By Meg Wagner
While U.S. Supreme Court nominee Neil Gorsuch answered questions about his judicial career during his Senate confirmation hearing on Wednesday, the justices whose ranks he hopes to join unanimously struck down a prior decision of his against a student with autism.
All eight Supreme Court justices sided with a special-needs Colorado student Wednesday in the case Endrew F. v. Douglas County School District.
Endrew’s parents sued his public school for the cost of sending him to a private school, arguing that the public system did not provide an adequate education for their son and thus violated the Individuals with Disabilities Education Act, also known as IDEA, which requires that school districts provide a “free appropriate public education” to kids with disabilities.
The Denver-based 10th U.S. Circuit Court of Appeals sided with Endrew’s school district. The three circuit judges wrote that they were holding up precedent and pointed to the appeals court’s 2008 decision on Thompson R2-J School District v. Luke P. — which was written by Gorsuch. Gorsuch was not involved in the Endrew decision.
In that case, the parents of Luke, another student with autism, also sued their son’s public school for allegedly violating IDEA, claiming they were forced to put their child in private school when he showed little progress in a public classroom.
But Gorsuch wrote that to comply with IDEA, public school programs need to allow students to make progress that “must merely be ‘more than de minimis,’” which is a Latin phrase meaning “too minor to merit consideration.” Basically, since Luke was making some progress in his public school, the district hadn’t broken IDEA, Gorsuch wrote — even though the boy made much more progress in the private option.
The entire U.S. Supreme Court struck down that idea Wednesday.
“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.
Tough questions on maternity leave and abortion
President Donald Trump nominated Gorsuch in January to fill the late Justice Antonin Scalia’s seat, which has been vacant for nearly a year because Senate Republicans refused to hold a hearing for Merrick Garland, former President Barack Obama’s nominee.
Republicans lauded Gorsuch’s nomination: While the judge has not spoken out directly on hot-button conservative issues, such as gun rights and abortion, he has a track record of conservative values. Plus, pro-Second Amendment and anti-abortion activists have insisted that his history of constitutional originalism will mean he’ll support their causes, since there are explicit weapons protections and no mention of abortion in the original document text.
Gorsuch’s confirmation hearing began Monday, and tensions over his replacement of Garland flared. Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, even name-dropped the more liberal judge in her opening statements.
“We’re here today under very unusual circumstances,” she said. “Merrick Garland was widely regarded as a mainstream moderate nominee.”
Senate Democrats have posed tough questions. On Tuesday, Sen. Dick Durbin of Illinois asked Gorsuch about a letter from one of his former students, alleging that Gorsuch once suggested that many professional women manipulate their companies for maternity leave benefits.
Gorsuch replied that he never made such an insinuation. Instead, he claimed, he asked his class if they’ve ever faced inappropriate questions — like if they plan to have children in the future — during job interviews.
“I am shocked it still happens every year that I get women, not men, raising their hand to that question,” he said.
Other senators tried to get Gorsuch to detail his thoughts on Roe v. Wade, asking if he thought the landmark abortion rights case was “decided correctly.” Gorsuch didn’t give a hard yes or no answer, instead saying that it is “precedent.”
Activists laud Supreme Court, remain skeptical of Gorsuch
Advocates lauded the Supreme Court’s Wednesday decision as a major victory for students with disabilities. The Council of Parent Attorneys and Advocates, a nonprofit group that supports children with disabilities, said that the verdict is “transformative in the lives of the students and families for whom the law is intended to benefit.”
Meanwhile, other disability rights activists have demanded that the Senate Judiciary Committee hold Gorsuch accountable for his his 2008 decision in Thompson R2-J School District v. Luke P.
On Wednesday, Gorsuch said he learned of the Supreme Court’s decision during a break from his confirmation hearing.
When asked about the 2008 case, he told the Senate that he had been bound to another precedent: His ruling pointed to a 1996 case that said special education programs must be “more than de minimis” (although that case did not use the term “merely” like Gorsuch did in his 2008 decision).
“If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me,” Gorsuch said.
The Senate Judiciary Committee is scheduled to vote on Gorsuch’s nomination on April 3. If he passes that vote — which he is expected to do — the full Senate will vote on him soon afterward.
He’s expected to pass that one too, either by a traditional 60-senator majority or a “nuclear option” 51-senator majority, a congressional maneuver that Republicans may utilize if too many Democrats oppose his nomination.