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Why the word ‘merely’ turned many advocates for students with disabilities against Gorsuch

Judge Neil M. Gorsuch was confirmed as the next Supreme Court justice on Friday. (Susan Walsh/AP)

About the same time that Judge Neil M. Gorsuch was testifying on March 22 before a Senate committee considering his nomination by President Trump to join the Supreme Court, the high-court justices issued a ruling overturning a key decision Gorsuch had written involving students with disabilities.

Gorsuch was confirmed by the Senate on Friday to join the court, and that 2008 Gorsuch decision concerns advocates for people with disabilities.  For example, the Bazelon Center for Mental Health Law, a D.C.-based nonprofit group, opposed his nomination, saying that his record “demonstrates a troubling approach to the rights of people with disabilities.” More than 30 education, civil rights and disabilities rights organizations signed a letter sent to key senators saying that Gorsuch has “misconstrued the protections guaranteed to students with disabilities” under federal law and “endorsed the lowest of expectations for students with disabilities.”

Let’s review what happened.

In 2008, Gorsuch, while on the U.S. Court of Appeals for the 10th Circuit, penned a decision regarding the federal Individuals With Disabilities Act, which requires public schools to provide a free and “appropriate” public education to all students.

In his decision, Gorsuch rejected a claim by parents of an autistic child who had sued their son’s school district for failing to provide what they believed was an adequate education. A lower court sided with the parents. The school district appealed to the 10th Circuit court. It overturned the lower court’s decision and sided against the parents. Gorsuch wrote the opinion, applying what is called the “de minimis” standard cited in earlier cases. It has been interpreted as meaning that schools had to make only minimal progress with programs for students with disabilities.

But he did something else: He added the word “merely” in his decision, saying that the standard was “merely more than de minimis.” The addition of that one word is what has caused the controversy and was the target of criticism by the Supreme Court in its March 22 decision in a separate disabilities case when it rejected the “merely” standard.

Chief Justice John G. Roberts Jr. wrote in a 16-page opinion:

“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. 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.” ’ ”

Gorsuch was asked about that ruling during his Senate hearing. He said repeatedly that he was following precedent. Sen. Richard J. Durbin (D-Ill.) challenged him on that, saying that some see Gorsuch as having  lowered the previous standard by adding the word “merely.”

Here’s some of the testimony from the March 22 hearing before the Senate Judiciary Committee:

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.

Gorsuch said repeatedly that he was merely applying a legal precedent and was bound to do so. In this post, John Fager, a former education columnist for the New York Daily News and Emmy-winning investigative producer/reporter at ABC News, takes a different position, saying he did not have to follow that precedent. Fager was a parent leader and is a retired teacher in New York City. In addition to The Answer Sheet, his articles and op-eds have appeared in the New York Times, the Nation, the New York Post and Huffington Post. He also writes for the Badass Teachers Association, an organization with tens of thousands of members that advocates for public education and rejects profit-driven education policies.

By John C. Fager

Neil M. Gorsuch, a George W. Bush appointee to the Tenth Circuit federal appeals court who is now President Trump’s first appointee to the U.S. Supreme Court, wrote a 2008 decision in Luke P. v. Thompson School District that dictated a very weak standard for the rights of students with disabilities.

In 2016, another Tenth Circuit case, Endrew F v. Douglas County School District, copied Gorsuch’s merely more than de minimis — or practically nothing — standard to deny a disabled student the education his family said he needed.

But Endrew was granted an appeal to the Supreme Court, and conservative Chief Justice John G. Roberts Jr. on March 22 lead the court to an 8-0 decision overruling the low standard used in that case. Note that all the justices, including the very conservative Clarence Thomas and Samuel Alito, rejected that standard.

What Roberts wrote about Endrew F. applied to Gorsuch’s decision in his Luke P. decision:

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ (underlining added by writer) progress from year to year can hardly be said to have been offered an education at all.  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.’”

“Hardly … offered an education at all” and “awaiting the time when they were old enough to drop” out is a condemnation of the standard used in Endrew F. and Luke P.  that Gorsuch had used to set the adequacy of educational benefits to which disabled children were entitled.

