DURBIN: You reversed this district court ruling. And in doing so you rejected not only the judgment of the federal district court, but also the judgment of a hearing officer and the Colorado state administrative law judge. You asserted that, quote, “The assistance that IDEA mandates is limited in scope,” end of quote. And that it only requires, quote, “The creation of an individualized program reasonably calculated to enable the student to make some progress toward the goals within that program.”
You also said and I quote directly from your opinion. “From this direction, we have concluded that the educational benefit mandated by IDEA must merely be more than de minimis,” end of quote….
Why — why in your early decision did you want to lower the bar so low to merely more than de minimis as a standard for public education to meet this federal requirement under the law?
GORSUCH: … That’s the law of my circuit, Senator…If anyone is suggesting that I look a result where an autistic happens to lose, that’s heartbreaking accusation to me — heartbreaking. But the fact of the matter is I was bound by circuit precedent and so is the panel of my court and had been bound for about 20 — 10 years by the standard in Urban versus Jefferson County….
DURBIN: Judge, in eight out of ten cases that came before you, you ruled against the students with disabilities…
GORSUCH: I’m sure they were unanimous panels, Senator, if you look.
DURBIN: … and the difference — and the difference in this case — the difference in this case is about a word. We know that words are important and they can make a critical difference in a person’s life. … The word that you inserted into the circuit standard, when it came to these cases was, merely — merely.
I would say most people reading that would say you have pushed the de minimis statute even further down the standard pole. And it was that word merely more than de minimis that was specifically overruled by the Supreme Court. So my question to you is if you just wanted to stick with Tenth Circuit precedent, you felt your hands were tied, why would you add the word merely to modify that?
GORSUCH: Senator, all I can say is what I’ve said to you before which is an unanimous panel of the Tenth Circuit following 10-year-old circuit precedent, including Democrat colleague — I don’t view my colleagues as Democrats or Republicans — followed our circuit precedent in these cases and decided unanimously, I think all of them….
… And to suggest that I have some animus against children, Senator, would be mistake.
DURBIN: Judge, please. I’m not suggesting that.
GORSUCH: Glad to hear it.