During the third day of Judge Neil Gorsuch’s Senate confirmation hearing, the U.S. Supreme Court issued a ruling on a Colorado case involving an autistic teenager and the quality of education he received in the Douglas County School District. The ruling rejected a key standard that Gorsuch had observed in previous decisions, and proved to be an unexpected way to keep the Colorado judge on his toes.
In a unanimous decision, the high court sided with the student and his family in Endrew v. Douglas County School District. The case sought to determine what level of education a disabled student is entitled to under the Individuals with Disabilities Act -- also known as IDEA. The suit was brought after Endrew’s parents failed in an earlier legal challenge in which they sued DougCo to be reimbursed for private school tuition, claiming DougCo was not meeting their son’s needs.
The standard cited by the lower courts’ rulings in this case is known as de minimis -- the bare minimum, or little more. In fact, that was one of the factors in the 10th Circuit Court of Appeals’ ruling, written by Gorsuch’s colleagues on the court.
While Gorsuch did not write that ruling, he has used the de minimis standard in other cases. In a similar 2008 case -- Thompson R2-J School District v. Luke P -- another autistic student’s parents claimed their child was not provided the quality of education guaranteed under IDEA. Luke’s parents claimed that the Loveland-based Thompson R2-J School District was unable to accommodate their son’s severe autism, and that they were forced to enroll him in a private school. The suit sought tuition reimbursement from Thompson. While a lower court ruled in Luke’s favor, Gorsuch reversed the decision.
“We sympathize with Luke's family and do not question the enormous burdens they face. Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it,” Gorsuch wrote in his decision. “Though IDEA is certainly evidence that Congress intends that States, acting through local school districts, provide assistance to disabled students and their families, the assistance that IDEA mandates is limited in scope.”
In the ruling on Endrew, the high court disagreed with Gorsuch’s view of IDEA.
“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” Chief Justice John Roberts wrote in the court’s opinion. “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly [...] awaiting the time when they were old enough to “drop out.’’”
The issues surrounding this case -- and other similar cases pertaining to disabled students -- were discussed during Gorsuch’s confirmation hearings after the decision.
Sen. Amy Klobuchar, D-Minn., asked Gorsuch about de minimis, the very standard of education to which disabled children were entitled to under IDEA, as the judge once wrote. Citing the Thompson case specifically, Klobuchar wanted to know why Gorsuch ruled that Thompson was not responsible for providing more than de minimis accommodations to Luke P., the plaintiff in that case. She argued that the de minimis standard was not precedent, but in fact originated with Gorsuch’s ruling in that case.
“Senator, I’ve written case for the families in IDEA cases,” he replied. “I’ve written decision against the families in these cases, and in each case, senator, it has been based on my assessment of the facts -- and lawsuit and opinions I’ve issued or not issued have been based on my assessment of the facts and law, not any personal animus, not any raw motive, I can assure you of that. Any suggestion otherwise would be mistaken.”
When it was his turn to question Gorsuch, Sen. Ted Cruz, R-Texas, wanted to know how the day’s ruling would affect Gorsuch’s future decisions on cases involving IDEA.
“Judge Gorsuch, as a judge of the 10th Circuit, were you bound to follow 10th Circuit precedent?” Cruz asked.
“Yes, senator,” Gorsuch replied.
“And if the Supreme Court changes the precedent, are you then bound to follow the new precedent?” Cruz followed up.
“Yes, senator, that’s how it works,” Gorsuch replied.
“This is precisely how it works,” Cruz said.
Two national groups -- The National Education Association and the Bazelon Center for Mental Health Law -- have raised concerns about Gorsuch’s ruling in Thompson and other cases involving disabled children and their rights under IDEA.
NEA said that the educational community had reached a consensus -- that isolating a disabled child’s educational needs from their other issues was “fruitless.”
The report from the Bazelon Center for Mental Health Law is more frank:
“[Gorsuch’s] record demonstrates a troubling approach to the rights of people with disabilities. Judge Gorsuch has frequently written and joined opinions in employment, education, and other cases that limit federal protections for people with disabilities.”
After the Endrew decision came down, Bazelon praised it as “a step forward for students with disabilities and their families.”
Similarly, NEA President Lily Eskelsen Garcia issued a statement simultaneously lauding the decision and slamming Gorsuch.
“The fact that the Supreme Court was unanimous in repudiating Judge Gorsuch’s standard for an ‘appropriate education’ also shows that Judge Gorsuch's views are out of touch with the needs of disabled students and the educators who serve them,” she said.
Both organizations filed amicus briefs in the Endrew case, advocating for the family. They were admitted to the record without objection.
Senate Republicans and Democrats are raring for a showdown over Gorsuch’s confirmation vote in coming days. With the fate of his nomination unclear, the Colorado judge at least had a unique opportunity to engage with a decision made by his would-be colleagues that cited his own jurisprudence.
