No Stranger to Higher Ed

Sonia Sotomayor, a federal appeals judge nominated to the U.S. Supreme Court Tuesday, has kept a hand in higher education throughout her judicial career, and has also ruled in several cases that affected academe.

Sotomayor, who has served since 1998 on the U.S. Court of Appeals for the Second Circuit, began her college career at Princeton University, graduating summa cum laude in 1976. President Obama pledged to nominate a person of “empathy” to the bench, and Sotomayor’s own descriptions of her Princeton days describe her struggles fitting in at the Ivy League institution.

“Princeton was an alien land for me,” she told Hispanic Outlook in Higher Education in 2002. “I felt isolated from all I had ever known, and very unsure of how I would survive.”

Sotomayor went on to tell the magazine that she relied on clubs and programs for minority students as “an anchor” to ground herself in a “new and different world.” She went on to Yale Law School, from which she graduated in 1979.

Sotomayor has held faculty positions at the law schools of Columbia University and New York University, and issues tied to academe have also been argued in her courtroom. In one such case, Sotomayor sided with a dyslexic woman seeking extra time to complete the New York bar exam. The Second Circuit court was asked to reconsider the case after the U.S. Supreme Court ruled that people who treat disabilities with medication or other measures are not protected under the Americans With Disabilities Act. Even in the presence of that ruling, however, Sotomayor found the plaintiff was still protected under the ADA.

The plaintiff, Marilyn Bartlett, had developed techniques to improve her reading ability, including tracing her finger below text to keep her place, according to court documents. Even so, the Second Circuit found she was entitled to extra time.

“Just as a person in a wheelchair can use an above-ground entrance to gain access to a building if a ramp is available, an individual with a learning disability can draw meaning from high level text if she is allowed the time she requires to slowly decipher each word,” the ruling states. “To such an individual, time is her ramp. The record demonstrates that Bartlett’s achievements thus far have come as a result of extraordinary efforts not required by individuals without disabilities. She should not be excluded from the protections of the Act because of accomplishments made despite her disability.”

The ADA Amendments Act of 2008, which took effect in January, provided that most mitigating measures don’t have a bearing on whether a person qualifies for protections, rendering moot some of the issues the Bartlett case explored. Nonetheless, the case provides some glimpse into how Sotomayor might rule in disability cases, which often have an impact on higher education, according to Barbara A. Lee, co-author of The Law of Higher Education.

“Clearly if she was in the group of people who felt Ms. Bartlett deserved to be accommodated, [that] suggests she would have a sympathetic approach for individuals with disabilities,” said Lee, a professor of human resource management at Rutgers University. “And that would be helpful for students and for employees.”

Sotomayor has also written opinions on copyright law, an area of increasing relevance to academe in the digital age. In 1997, she ruled that publishers could reproduce freelancers’ works electronically without permission from the writers. The ruling in New York Times v. Tasini, however, was overturned by the U.S. Supreme Court.

The Supreme Court announced in March that it may again revisit the Tasini case, which has had a significant impact on the inventories of electronic databases that house academic journal articles. Xiaotian Chen, an electronic services librarian and associate professor at Bradley University, said academe would have been better served if the Supreme Court had simply let Sotomayor’s ruling stand. Rather than paying freelancers, database operators deleted their works in many cases -- a resolution that served no one, Chen said.

“What the Supreme Court decided makes everybody a loser,” said Chen, who has written about the ruling’s impact. “The authors did not get what they wanted; instead the database owners deleted articles by those authors.… The biggest losers are us, the users, because it was deleted.”

While she has not ruled on the hotly contested issue of affirmative action in the context of higher education, Sotomayor has weighed in on discrimination and high stakes testing. In Ricci v. DeStefano, the Second Circuit court ruled that city officials in New Haven were justified in abandoning a test that had been used for promotions of firefighters. African Americans had failed the test disproportionately, prompting the city to throw it out.

Opponents of Sotomayor's nomination, and the use of race based preferences, have been paticularly critical of the decision. The U.S. Supreme Court announced in April that it would take up the case, which was brought by 17 white firefighters who alleged discrimination.

Personal Story Draws Praise

Apart from her legal qualifications, supporters of Sotomayor have touted her personal story. Sotomayor, 54, was born to Puerto Rican parents and grew up in a public housing project in the Bronx. If confirmed, she would be the Supreme Court’s first Hispanic justice.

President Obama said early on that he wanted to nominate a person who would bring "empathy" to the position, providing an early clue that he'd seek a person who had firsthand experience with struggles shared by the immigrant community or minorities. Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston, said Sotomayor background gives her “empathy in spades." As for how that background and her judicial philosophy might serve colleges and universities, Olivas said he’s comfortable with what he’s learned thus far about the nominee.

“I certainly think she has impeccable credentials,” said Olivas, a law professor. “And as a higher education advocate and higher education employee, I’d be glad to see her [rule] in any case.”

Some of the earliest criticisms of Sotomayor have been the result of comments she made on a college campus. In 2005, speaking at Duke University Law School, Sotomayor said “the Court of Appeals is where policy is made.” Clearly aware of the controversy inherent in the statement -- conservative critics often criticize “activist” judges for trying to make law -- Sotomayor added “I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know.”

Sotomayor’s experience in higher education, however, isn’t limited to guest appearances on campuses or her time as a student. She is a trustee at Princeton, and she has also held two academic positions: she served as an adjunct professor at New York University School of Law from 1998 to 2007, and she has been a lecturer at Columbia Law School since 1999.

While at New York University, Sotomayor taught several courses, including trial and appellate advocacy. That course walked students through “the critical stages of a case from the inception through the appeal,” according to a course description. At Columbia, Sotomayor oversaw federal appellate court externships, which provided students with an opportunity to assist in legal research, university officials said.