3 issues to watch if Trump's Supreme Court nominee is appointed

Affirmative action, religious freedom, and transgender student rights could see change

On Tuesday night, President Trump nominated Neil Gorsuch to fill the vacant seat on the U.S. Supreme Court

Writing for the Chronicle of Higher Education, Eric Hoover weighs in on what the appointment could mean for higher education.

Gorsuch's background is similar to that of current justices, Hoover notes. Gorsuch graduated from Columbia University, then went on to earn law degrees from Harvard University and the University of Oxford. He's taught classes at the University of Colorado Law School in ethics and antitrust.

Gorsuch's approach to interpreting the Constitution has been described as "orginalist," and legal experts have likened him to the late Justice Antonin Scalia, whose seat Gorsuch would be replacing if confirmed by the Senate. Hoover describes Gorsuch as a "deep-red" conservative.

In terms of Gorsuch's approach to legal matters on college campuses, Hoover notes that forecasting is complicated by predicting which cases might come before the Supreme Court and how society will change.

Nevertheless, he argues there are three particular issues to watch if Gorsuch makes it to the court.

1. Affirmative action

The court's most recent case related to affirmative action created a "Catch-22" for colleges, says Neal H. Hutchens, professor of higher education at the University of Missouri.

In the Fisher v. University of Texas case in June 2016, the Supreme Court declared it constitutional for the institution to use race-conscious admissions.

Colleges that use similar policies collect data to demonstrate the policies are effective and necessary—but they are not allowed to set racial quotas for admission, which are illegal.

"Opponents of affirmative action will continue to try to take advantage of that pressure point," says Hutchens.

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2. Religion on campus

Gorsuch has cast votes in high-profile cases about the rights of religious groups, where he "has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents," according to a SCOTUS blog post by Eric Citron, a lawyer and former clerk for two Supreme Court justices.

Citron argues that Gorsuch's rulings in these cases demonstrate his commitment to the conservative interpretation "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."

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The issue of religious freedom is pertinent to college campuses, where religious diversity is getting more attention.  In 2010, the Supreme Court considered Christian Legal Society Chapter v. Martinez, which asked whether campus religious groups have the right to refuse members who don't adhere to their beliefs.

3. Transgender student rights

The justices have already agreed to hear at least one case about transgender students' right to use bathrooms and locker rooms of their choice. However, the case involves guidance from the Obama administration, which the Trump administration could potentially walk back. If this happens, the justices may change their minds about hearing the case, says Citron. 

But more cases on transgender student rights are likely to appear, according to Adam Winkler, a law professor at the University of California, Los Angeles. "Transgender rights [are] definitely going to come back up," he told Politico. "That issue is not going to go away" (Hoover, Chronicle of Higher Education, 2/1; Gerstein, Politico, 2/1).

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