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As Gorsuch Testifies, the Supreme Court Overrules Him

By Casey C. Sullivan, Esq. on March 22, 2017 | Last updated on March 21, 2019

Well, this is awkward. Just as Neil Gorsuch faced a barrage of hard hitting questions for the third day in a row, the Supreme Court overruled him on a controversial opinion from 2008. Senator Dick Durbin took the judge to task over that ruling, where the judge rejected a challenge by the parents of an autistic boy who claimed that his school had failed to provide him the educational services required under the Individuals with Disabilities Education Act. Since the student was making some progress toward his goals, the school had met its legal responsibilities, Gorsuch concluded.

But today, the Supreme Court unanimously ruled that more than just de minimis progress was required. Gorsuch learned of the ruling during a brief break, allowing him to address it during his testimony.

Luke P., Gorsuch, and the Supreme Court

The case that drew Durbin's ire (not a difficulty for a Trump nominee facing the minority whip) was 2008's Thompson R2-J School District v. Luke P. Under the IDEA, students with disabilities are guaranteed a free and appropriate public education, or FAPE. This FAPE is met through an individualized education program, or IEP. Luke's parents challenged the legality of his IEP since it "failed to address adequately his inability to generalize functional behavior learned at school to the home and other environments." They sought to keep Luke enrolled in a residential program designed for students with autism.

But, Gorsuch explained in a unanimous opinion, the school had met its requirements so long as some educational progress was being made. Relying on the Supreme Court's statement in Rowley that the IDEA's goal was not to "guarantee any particular level of education," and the Tenth Circuit's ruling in Urban v. Jefferson County School District R-1, Gorsuch concluded that 'the educational benefit mandated by the IDEA must merely be 'more than de minimis.'" That is, almost any benefit will do.

Supreme Court Tosses Tenth's FAPE Standard

That standard was unanimously rejected by the Supreme Court today. Writing for the Court, Chief Justice Roberts explained that the law is "markedly more demanding than the 'merely more than de minimis' test applied by the Tenth Circuit."

The Luke P. case was not directly before the Court, but rather one of its progeny was, Endrew F. v. Douglas County School District Re-1. There, the Tenth had again ruled that "merely more than de minimis" progress was all that was required, saying it was bound by the court's early Luke P. decision.

The Supreme Court emphatically repudiated that standard this morning.

"When all is said and done," Chief Justice Roberts wrote, "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."

Just Following Precedent

Questioned by Senator Durbin, Judge Gorsuch defended his decision. He was simply following precedent, he said.

"We were bound by circuit precedent," Gorsuch explained, citing Urban. "That's the law of my circuit, Senator. And I've been asked an awful lot about whether I abide by precedent and whether I always like the results I reach," he said. This is just such an example.

If he was wrong, "I was wrong because I was bound by circuit precedent, and I'm sorry."

"If anyone is suggesting that I like a result where an autistic child happens to lose, it's a heartbreaking accusation," he continued. "To suggest that I have some animus against children, Senator, would be a mistake."

"Judge, please," Senator Durban responded. "I am not suggesting that."

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