WASHINGTON — Senate Democrats seized on a Supreme Court ruling handed down Wednesday morning — less than an hour into the third day of the confirmation hearing for nominee Neil Gorsuch — to question the judgment of President Trump’s choice to fill the empty seat on the high court.
The unanimous decision in Endrew F. v. Douglas County School District expanded the obligations of public-school districts to provide an adequate education to disabled students under the Individuals with Disabilities Education Act (IDEA). The opinion by Chief Justice John Roberts rejected a standard that Gorsuch had used to decide a similar case in 2008, Thompson School District v. Luke P.
Gorsuch wrote then that the Colorado school district must provide an autistic elementary school student with an education that provides “merely more than de minimis” progress every year — a phrase that means better than no progress. Wednesday’s decision in the Endrew case — which Gorsuch was not involved in but that involved the same reading of IDEA — held that “merely more than de minimis” was not the correct standard.
“When all is said and done, a student offered an education program offering ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” Roberts wrote. “The IDEA demands more.”
The decision came down as Gorsuch was already in the hot seat on the third day of his Senate confirmation hearing to be the next Supreme Court justice, and Democrats on the committee quickly seized upon it.
Sen. Dick Durbin, D-Ill., asked Gorsuch to explain why he adhered to a standard the court so resoundingly rejected.
Gorsuch replied that he had just been handed the decision moments before on his way to the bathroom and had not had a chance to read it yet. Nonetheless, he explained his original decision making in the 2008 case.
“I was bound by circuit precedent,” Gorsuch said. He added that it was “fine” that the Supreme Court changed the interpretation, but that until then it was up to him as an appeals court judge to follow the precedent.
“If I was wrong, Senator, I was wrong because I was bound by circuit precedent, and I’m sorry,” he said.
Durbin asked why he used the word “merely” to describe what the school districts’ responsibility was to disabled students — a word that hadn’t been brought up in any of the precedents Gorsuch cited.
Gorsuch didn’t answer, but said that the decision had been unanimous, by a panel that included a judge who was appointed by a Democratic president.
“To suggest that I have some animus against children, Senator, would be a mistake,” Gorsuch said.
“Judge, please, I am not suggesting that,” Durbin retorted.
Sen. Amy Klobuchar, D-Minn., joined in, asking Gorsuch why he would decide against an autistic student in this case.
“I was trying faithfully to the best of my ability to follow Supreme Court precedent in Rowley and the 10th Circuit opinion as I understood it in Urban,” he said, mentioning two previous cases that dealt with children with disabilities.
A spokesman for Republican Sen. Chuck Grassley, the chair of the committee, sent a statement to reporters defending Gorsuch’s decision, noting that several circuits had relied on a similar understanding of IDEA before Wednesday’s Supreme Court decision.
“The word ‘merely’ in Luke P did not change the legal test,” the spokesman, Taylor Foy, wrote. “Instead, it was simply a description of the very low bar the 1996 precedent set for school districts to meet — the very point Democrats have been making about the unfairness of the law Judge Gorsuch was required to follow.”
Sen. Ted Cruz, R-Tex., said that Democrats should be applauding Gorsuch for being bound by precedent in the case. Senate Democrats have asked Gorsuch whether he will respect the Supreme Court precedent legalizing abortion, for example. “I will commend them for highlighting this case as another example of a judge doing exactly that, following precedent,” Cruz said.
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