\n<\/p>\n
As the Supreme Court begins its new term this week, legal experts predict that higher education will be a frequent subject for the justices. Yet only two college-related cases\u2014both of which center on transgender rights\u2014are currently listed on the main docket.<\/p>\n
That\u2019s in large part because of a less formal but increasingly popular second list of cases known as the shadow docket. <\/p>\n
Historically, the shadow docket, also called the emergency docket, was used on rare occasions for just that\u2014emergencies. In situations when the lack of a ruling from the highest court could lead to immediate, irreversible consequences, this alternate route allowed the justices to move quickly and issue an interim decision without going through traditional processes such as briefings, oral arguments or written opinions. But over the course of the past three administrations, use of this secondary docket has skyrocketed, creating a lack of predictability and an immense sense of uncertainty for the public. <\/p>\n
Normally, it can take months for a case\u2019s petition to be processed, and then once a case is on the docket it can take even longer for it to be heard and ruled upon. This leaves the parties directly involved\u2014and all who may be affected by the decision\u2014time to prepare and create contingency plans for the potential outcomes. But when the shadow docket is used, cases can be introduced and receive a ruling in a matter of weeks, if not days, often without any explanation. <\/p>\n
Higher education institutions have already seen the repercussions this can have: Using the shadow-docket process, SCOTUS has overturned lower-court rulings on critical issues including the continuation of federal research funding and major cuts to staffing at the Department of Education.<\/p>\n
\u201cSome of these are existential issues about whether universities can continue to function in the way in which they functioned for the past half century,\u201d said former Brandeis University president Fred Lawrence, a higher education legal expert and distinguished lecturer at Georgetown Law. \u201cIf erring on the side of caution means shutting down your research operation, then you are unrecognizable to yourself. So it creates a very, very difficult situation for higher education to function.\u201d <\/p>\n
While it remains unclear how and when various cases will reach the Supreme Court, Lawrence and others say they have a fairly good idea of what those cases will likely concern. Issues including visa policies for international students and scholars, First Amendment rights, academic freedom, and federal funding are likely to be on the line.<\/p>\n
Here\u2019s a quick summary of the cases\u2014on and off the main docket\u2014that experts say colleges and universities should keep a close eye on.<\/p>\n
On the first day of his second term in office, President Donald Trump signed an executive order banning \u201cgender ideology\u201d and declaring that the government would only recognize two sexes, male and female. Less than a month later, he signed a second order banning transgender women from participating in women\u2019s sports.<\/p>\n
For now, both declarations\u2014and their implications for collegiate sports\u2014are up for consideration by the highest court through two cases, West Virginia v. B.P.J and Little v. Hecox. <\/p>\n
Though the former concerns a transgender girl in high school and the latter a transgender woman at Boise State University, the cases are otherwise largely the same. Both involve runners who attempted to participate in track and cross-country but were barred from doing so by state law. And up until a little over a month ago, both were set to be heard before the court at some point this term.<\/p>\n
But on Sept.\u00a02 Hecox filed a motion urging the Supreme Court to dismiss her case. In the six-page filing, Hecox\u2019s lawyers explained that due to illness, her father\u2019s recent passing and the \u201cnegative public scrutiny\u201d stemming from the litigation, she no longer wished to participate in women\u2019s sports, rendering the case moot.<\/p>\n
Still, given the court\u2019s conservative supermajority and their penchant for siding with the Trump administration, some wonder if Hecox\u2019s plea to the court is an attempt to avoid an unfavorable final decision. (Hecox won her case at both the district and circuit court levels.)<\/p>\n
Jill Siegelbaum, a former assistant general counsel at the Department of Education and now a partner at Sligo Law Group, said that she understands both the theoretical idea that Hecox could be fearing a loss and the more personal rationale for dismissing the case.<\/p>\n
\u201cEvery single attorney involved in that case is well aware of who is sitting on the court and the decisions that the court has recently made in the area of transgender rights,\u201d she said. \u201cBut I can also say that on its own, simply the fear for her emotional, physical and mental health that would come from further publicity about this case\u00a0\u2026 would certainly be, in my opinion, a reasonable basis for withdrawing.\u201d<\/p>\n
