Barrett’s SCOTUS confirmation would give conservatives a supermajority on education issues from race-based admissions to school choice, but could create a ‘desert for equity,’ experts say
Linda Jacobson | October 5, 2020
Amy Coney Barrett, President Trump’s pick to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is the product of a Catholic education who served as a trustee for a religious school participating in Indiana’s publicly-funded school choice program.
The background of the conservative federal appeals judge could draw scrutiny at a time when the nation’s high court is increasingly easing longtime barriers to private and religious schools receiving public funds.
In her relatively short stint on the Chicago-based 7th Circuit Court of Appeals, the Notre Dame law professor didn’t rule on many school matters. But her few opinions included a decision that sided with a Purdue University student accused of sexual assault in a Title IX case, and notably, voting with the majority against extending public school transportation services to a private school. While the Supreme Court has no cases directly related to education in its upcoming term, it’s growing conservative majority is widely expected in the coming years to issue decisive rulings on such issues as raced-based admissions, gay and transgender students’ rights and the limits of school choice.
Chief Justice John Roberts “loathes 5-4 decisions,” said Joshua Dunn, a professor of political science at the University of Colorado-Colorado Springs. “On some of these education issues, there’s a chance that she could pull Roberts into a 6-3 majority.”
Already this year, the court gave school choice advocates a victory in Espinoza v. Montana Department of Revenue, ruling 5-4 that excluding religious schools from a tax credit-funded scholarship program violates an individual’s First Amendment right to freely practice their religion. But legal experts agree the ruling left some questions unanswered at a time when at least three similar cases are pending in state and federal courts.
“There are going to be those who use Espinoza to leverage more school choice victories,” Dunn said. “I think there are going to be questions about whether a religious institution could run a charter school. You have to assume it’s coming.”
Barrett is a member of the conservative People of Praise organization, which runs Trinity Schools — a network of nondenominational Christian schools that teach “marriage to be a legal and committed relationship between a man and a woman.” She served as a trustee at Trinity School at Greenlawn, the South Bend school until 2017. The schools have “provided the foundation” for “more than a dozen public charter schools in Arizona, Texas, and Colorado,” according to the organization’s website.
‘A serious academic’
Describing herself as a “room parent, carpool driver, and birthday party planner,” during her nomination Saturday, the 48-year-old mother of seven said, “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
In his comments, President Donald Trump noted that Barrett would be the first justice with school-age children.
She also has life experience that could “make her sensitive” to some school issues, such as special education, said Gary Orfield, the director of the Civil Rights Project at UCLA. Her youngest child has Down syndrome and two of her children were adopted from Haiti.
But Orfield said her appointment doesn’t bode well for those arguing that students have a right to a basic level of education, as plaintiffs argued in a now-settled Detroit literacy case. A similar case in Rhode Island focuses on students’ claim that they should have a minimum level of civics education to participate as citizens in a democracy.
“Anybody who is trying to figure out how to get the federal courts to order more funding for public schools is not going to go anywhere with this kind of court,” Orfield said. “I think that lawyers looking for positive orders of this sort are going to turn to state courts or work on laws in Congress or state legislatures because a court with six extreme conservatives is likely to be a desert for equity.”
Orfield, a Catholic, said he has visited Barrett’s charismatic People of Praise church, near the Notre Dame campus, and described the service as “very emotional.” He criticized Democrat Diane Feinstein’s reference to Barrett’s “dogma” during her 2017 Senate confirmation hearings for the 7th Circuit.
“I think [Barrett] is a serious academic and she has a set of theoretical beliefs, and they shouldn’t just be defined as dogma,” Orfield said.
In the court’s upcoming term beginning Oct. 5, one case in which liberals would likely raise the issue of Barrett’s religious convictions is Fulton v. City of Philadelphia, Pennsylvania. The court will decide whether a public agency violated the First Amendment by requiring a religious organization to contradict its beliefs to receive a government contract. In the case, the city told a Catholic foster care agency that it couldn’t discriminate against same-sex couples who wanted to become foster parents, but the agency did not comply.
John Bursch, senior counsel at the far-right Alliance Defending Freedom — which has paid Barrett to deliver a lecture — said that the outcome of Fulton could affect an education case in Maryland. A Baltimore-area Christian school is suing Maryland state Superintendent Karen Salmon, arguing the state revoked its eligibility to participate in a voucher program because the school lacks a nondiscrimination policy that protects LGBTQ students.
“Both cases involve a government entity making false accusations of bigotry against a religious organization because of its beliefs about marriage,” Bursch said. “No religious school should be forced to give up its Biblical beliefs to participate in a government program that provides educational assistance to low-income students.”
By a decisive 7-2 vote, the Supreme Court this year also upheld the so-called “ministerial exception” that allows religious institutions to disregard the antidiscrimination policies that apply to secular organizations. The decision would be relevant in any future cases involving religious schools with anti-LGBTQ workplace policies that participate in school choice programs.
