A Supreme Court Shift to the Right

Before her nomination to the Supreme Court Saturday by President Donald Trump, and her time as a federal appeals court judge, Amy Coney Barrett was a popular law professor for 15 years at the University of Notre Dame, where one former colleague recalls her impact on one student in particular.

A brilliant first-year law student had been blind nearly since birth, said O. Carter Snead, a Notre Dame law professor specializing in bioethics. The university hadn’t given her the equipment she needed to read her texts, and the student went to Barrett asking for help.

“Judge Barrett replied, ‘This is no longer your problem. This is my problem,’” Snead recalled. “And Judge Barrett proceeded to straighten the matter out herself.” She mentored the student, who went on to become the first blind judicial clerk on the Supreme Court.

While former colleagues at the university describe Barrett's compassion, legal experts also see her appointment as potentially having far wider ramifications on the nation’s colleges and universities. And to her critics, those impacts could be far more hard-hearted than what she does in her personal and professional life.

At a time when the nation is confronting racial inequity, Barrett’s appointment could mean a shift to a more conservative court, which could narrow or end the consideration of race in admitting particularly Black and Latinx students to college.

Barrett’s appointment could lead to greater legal rights for those accused of sexual misconduct on campuses, and far more difficulty for college administrators to take action. Colleges could also become less financially liable for incidents of sexual assault or harassment.

Congress’s confirmation of Barrett to replace Ruth Bader Ginsburg, which appears likely, could also make it more difficult to impose requirements on student religious groups on campuses for discriminating against other students because of their beliefs.

Though her views on free speech and academic freedom are less known, some fear her appointment could also be a boost to groups who have gone to court accusing universities of stifling conservative viewpoints.

“Higher education is a microcosm of society. It’s a diverse place with different races, backgrounds and belief systems,” said William E. Thro, general counsel at the University of Kentucky and an education law scholar, of the range of legal battles affecting universities. “You have all the issues, from religious freedom, the First Amendment, race, and how we go about pursuing justice while ensuring the innocent go free, all coming to a head on university campuses.”

Though not as directly tied to higher education, a conservative court is seen as more likely throw out the Obama administration’s Affordable Care Act, which could jeopardize health care for college faculty and staff, including adjunct professors, said Barbara Lee, Rutgers University’s senior vice president for academic affairs and the co-author of several books on higher education law.

Progressive groups are expected to furiously fight Barrett’s nomination in the coming weeks. Barrett, who has written that she disagrees with the court's 2012 decision to uphold the Affordable Care Act, is expected now to help end the law. Colin Seeberger, a spokesman for one of those groups, the Center for American Progress, raises concerns the repeal of the health-care law would endanger college students who have health coverage under the law’s subsidies and a provision that lets them remain on their parents' insurance until they are 26.

Seeberger also worried the repeal of a provision in the law setting minimum standards for what health plans must cover could bring about the return of skimpy college student health plans.

A ruling by a conservative court relaxing restrictions on carrying concealed weapons, including on campuses, would bring new worries for campus administrators, noted Peter McDonough, vice president and general counsel for the American Council on Education.

“There have been too many shootings on campuses. There’d be a concern for administrators about safety and welfare on campuses,” McDonough said. The group, representing colleges and universities, is not taking a position on Barrett’s nomination, however.

The most immediate impact is expected to be over Obamacare’s fate. The Supreme Court is expected to hear oral arguments in a case that could overturn the law in November, shortly after the election.

But among cases directly related to higher education, legal experts said the consideration of race in admitting college students could be the first issue impacted by Barrett’s appointment.

A case that appears to be headed to the Supreme Court, a challenge to Harvard University's admissions policies, which claims they discriminate against Asian American applicants, is before the U.S. Court of Appeals for the First Circuit.

Three justices -- Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr. -- have explicitly or implicitly said that “obtaining the educational benefits of diversity” is not a justification for considering race in admissions.

Two others, Neil M. Gorsuch, and Brett M. Kavanaugh, are considered to be leaning toward ruling against the consideration of race but are less certain than the others, said Thro, general counsel at the University of Kentucky. Such a ruling would reverse recent Supreme Court decisions, mostly recently a 2016 case involving the University of Texas, upholding using race as a factor in admissions to create diversity.