And when Roberts used the phrase “sitting idly … awaiting the time when they were old enough to ‘drop out,’” he was citing the first Supreme Court decision, Board of Educ. v. Rowley, about the lack of rights of children with disabilities before the 1975 passage of the Individuals with Disabilities Education Act (IDEA). The enactment of IDEA, he wrote, was “in response to Congress’ perception that a majority of handicapped children in the United States were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’”

Today there are 6.5 million American students with disabilities whose lives may be changed by the Supreme Court’s Endrew decision. But as Roberts’ decision reminds us, during the last 42 years after the passage of the Individuals with Disabilities Education Act (IDEA), there were still students with disabilities who were back in the dark days when there was no special education.

Take, for example, Gorsuch’s 2008 case, Luke P v. Thompson R2-J School District, which involved a student with autism, whose parents’ request for residential treatment was rejected by the elementary school that Luke attended. Luke had made some progress but there was no disagreement about Luke’s behavioral problems. Learning self-control and how to get along with other students and the teacher are part of what are called “social-emotional skills” that should be part of the education of all children.

But Luke was described as being unevenly tempered, sometimes violent at home and in restaurants and grocery stores.  He would also spread nighttime bowel movements around his bedroom.

Gorsuch wrote:

“Understandably, these behaviors took a tremendous toll on Luke’s family.  Worried that, without intervention, Luke’s behavior would become only more dangerous as he continued to grow physically, the family began looking into residential placement options.”

Gorsuch did not mention that these behavioral problems also took an enormous toll on Luke. Luke’s parents also worried about his behavioral problems interfering with his ability to become educated and make a life for himself. They appealed the decision that Berthoud Elementary had made to deny the need for residential treatment.

Three separate entities, including a federal district court, agreed that Luke was entitled to residential treatment and that the school district should pay for it. The school district appealed to the Tenth Circuit federal appeals court. where three judges, including Gorsuch, heard the appeal and overturned that ruling. Gorsuch wrote the opinion.

The court’s decision came down to what was the standard for determining what level of education benefits Luke was entitled to under IDEA.

Gorsuch wrote:

“We have concluded that the educational benefit mandated by IDEA must merely be more than de minimis.”  (Underlining added by writer).

He cited Urban v. Jefferson County Sch. Dist., a 1996 Tenth Circuit decision, as the source of this standard.

But Urban has a standard different from merely more than di minimis. That standard was that the “benefit” conferred to a severely disabled child such as Gregory “must be more than de minimis.” This is a floor that parents and teachers can rise up from.  “Merely more than de minimis is a low cap on rising above de minimis.  The standards are in  conflict.

As a result of Gorsuch’s three-judge panel overturning the lower court’s ruling, Luke’s parents would not be reimbursed for his residential care.

How did we get from “specially designed,” “unique needs,” and “[i]ndividualized education program” (emphasis added by Roberts) in the IDEA law to “merely more than de minimis” in the Endrew F. case of 2017 that Roberts  condemned and in Gorsuch’s opinion in Luke P in 2008?

Gorsuch told the Senate Judiciary Committee last month that he was merely following precedent. But as I noted above, the precedent (Urban v. Jefferson County Sch. Dist.) and its standard was “must be more than de minimis.” Gorsuch wrote in LUKE P.  that the standard was “must merely be more than de minimis.”  He cited the precedent and then weakened it by adding, “must merely be.”

When deciding the Luke P. case, Gorsuch had some discretion.  He could have strengthened the “more than de minimis” standard used in Urban, he could have left it alone, or he could have weakened the standard by adding “merely more.”

Why did Gorsuch tell the Judiciary Committee that he had merely followed precedent when in fact he had not and he had weakened it?

I received an email from Jack Robinson, attorney for the Luke P. and Endrew F. families about this. He said that he was “devastated” by Gorsuch’s decision in Luke P, and that the family was severely harmed, as were the educational experiences of many children in the Tenth Circuit. He also wrote in part:

I cannot begin to imagine why Judge Gorsuch ruled the way he did in Luke P. Obviously, people would say that it is just sour grapes on my part because I (and my clients) lost. But it is not that. He was wrong. He did not adhere to 10th Circuit precedent, or any other court’s precedent. He, alone, established a radically new standard for what equates to a FAPE (Free Appropriate Public Education in IDEA) that has now been rejected by the Supreme Court as not constituting an education at all….
…The case was not even about what level of education benefit Luke P was entitled to under the law. But Judge Gorsuch made it that. Without relying on any prior precedent, Judge Gorsuch originated the legal precedent that a school district complies with the IDEA’s FAPE requirement if there is evidence that the disabled student received just a trivial educational benefit merely more than de minimis.