorsuch “would not protect the rights of disabled students.”

In one, Gorsuch, writing for a three-judge panel, said that a school did provide a free, appropriate public education for an autistic boy, as required by the Individuals with Disabilities Education Act, even though the student couldn’t apply what he was learning at school to other environments.

In the second case, he ruled that a student who had come to a settlement with a school district under IDEA couldn’t then bring a separate claim under the Americans with Disabilities Act or Rehabilitation Act. And in the third, he upheld a lower court’s decision that a student with disabilities who dropped out of school after failing to be served well was not entitled to compensatory educational services.

The National Education Association in a release cited his rulings on students with disabilities as among their “concerns about Judge Gorsuch’s record.”

The Colorado special education case in which the justices have already heard oral arguments — Endrew F. v. Douglas County School District — will decide whether special needs students are entitled to a “just above trivial” educational benefit under IDEA or something more “meaningful.” That case came out of the 10th Circuit, where Gorsuch serves, although he wasn’t part of the three-judge panel that decided in favor of the school district and the lower standard.

(The 74: Supreme Court Justices Eye Possible Higher Special Ed Standard, but What That Should Be Eludes Them)

3. It opens the door for another mandatory union dues case.

Scalia’s death last year resulted in a 4-4 tie — and thus no change in the law — in the highly anticipated Friedrichs case, which argued that requiring teachers to pay union dues violated the First Amendment by compelling them to support advocacy with which they disagreed.

The National Right to Work Committee has several cases pending in the courts challenging state laws requiring public employees to pay union dues, said Mark Mix, the group’s president.

The one closest to Supreme Court consideration is Janus v. AFSCME. Two Illinois state employees are challenging a state law that requires them to pay union dues.

“We fully expect to lose that case” when judges hear it March 1, Mix said. They would then appeal to the high court in hopes of setting up consideration in the court’s next term, which begins in October.

The group is “cautiously optimistic” that a nine-member judicial body that included Gorsuch would side with workers opposed to mandatory dues, he said.

The general philosophy on Gorsuch “is that he’s kind of cut from the Scalia cloth,” Mix said.

Scalia seemed prepared during oral arguments to overrule mandatory union dues. Before the court could issue an opinion, he was found dead in his bed while on a hunting trip in Texas. Gorsuch has admitted crying after hearing of Scalia’s death while skiing.

(The 74: Inside the Supreme Court: Scalia, Once Seen as Key Friedrichs Swing Vote, Turns on Teachers Unions)

The Right to Work group hopes Gorsuch will see the “originalist intent” of the First Amendment, “that being compelled to speak is something we believe the First Amendment abhors,” Mix added.

4. He’s ruled on school discipline in the past, in favor of a student but also a cop.

Gorsuch dissented in the case of A.M. v. Holmes, in which justices ruled that it was appropriate for a school resource officer to arrest a student who burped so often that he interrupted gym class.

The colorful writing, which has attracted attention on social media, says:

“If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen-year-old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”

In two other cases, however, he joined decisions upholding the actions of a police officer who used a “twist-lock” arm restraint on a 9-year-old boy accused of stealing an iPad and the actions of an Oklahoma school district that briefly sent an elementary school student with developmental disabilities to a timeout room.