A ruling in favor of the plaintiffs in Fulton could also influence the outcome of cases involving LGBTQ students, such as those in which teachers cite religious objections when not referring to transgender students by their preferred names or pronouns, said Sharon McGowan, chief strategy officer and legal director for Lambda Legal.
“There is an ongoing assault against transgender students’ ability to use appropriate restrooms and participate in athletic programs,” McGowan said, adding that Barrett is “cut from the same cloth as Betsy DeVos,” who threatened in a letter to pull funding from Connecticut schools that allow transgender girls to compete as girls in track. The U.S. Department of Education’s Office for Civil Rights argues that having separate sports based on biological differences does not violate Title IX.
But the letter to the schools also references the Supreme Court’s 6-3 ruling this year in Bostock v. Clayton County, Georgia, which stated that Title VII protections against workplace discrimination include LGBTQ employees. Advocates like McGowan, and some school districts, argue that the ruling should now extend to schools. But Dunn, at the University of Colorado, noted that those wanting to keep the laws separate probably “feel better” than they did before Barrett’s appointment.
The Bostock decision also leaves the door open for future cases that deal more directly with transgender students’ bathroom use. With Trump nominee Neil Gorsuch writing for the majority, the opinion also showed that the president’s court picks don’t always rule the way his supporters prefer.
“Gorsuch shows that conservative justices will defy expectations,” Dunn said.
Other civil rights issues
Barrett’s 7th Circuit opinion last year in a sexual assault case involving Purdue University is under examination in light of pending Title IX cases that could reach the court. The appellate decision made it easier for men accused of sexual violence to sue their schools if they think they were unfairly treated. Several similar cases are currently pending at the circuit court level.
In one Title IX case that the Supreme Court could hear, a student who sued the Michigan State University Board of Trustees is trying to overturn an appeals court decision that found the accuser must prove that the school’s “inadequate response caused further actionable harassment.” The lower court’s decision, the petition says, conflicts with those in other circuits.
The higher education community is also closely watching a Harvard affirmative action case in which plaintiffs are challenging the university’s policy considering race in admissions. The Trump administration is supporting the plaintiffs in the case, which some expect to reach the Supreme Court and alter college admissions policies nationwide. Oral arguments before a three-judge panel in the 1st Circuit Court of Appeals were held earlier this month.
Dunn questioned whether conservative judges would want to set policies for private institutions, but added that it’s likely the “days are numbered” for affirmative action policies at public universities. The last time the Supreme Court considered race-based admissions was in 2016 in Fisher v. University of Texas, when it ruled that including race as one factor in admissions is constitutional.
At the K-12 level, the court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 ended the practice of using race as a deciding factor in admitting students to popular public schools. Dunn added that any future efforts to use race as part of a school admissions process would not be able to “survive the court’s scrutiny,” Dunn added.
‘Powerful interests’ backing Barrett
Labor organizations, including the powerful teachers unions, would also be “in for hard times” if Barrett is confirmed, Orfield said. Dunn added that some conservatives already think the Supreme Court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees, which determined that forcing public sector employees to pay union dues as a condition for employment violates free speech, hasn’t weakened unions as much as they’d hoped.
In a statement on Barrett’s nomination, American Federation of Teachers President Randi Weingarten targeted Barrett’s opposition to the Affordable Care Act’s earlier requirement that employers provide health coverage that includes birth control. A case on the health care law’s provision that individuals maintain a minimum level of coverage is also before the court this fall.
“[Barrett] was chosen because powerful interests know she’s on their side,” Weingarten said, adding that the judge “said publicly that provisions of the Affordable Care Act are an assault on religious liberty.”
In recent years, the unions have mounted a concerted effort to curb the growth of school choice options. While Barrett’s background is steeped in private schools, her membership in People of Praise is part of her personal, not professional life, stressed Leslie Hiner, the vice president of programs for EdChoice.
“But if she has knowledge of children who need educational options, that’s something I find important, and positive,” Hiner said.
Seventy-four students at Trinity School at Greenlawn participated in Indiana’s voucher program during the 2019-20 school year, according to an annual report. A second school is in Falls Church, Virginia, and a third is in Eagan, Minnesota. People of Praise also founded Praise Academy at Lakeside in a low-income community in Shreveport, Louisiana. It is not currently on the list of schools participating in the state’s scholarship program.
Litigation over similar private school scholarship programs is currently pending in lower courts.The Institute for Justice, a libertarian law firm that argued the Espinoza case, has a lawsuit in the 1st Circuit focusing on a Maine “town tuitioning” program that allows families without a school in their community to choose any public or private school. The state, by barring families from using the scholarship at a religious school, has said it is maintaining the separation of church and state.
The case, Carson v. Makin, was filed after the Supreme Court’s ruling in Trinity Lutheran Church of Columbia Inc. v. Comer, which determined that excluding the church’s preschool program from receiving playground resurfacing materials, simply because it was a church, was unconstitutional. That decision influenced the Espinoza ruling.
Depending on the ruling in Carson, the plaintiffs could appeal to the Supreme Court, said Tim Keller, senior attorney with the institute. But he added he has “no idea what they could be trying to say to get around Espinoza.”