While nothing definite is known about Barrett’s views on racial preference, Thro and others expect her to rule against its use in admissions, making her potentially a deciding fifth vote on the court, or a sixth vote to cement a ruling against racial preference.

Barrett has what’s known as an originalist view of the law, in which adherents believe the Constitution should be judged in the way it was seen by those who enacted it at that time.

The Chicago Tribune, for instance, noted that Barrett, while serving on the Seventh Circuit Court of Appeals in 2018, dissented in a ruling upholding the constitutionality of a Wisconsin law barring felons from having firearms. Barrett argued the law is unconstitutional because felons hadn’t been barred from having guns at the nation’s founding.

“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Barrett wrote in her dissent. “In 1791 -- and for well more than a century afterward -- legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

An originalist view of racial preference would look to how the 14th Amendment, granting formerly enslaved people citizenship and equal protection under the law, would have been viewed when it was ratified in 1868, Thro said. There was a recognition then that “it was necessary to give a preference to the newly freed slaves for a period of time, such as the never-kept promise to give freed families ‘forty acres and a mule,’ ” Thro said.

However, those ratifying the amendment did not mean to extend its use to promoting diversity, as it is being used to justify college admissions policies that factor in race, Thro said.

“Obviously, it’s not good” for those policies, said Kevin D. Brown, an Indiana University at Bloomington law professor who has written extensively on the intersection of race, law and education.

“This will be in many ways the end of an era,” Brown said. “It’s tragic especially in light of students demanding racial justice.”

But Edward Blum, founder of Students for Fair Admissions, the group challenging Harvard’s policies, said in an email, “In my experience, it is unwise to speculate how a justice will vote on a specific case or issue. It is our hope that if any of our cases reach the Supreme Court, the justices will end the use of race as a factor in admissions policies.”

Barrett’s appointment could have ramifications even before the Supreme Court takes up a case involving racial preference in admissions, said Law.

Colleges being sued for factoring race in their admissions policies would feel pressure to settle if a lower court ruled against them, she said. “They might be reluctant to appeal knowing if that they were to lose [and the case were to go to a conservative Supreme Court], it would affect the entire country,” she said

Better known than her views on affirmative action is an appellate court decision Barrett wrote last year in favor of a male Purdue University student, who claimed to have been sexually discriminated against when the institution suspended him for allegedly sexually assaulting a female student.

Brett Sokolow, president of ATIXA, an association of Title IX administrators, said Barrett’s opinion shifted how the courts view cases brought by those accused of misconduct

Traditionally, those suing universities have had to not only prove that the allegation of misconduct was wrong, but that the university took action against them out of gender bias, Sokolow said.

“It’s extremely hard to prove sex bias unless the university admits sex bias,” Sokolow said.

Barrett’s decision took a new approach -- that the plaintiff only had to prove that it was plausible that the university made the allegation because of bias.

In the Purdue opinion, Barrett wrote that the accused male student’s allegations of gender discrimination were plausible in part because of the pressure that the Obama administration applied to schools and universities to confront sexual harassment and assault.

Three other circuit courts around the country have adopted the approach. But others still take the traditional approach, which could mean the question is headed to the Supreme Court to decide, Sokolow said.

Colleges, when they are sued, will generally appeal if they lose in the lower courts. But if Barrett is appointed, they could decide instead to settle and drop the punishment against a student, Sokolow said.

Barrett’s appointment could have an impact on other cases involving the rights of those being accused of sexual misconduct on campuses.

The issue is controversial, particularly after Education Secretary Betsy DeVos’s new Title IX rule, which increases the due process rights of the accused in campus sexual assault cases.

“The next Supreme Court justice will likely play a pivotal role in determining whether schools are allowed to take meaningful action against sexual harassment,” said Elizabeth Tang, the National Women’s Law Center’s counsel for education and workplace justice, particularly when students accused of misconduct are more often deciding to sue their colleges.

In one case that could eventually reach the Supreme Court, a federal judge in Tennessee last year granted a temporary restraining order against Rhodes College, which had kept a student from graduating after being accused of raping a fellow student.

The U.S. District judge, John T. Fowlkes Jr., had ruled the accused may have had his due process rights violated because they could not question the alleged victim.

