February
7th 2017
What Might Gorsuch Mean for Education?

Posted under Congress & Courts & Educational Choice & Federal Government & Legal Issues & United States Supreme Court & Vouchers

President Trump has always been a wild card. It’s been very hard to say what he would or would not do—and in some ways it still is. But one of the central promises of his campaign was that he would nominate a great justice to replace Justice Antonin Scalia, who died tragically almost exactly year ago. To his credit, he has kept that promise by selecting Neil Gorsuch to fill Scalia’s empty seat.

Education is still a bit of a question mark when it comes to the Trump administration. There have been all sorts of rumors and ideas floating around, but none has yet coalesced into a cohesive vision of how the federal government will interact with K-12 education. The crystal ball is further clouded by Betsy DeVos’s sharply contested nomination to head the U.S. Department of Education.

It’s been sad to watch the conversation about DeVos, a lifelong philanthropist who has donated her time and money to increasing opportunities for those who need them, devolve into a shouting match that sidesteps reality and avoids real conversations about what DeVos should or shouldn’t do should she be confirmed. As Rich Lowry wrote for National Review, “We now know that working to give poor kids more educational opportunities is considered a disqualifying offense for the Left.”

Fortunately, even as the battle over DeVos continues to rage following her historically close confirmation, I think we have good reason to be hopeful on a couple of educational fronts thanks to Gorsuch’s nomination.

Before we get to that, I think it’s important to understand who Neil Gorsuch is. The first thing you should know is that Gorsuch, a 49-year-old 10th Circuit Court of Appeals judge appointed by George W. Bush, is a Colorado guy through and through. He lives in Boulder County with his wife and daughters, and he reportedly loves to hike, fish, and ski. He is also an adjunct law professor at the University of Colorado. I’m not sure how someone like Gorsuch has survived for as long as he has both living and teaching in the People’s Republic of Boulder, but he has. Color me impressed.

But Gorsuch has accomplished more than survival in the world of the progressive left; he’s carved out a name for himself as brilliant, fair minded, and consistent—even in the opinion of those who disagree with him. It takes a special kind of legal and intellectual ability to adhere to one’s principles—in this case, strict adherence to the law and an originalist view of the U.S. Constitution—strongly and convincingly enough to sway even your opposition to admiration. As it turns out, this kind of intellectual gravitas was one of Justice Scalia’s defining characteristics, and was in large part to thank for the amount of influence his thinking has had on legal discourse and argument in America.

Without question, Gorsuch is one of the most “Scalia-like” candidates President Trump could have picked. But that doesn’t necessarily mean he’ll behave like an ideologue. He’s definitely conservative by temperament, and he has certainly taken a fair amount of flak for his opinions on a couple of high-profile cases. But he’s also swung away from hardline positions—enough so that even the left-wing website Slate has written about what they see as “flickers of humanity” in his criminal justice record and even commended him as “principled, dexterous, and eloquent.”

All told, Gorsuch is a great nominee. There’s likely to be serious resistance to his confirmation in the senate, particularly because he may require 60 votes to clear the chamber (there’s some significant doubt about this). That said, most of that resistance will be driven less by deep-seated opposition to Gorsuch himself and more by Democratic anger over Trump’s election, the president’s recent handling of a judicial decision related to one of his executive orders (and the judge who issued that decision), and the fact that Republicans blocked Obama’s pick to fill Scalia’s seat, Merrick Garland, for nearly an entire year ahead of the presidential election.

At the end of the day, though, it’s very likely Gorsuch will be confirmed. And I think that’s great news for education-minded folks in at least two ways. First, it may provide the opportunity for SCOTUS to reconsider the issue of forced union tribute by non-union teachers at the core of the immensely important Friedrichs case. That case was shaping up to result in a major win for independent teachers before Scalia’s death left it up in the air. The unfortunate result was that the remaining eight justices split evenly, allowing a lower court ruling in favor of so-called “agency fees” to stand. If the Friedrichs case, or one like it, can be brought before SCOTUS again, we now have a very real reason to believe it would successfully free the thousands of teachers unfairly forced to shell out money to organizations with which they disagree.

Second, and even more importantly, Gorsuch’s confirmation would likely be great news for those following the Douglas County voucher case. That case was appealed to the U.S. Supreme Court after the Colorado Supreme Court struck it down in a highly debatable judgment that hinged on the Colorado Constitution’s Blaine provision. More specifically, the Dougco appeal alleges that such provisions, which prohibit the flow of funds to “sectarian” institutions, violate the United States Constitution. A favorable ruling could strike down this kind of discriminatory language in more than three dozen states and throw open the doors of opportunity for millions of students looking for different educational options.

The high court has not yet indicated whether it will take the Dougco case, likely because it is already working through another interesting Blaine-related case out of Missouri. But it’s a safe bet that Gorsuch is familiar with the case given his legal roots in Colorado, and one hopes that would bode well for the court’s chances of accepting it. If it is accepted, Gorsuch’s presence may produce a ruling that could change the lives of underserved kids across the nation. That, my friends, is big stuff.

There are also a number of other education-related cases in which Gorsuch could play a major role, including another out of Douglas County dealing with special education services, but Friedrichs and Dougco strike me as the biggest. Needless to say, I’m hoping he will be confirmed quickly so the court can get back to work. I’ll be watching this one closely in the weeks to come.

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