Legal

What Trump’s Supreme Court Choice Might Mean for Higher Ed

February 01, 2017

Alex Wong, Getty Images
Judge Neil Gorsuch speaks at the White House on Tuesday night after President Trump nominated him to succeed the late Antonin Scalia as a justice on the U.S. Supreme Court. If confirmed by the U.S. Senate, Judge Gorsuch could help shape academe for decades to come.
What happens on college campuses often depends on what men and women in black robes decide. So anyone with a stake in higher education had good reason to tune in on Tuesday night and see who President Trump would choose to fill the U.S. Supreme Court’s long-empty seat. The answer: Neil M. Gorsuch, a conservative federal appellate judge who, if confirmed by the Senate, just might help shape academe for decades to come.

During a prime-time news conference, President Trump announced Judge Gorsuch, of the U.S. Court of Appeals for the 10th Circuit, in Denver, as his choice to replace Antonin Scalia, who died last February. Mr. Trump said his nominee possesses "outstanding legal skills, a brilliant mind, and tremendous discipline."

Far from a maverick pick, Judge Gorsuch, 49, has a pedigree similar to that of the sitting justices. He graduated from Columbia University in 1988 before earning law degrees from Harvard University and the University of Oxford, where he was a Marshall Scholar. Since 2008 he has taught ethics and antitrust law at the University of Colorado Law School.

As described by one legal expert, he is known as a keen thinker who writes compelling opinions "with a flair that matches — or at least evokes" — that of Justice Scalia. Recently, researchers attempted to measure the "Scalia-ness" of likely nominees; Judge Gorsuch, who believes in an "originalist" interpretation of the Constitution, topped the list.

What that might mean for higher education down the line is hard to say. Predicting how a justice will vote can be a tricky exercise. Societal circumstances change, and so, too, might the gears of a justice’s mind. And nobody can ever know for sure which cases the Supreme Court might accept, or what the mix of justices might be months or years from now.

Still, a deep-red conservative is poised to join a divided court that will continue to weigh many of the same questions that colleges are grappling with. Perhaps none is thornier than how best to recognize and support many facets of diversity in a way that’s fair to all. What happens on a diverse campus when one student’s rights seem to infringe on another’s?

Often lawsuits arise. Those challenging the constitutionality of admissions programs at selective colleges surely aren’t going away despite the court’s recent ruling on the use of race in accepting applicants. Even so, Judge Gorsuch might not get a chance to consider such a case anytime soon.

‘A Catch-22’

Last June affirmative-action supporters celebrated a victory in Fisher v. University of Texas at Austin. In a 4-to-3 vote, the Supreme Court upheld the constitutionality of the institution’s race-conscious admissions program. Justice Anthony M. Kennedy, who cast the swing vote and wrote the majority opinion, had never before upheld such a policy. And Justice Elena Kagan, who recused herself, almost certainly would have sided with the majority.

Given the court’s ideological makeup, many legal experts don’t expect the justices to take up another affirmative-action case right away, especially if no other seats open up. "It all may depend on how many appointments Trump is able to make," said Neal H. Hutchens, a professor of higher education at the University of Mississippi. "As soon as he has that second appointment, though, I would say all bets are off on affirmative at that point."

Until then, Mr. Hutchens, who serves on the Education Law Association’s Board of Directors, believes the Fisher decision puts colleges in something of a bind. "It’s a Catch-22," he said. "Colleges have been told they can’t use a quota, but that they have to use a lot of data to establish that their race-conscious policies are effective, so that it’s not too vague. Opponents of affirmative action will continue to try to take advantage of that pressure point."

In the post-Fisher era, colleges and universities must do their homework, by compiling their own data on specific outcomes related to diversity policies. "The case isn’t just about what the student body looks like — it’s about knowing whether students are obtaining the benefits of diversity," said Terri Taylor, senior legal and policy adviser at EducationCounsel LLC, a firm that advises colleges. "So that means connecting what’s happening in the admissions process and connecting it to students’ experience on campus. Universities haven’t always brought that together in a really organized way."

Race-conscious policies are under challenge in lawsuits against Harvard University and the University of North Carolina at Chapel Hill. Both suits differ from previous legal critiques by alleging that Asian-American students are victims of discrimination. "These are bolder cases," Ms. Taylor said. "They’re not relying on a single plaintiff, but on a whole class of students. They’re also saying, going back to Bakke, that previous [affirmative-action] cases weren’t rightly decided because the court assumed good faith on the part of institutions."

Those cases are in different circuits, and split rulings are possible. "Those are things the Supreme Court likes to take on," Ms. Taylor said. "But since those cases are still in discovery, it’s hard to know how it might shake out."

Religious Diversity at Issue

Race, of course, is but one form of campus diversity. The court might also consider more cases that hinge on questions of religious freedom. In Christian Legal Society Chapter v. Martinez, the Supreme Court in 2010 ruled that — in accordance with state law barring discrimination on several bases, including sexual orientation — a public university did not violate the First Amendment by declining to officially recognize a Christian student group that limited membership to those who shared its beliefs.

“That colleges could impose these kinds of restrictions have gotten under the skin of conservative groups.”
"That colleges could impose these kinds of restrictions have gotten under the skin of conservative groups," Mr. Hutchens said. "They believe these student organizations are being denied their First Amendment rights in having to accept members who don’t adhere to their beliefs." Especially if the court tilts to the right, he said, more legal challenges to such policies are likely to emerge.

Ms. Taylor agrees. "A lot of folks on campuses are increasingly wondering about religious diversity," she said. "Whether it’s Christians or Muslims, they’re grappling with how to make sure campuses are being welcoming to people from all religions."

Judge Gorsuch has cast votes in several high-profile cases involving religious freedom. He "has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents," Eric Citron, a lawyer who clerked for two Supreme Court justices, wrote on Scotusblog in January.

He 'has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents.'
"The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion — and can accommodate deeply held religious views — without either violating the religion clauses of the Constitution or destroying the effectiveness of government programs that occasionally run into religious objections."

One case the Supreme Court has already agreed to hear concerns the rights of transgender students, now a major policy concern on college campuses. The justices plan to weigh a Virginia school district’s challenge to federal guidelines that would require schools to allow transgender students to use the bathrooms and locker rooms of their choice. Some court watchers suspect that the Trump administration will roll back the Obama administration’s guidance, perhaps rendering the case moot.

Either way, the substantive question the case raises isn’t going away. "All these cases speak to the bigger challenges universities are dealing with," Ms. Taylor said. "It’s important for colleges to think not just about what the Supreme Court makes them do, but about all the different groups they want to serve on campus and ways they might be able to do that more equitably."

Eric Hoover writes about admissions trends, enrollment-management challenges, and the meaning of Animal House, among other issues. He’s on Twitter @erichoov, and his email address is eric.hoover@chronicle.com.