So far, it\u2019s unclear whether the court will respect Hecox\u2019s request. But even if the case were dismissed, Siegelbaum and others said, West Virginia v. B.P.J., will almost certainly remain, eventually leading to a ruling on the same overarching issue\u2014interpreting Title\u00a0IX\u2019s equal protection clause. <\/p>\n
Sarah Hartley, a partner and co-chair of the higher education team at BCLP, a law firm headquartered in St. Louis, stressed that regardless of the outcome, the ruling\u2019s implications for colleges and universities could be influenced by what questions the justices ask and how they write their opinions.<\/p>\n
\u201cDepending on how the decision is worded, it could have broader impacts than just sport. It could address bathrooms, locker rooms\u2014any number of different things that Title\u00a0IX and other antidiscrimination laws historically have protected,\u201d she said. <\/p>\n
Hartley added that in her view, lack of access to even recreational activities could be a major blow to the mental health of an already \u201chighly marginalized community.\u201d<\/p>\n
\u201cImagine it affecting your club sports at universities or in high schools, or in gym class when there\u2019s any sex segregation,\u201d she said. \u201cAs someone who\u2019s particularly concerned with the access to sport because of all the positive impacts it can have, I think the trickle-down effect\u00a0\u2026 will be a big deal.\u201d<\/p>\n
Higher education legal experts are also keeping a close eye on the shadow docket, as well as on cases that were already addressed on the emergency docket, were sent back to the lower court and now are steadily working their way back up to the Supreme Court for a final merit ruling.<\/p>\n
Jessica Ellsworth, a partner at Hogan Lovells and adviser for the American Council on Education, said she thinks the shadow docket cases are the ones that have a \u201creal impact\u201d on higher education. <\/p>\n
She added that multiple stays have already been granted on issues like Trump\u2019s ability to terminate congressionally appropriated funds, slash government agencies\u2019 staffs and tighten immigration policies that affect college enrollment. In doing so, the Supreme Court blocked injunctions from the lower courts, allowing the Trump administration to carry out policies before the justices have fully analyzed the facts of the case, considered friend-of-the-court briefs or heard the arguments of each party.<\/p>\n
Moving forward, \u201cI suspect that we will see First Amendment challenges make their way to the court related to ongoing efforts by the administration to force changes across universities and use threats of cutting off funding to compel those changes,\u201d Ellsworth said. \u201cAs a result, it\u2019s important for higher education to keep an eye on both the merits and emergency docket for the foreseeable future.\u201d <\/p>\n
Hartley from BCLP noted that transgender rights issues are also on the shadow docket through the case Trump v. Orr, which weighs a transgender or nonbinary individual\u2019s ability to obtain a passport that matches their gender identity. If this ruling is interpreted to extend to IDs beyond passports, it could lead to all kinds of inconsistency between gender presentation and government identification, creating significant hurdles for many university operations, she said.<\/p>\n
\u201cYou could see complaints that a student who\u2019s male presenting is living in a female dorm, which could then give rise to invasive investigations and force a student to disclose things that they might want to make otherwise private,\u201d she explained.<\/p>\n
And while any number of these cases could eventually make it back to the Supreme Court for a final ruling, Lawrence from Georgetown said it\u2019s too soon to predict what will make the cut; just a week into the new term, \u201cthe Supreme Court has barely put together its docket for the year,\u201d he said. <\/p>\n
But even if these issues do make it back for a full merit review, he added, it may be too late. So far, the Supreme Court has struck down the injunctions blocking Trump from carrying out his policies on every higher ed case that has reached the shadow docket. And in many cases, he said, doing that is like allowing a development company to tear down a historic home before a court has ruled on whether it sits on protected land. Even if the court eventually rules that the property should have been shielded, once the house is gone, it will be impossible to restore.<\/p>\n
\u201cIf you don\u2019t provide that temporary remedy, then there may be no point to a remedy at all,\u201d Lawrence explained.<\/p>\n","protected":false},"excerpt":{"rendered":"
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