Editor: The following article was published by the National Education Policy Center (NEPC), a university research center housed at the University of Colorado Boulder School of Education. http://nepc.colorado.edu We thank them for permission to reprint this article for our readers.
Amy Coney Barrett and Education:
Where Does She Stand?
With the
memory of Merrick Garland’s thwarted nomination resonating and the rank
hypocrisy fouling the Senate air, Senate Majority Leader Mitch McConnell and
his colleagues quickly ushered then-judge Amy Coney Barrett through a
performative confirmation process. The U.S. Supreme Court’s newest member will
soon begin to rule on cases with the potential to affect generations of
students, teachers, and schools. Barrett’s writings, positions, and track
record so far suggest that her education-related decisions may be the
antithesis of those of her predecessor, the late Ruth Bader Ginsburg, who was known for supporting LGBTQ rights, appreciating the separation of church and
state, and developing jurisprudence advancing gender equity.
Unlike
Ginsberg, a graduate of New York City’s school system, Barrett has limited
personal experience with public education. A graduate of a Catholic girls’
school in Louisiana, she has also sent her own children to religious schools.
For nearly three years, she served on the board of trustees of a network of
private, Christian schools that discriminated against LGBTQ parents, students,
and employees.
During her
Senate confirmation hearings, Barrett said that she had “been nominated to fill
Justice Ginsburg's seat, but no one will ever take her place.” Barrett will
indeed be a very different judge, including in the realm of education. She
described Espinoza v. Montana Department of Revenue (a 2020 U.S. Supreme Court
decision that required the state to allow public fiscal support for religious
schools even though its constitution banned the practice) as an example of the
court’s view that “religious institutions cannot be discriminated against or
excluded from public programs simply because they are religious.” And she
called Brown v. the Board of Education a “super precedent” that would be
“unthinkable” to overrule, even though an article she coauthored notes that
full adherence to her doctrine of originalism (strict adherence to the original
meaning of the constitution’s words) would require its reversal. Barrett has
also publicly expressed doubt that Title IX protects transgender students who
want to use school restrooms or locker rooms that align with their gender
identities.
As a judge
appointed by President Donald Trump in 2017 to the Court of Appeals for the
Seventh Circuit, Barrett has been involved in several notable decisions
involving education. Here’s a sample, culled from an article in Education Week:
Doe v.Purdue University (2019) was filed by a male former student at Indiana’s Purdue
University, which had suspended him for a year after he was accused of sexual
violence, leading to a discharge from the ROTC and the loss of a related
scholarship. Barrett’s opinion, in favor of the student, concluded that he was
“denied an educational benefit on the basis of his sex” because of a
fundamentally unfair hearing and decision process that was biased in favor of
the female accuser. Since that time, U.S. Secretary of Education Betsy DeVos
has taken steps to further protect the due process rights of students accused
of sexual misconduct. “Many universities and advocates for survivors of sexual
assault state that these changes will make it harder to convince people to come
forward and file reports, as the new guidance offers little protection and
support for survivors of sexual assault,” NEPC Fellow Elizabeth Meyer said last
year in an interview for this newsletter.
Consider
also two cases concerning alleged discrimination based on the plaintiff’s
disability. In both cases, Barnett signed onto opinions affirming the granting
of so-called summary judgment (dismissing the lawsuit because the plaintiff is
not entitled to win based on the facts that the plaintiff does not dispute). In
Grussgott v. Milwaukee Jewish Day School (2018), the plaintiff was an
instructor at a Jewish private school. The panel held that the school was
protected by a “ministerial exception,” based on a 2012 Supreme Court case that
found that churches were exempt from discrimination claims made by their
ministers.
In P.F. v.Taylor (2019), Barrett joined her colleagues in rejecting claims of Wisconsin
students with disabilities who had unsuccessfully attempted to use the state’s
open enrollment laws. The students were denied transfers to new school
districts because those new districts said they could not meet the students’
needs. Wisconsin’s open enrollment statute, in fact, allows for denial of
transfer requests by special education students due to capacity – specifically
the availability of the needed “program or services” in new district. Students
with disabilities have often faced discrimination or denial of services when
they have tried to participate in school choice. But the Seventh Circuit panel
of judges reasoned that the Wisconsin program denies services based on a
district’s capacity to serve a given student with a disability (allowed) rather
than denying admission by reason of the disability (not allowed).
