What Higher Ed Needs to Know About the Supreme Court Nominee Amy Coney Barrett

As Amy Coney Barrett enters the process to succeed Justice Ruth Bader Ginsburg on the U.S. Supreme Court, much attention will be devoted to Barrett’s potential support for overturning Roe v. Wade and upending abortion laws nationwide. But if Barrett, a federal judge who was widely reported late Friday to be President Trump’s nominee, is confirmed, her track record also suggests implications for higher education. Trump’s official nomination is expected on Saturday.

Barrett, a judge on the U.S. Court of Appeals for the Seventh Circuit who has taught at the University of Notre Dame for close to two decades, wrote a consequential decision last year that makes it easier for students to allege anti-male bias when they’re punished for sexual misconduct.

Barrett, 48, once clerked for the late Supreme Court justice Antonin Scalia. Like Scalia, Barrett believes that courts should interpret the U.S. Constitution according to its “original public meaning” — in other words, how the founders would have intended it in the 18th century.

How has Barrett’s academic career shaped her ascent to nominee for the nation’s highest court, and how could a Justice Barrett affect higher education? Here are three things to know:

1. Notre Dame professors reportedly groomed her for a seat on the Supreme Court.

Barrett graduated from Notre Dame’s law school in 1997 and was hired as a professor there in 2002. Her journey from Notre Dame to a potential spot on the Supreme Court was reportedly planned and promoted by a group of law professors at the university who aimed to point the nation’s courts in a more conservative direction.

That’s according to Politico, which described the group of scholars as “part of a growing legal movement opposed to the secularization of American society generally and to the Supreme Court’s Roe v. Wade ruling in particular.” Former Notre Dame faculty members, who worked alongside Barrett and her mentors, told Politico that the group identified Barrett more than 25 years ago, when she was a first-year law student, as someone who could help conservatives achieve their goal of packing the Supreme Court with right-leaning justices.

During her tenure at Notre Dame, her work on constitutional law and statutory interpretation “has made a wide and broad impact on her field,” said O. Carter Snead, a professor of law at Notre Dame who’s known Barrett for 16 years, in an email.

Snead, who also directs the De Nicola Center for Ethics and Culture, said she is “universally loved and admired” by colleagues and students. She has been selected three times by the law school’s graduating class as “Distinguished Professor of the Year.” And when Trump nominated her to the Seventh Circuit Court of Appeals, in 2017, every full-time member of the law school’s faculty signed a letter endorsing her.

“The same impressive intellect, character, and temperament that made Professor Barrett a successful nominee for the U.S. Court of Appeals would serve her equally well as a nominee for the nation’s highest court,” Notre Dame’s president, the Rev. John I. Jenkins, said in a recent statement.

2. Her academic publications and speeches make clear her strong Roman Catholic convictions and her beliefs about how courts should interpret the law.

Several of Barrett’s academic articles wrestle with the question of what to do about legal precedents that may conflict with the Constitution’s original meaning. In one publication, she discussed how difficult it was for the Supreme Court to overturn precedents deemed by some justices to be “wrong.”

Some observers have cited her writings and remarks as evidence that she’d support overturning the landmark abortion ruling Roe v. Wade. The Alliance for Justice, a progressive legal-advocacy group, put it this way: “It would be hard to overstate the degree to which Barrett’s academic work has been tailored to dismantle Roe v. Wade.

Barrett’s stances and willingness to revisit precedents could also bring about fresh challenges to affirmative-action policies in college admissions, which the Supreme Court last upheld in 2016, and to Deferred Action for Childhood Arrivals, or DACA, said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. In June the court preserved the DACA program, which allows thousands of undocumented college students to live temporarily in the United States, but left the door open for the Trump administration to try again to end it.

With a 6-to-3 conservative majority on the court, Lake said, “half a century” of higher-ed law could be up for review.

Lake said he’d expect Barrett to support expanding First Amendment protections for religious colleges. “The big question is, Are we going to enter an era where religious colleges get a certain level of pass from certain federal laws that other nonsectarian private schools don’t get?” he said.

Critics have questioned whether Barrett would allow her religious beliefs to taint her judgment. They point, for instance, to her 2006 speech at Notre Dame’s law-school commencement, in which she endorsed the idea that Notre Dame, a Catholic university, educates “a different kind of lawyer.” She defined that as: “Your legal career is but a means to an end, and as Father Jenkins told you this morning, that end is building the kingdom of God.”

During a confirmation hearing on her nomination to the Seventh Circuit, Barrett denied that her personal beliefs would influence her decision making. Snead, her Notre Dame colleague, said people had misunderstood the meaning of her speech. “She simply meant that the law is not merely a means to fame or money,” he said.

3. Her 2019 ruling in a Title IX case handed a victory to students accused of sexual misconduct — and a blow to colleges.

Barrett was part of a three-judge panel that cleared the way for a Title IX lawsuit against Purdue University to move forward. The suit was brought by a male student who had been found to have committed sexual misconduct, suspended for a year, and expelled from the Navy ROTC program.

Barrett wrote the opinion, which didn’t conclude whether the student’s allegations were true but determined that, based on the facts he had presented, Purdue could have discriminated against him because he was a man, as well as violated his due-process rights.

Barrett’s ruling lowered the bar for accused students to assert that they had been the victims of anti-male bias under Title IX, the federal gender-equity law, said Josh Richards, a lawyer and Title IX expert. That standard — whether it’s “plausible that the university discriminated on the basis of sex” — is so low, he said, that it’s “nearly impossible” for colleges to fight off such lawsuits right away, even if the suits are baseless.

“It has really become an ingrained part of the culture at this point, in terms of the relationship between a university and their students,” Richards said. “When, as a student, you are accused of serious misconduct, it’s no longer the exception but the rule that you sue your institution.” He called the trend “concerning.”

Barrett’s opinion also noted that pressure by the U.S. Education Department on colleges to take sexual assault seriously could serve as evidence that Purdue had discriminated on the basis of sex. In other words, because college and university officials were under the gun to tackle sexual assault during the Obama administration, they could have felt pressure to favor the woman’s side of the story in this case.

The opinion, Richards said, gives higher ed “an indication on how one justice would be likely to rule” if Barrett is confirmed and the court takes up a similar case.

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