"To adequately assess credibility, which concerns both the accused and the accuser, there must be some form of live questioning of the accuser in front of the fact-finder; written statements of the accuser will not suffice," Fowlkes wrote in the decision.

Another case that could be headed to the Supreme Court involves the question of whether a university is liable for sexual harassment or assault on campus, or only if its failure to respond to one case leads to a second incident.

In the case, Emily Kollaritsch, one of four Michigan State University graduates who sued the university in 2015, said she had reported to university police that a male student tried to rape her in her residence hall. The man then sexually assaulted her inside Spartan Stadium.

The university decided that the male student had violated the institution’s sexual harassment policy but found he hadn’t sexually assaulted her. Kollaritsch said she suffered panic attacks when the university didn’t take action to protect her and allowed the man she accused to live in the same residence hall as her.

Circuit courts, though, are divided over whether universities are liable when a student is attacked or harassed, or only if their lack of action in a first incident led to another one.

Thro and Sokolow said a conservative court could decide institutions would be liable only if there’s a second incident.

“One incident isn’t going to be enough,” Thro said.

Barrett's Roman Catholic faith is also expected to receive scrutiny. Some of Barrett’s former Notre Dame colleagues also said they do not believe her faith will influence her views of the law.

"I think it is unfair that some people are using her religious beliefs as a reason to oppose her," said Notre Dame law professor Jeffrey Pojanowski. "The irony, of course, is that her approach to interpretation places a premium on finding out what a provision of the statute or the Constitution meant at the time it became law -- not what she thinks the law should have meant."​

Snead, who has known Barrett for 16 years, acknowledged in an interview, “I think her faith is quite important to her.” But he has noticed it “in the way that she treats others -- always with kindness, respect, honesty and warmth.”

Pojanowski recalled a time when his 3-year-old son, who is allergic to peanuts, had come into contact with peanut butter at a party.

“My wife was trying to give him his medicine, but he was thrashing and spitting it out, even as he was swelling up. Nobody around was paying attention, but Amy came over out of nowhere, calmed him, and got him to take his medicine while my wife held him,” he said.

Barrett “smiled, said, ‘Moms help each other out,’ and walked off into the crowd like nothing had happened,” Pojanowski said. “She's a brilliant judge and a kid whisperer.”

Rachel Laser, president and CEO of Americans United for Separation of Church and State, said in a statement that Barrett’s faith should not be held against her, saying, “A nominee's religious beliefs are not relevant; her position on church-state separation is.”

However, Laser said the group opposes Barrett’s appointment to the court, citing a number of opinions, which it said shows “she believes religious freedom can be used as a sword to harm others.” The group, in a report, cited a 2016 speech at Jacksonville University in which Barrett said Title IX sexual misconduct protections do not extend to transgender people.

Laser’s group has opposed a religious freedom rule on campus enacted by DeVos, which would among other things bar institutions from denying faith-based groups from the same privileges as other groups for such reasons as a faith-based groups keeping out gay students.

It’s unknown whether any such cases could be headed to the Supreme Court.

Tyson Langhofer, senior counsel and director of the Center for Academic Freedom at the Alliance Defending Freedom, a conservative Christian organization, declined to comment about Barrett. But he said one case, involving the right to espouse religious beliefs on campus, is scheduled to be heard soon by the court.

The 2016 case involves a Gwinnett College student, Chike Uzuegbunam, who, according to The New York Times, stood on a stool outside a food court espousing his beliefs. Though the area is in one of the small “free-speech” areas designated by the college, and the fact that he’d registered to speak there, campus police told him to leave.

The college later reversed its policy of limiting free speech only to certain areas. But Langhofer said that even if the college has already relented, Uzuegbunam is hoping the Supreme Court will rule that such policies are illegal.

“We need the court to say to other colleges that what they did was wrong. It sets a precedent,” Langhofer said.

However, Christina Sandefur, executive vice president at the conservative Goldwater Institute, said it’s unclear where Barrett stands on such free speech issues.

“Judge Barrett appears never to have used the phrase ‘free speech’ and the word ‘college’ in the same paragraph in her entire career,” Sandefur said in an email.

“She'd probably presume strongly in favor of university administrators in policing disciplinary matters, but she'd also be sensitive to the risks to free speech in today’s climate,” she said. “I think it’s just tough to say how things would change if she were appointed.”