Gorsuch is threat to public education

Court nominee's record on school issues merits scrutiny

FOR SEVERAL WEEKS, opposition to Betsy DeVos as President Trump’s nominee for secretary of education was front and center in the news – and that was largely thanks to educators. The extent of our dissent, with tens of thousands of letters and phone calls to legislators against her nomination, was tremendous. While the Senate ultimately confirmed DeVos, educators’ opposition made this nomination the closest cabinet vote in history.

Now, the education community has the obligation to bring to bear its incredible organizing capacity against another disconcerting nominee. The threat US Supreme Court nominee Neil Gorsuch poses to public education has been largely ignored.

Gorsuch’s record on education-related cases should raise major concerns about how he may rule in the future if confirmed to the Supreme Court. This is of particular significance since the coming years will likely see many education policies litigated through the courts.

Of central concern to teachers are the issues regarding unions raised in Friedrichs v. California Teachers Association, which questions whether a public school teachers’ union can compulsorily collect dues from teachers who are not members of the union, but benefit from union-negotiated collective bargaining agreements.

A split 4-4 decision from the Supreme Court in 2016, without the late Justice Antonin Scalia, upheld a lower court ruling in favor of the union. Scalia had strongly hinted that he considered compulsory union dues a violation of teachers’ freedom of speech, however, and his vote would have tipped the balance against teachers.

Gorsuch’s legal philosophy is broadly similar to Scalia’s, and he, too, would have likely ruled against the union. In hopes of precisely this outcome, the Center for Individual Rights recently filed Yohn vs. California Teachers Association, arguing against compulsory union dues. If Gorsuch is on the Court when this issue comes before it again, his swing vote could severely weaken teachers’ unions by denying them the ability to raise funds needed to adequately represent teachers. While those who believe that teachers unions aren’t in the interest of students may rejoice, they should remember that unions protect teachers’ working conditions and advocate for fair workloads, ensuring that quality educators stay in the classroom. A blow against the unions is a blow against the teaching profession itself.

Based upon Gorsuch’s previous record, special education advocates should also be skeptical of his commitment to defending the rights of students with special needs. On the 10th Circuit, Gorsuch held that under the federal Individuals with Disabilities Education Act (IDEA), a student with autism did not have the right to an education that would provide him with an opportunity to achieve the intellectual and social skills necessary to thrive outside the classroom.

Given that DeVos stated during her Senate confirmation hearing that she would not require states to enforce IDEA, Gorsuch’s track record may indicate that students with special needs could be without federal protection in the judicial branch, as well.

If confirmed to the Court, Gorsuch will also likely hear cases concerning school discipline and students’ constitutional rights in the classroom, but his views on this area of the law are contradictory at best. He notably dissented from a 10th Circuit ruling that upheld the constitutionality of a school resource officer arresting and handcuffing a 7th grader for disrupting class with fake burps. However, Gorsuch joined two other troubling decisions that ruled against students: one defending a school’s use of a “timeout room” to restrain a student with developmental disabilities, and another finding no excessive force in the case of a school resource officer who used an arm lock on a nine-year-old student suspected of stealing an iPad – before slamming the child against a wall and handcuffing him.

Mr. Gorsuch’s legal philosophy with regard to students’ and organized teachers’ rights is grounds for concern, and both our elected representatives and the education community have a responsibility to ask questions that will challenge him to give clear answers about where he stands. Senators also have the responsibility to categorically oppose Mr. Gorsuch’s confirmation if his positions prove to be incompatible with the standards of a high quality public education for all students and dignity and professional respect for educators.

Meet the Author
The burden of proof is on Mr. Gorsuch.

Max McCullough is a 10th and 11th grade world and US history teacher at City on a Hill Charter Public School in Roxbury and a member of Educators for Excellence.