About 40 minutes after Supreme Court nominee Neil Gorsuch began his second day of testimony before the Senate Judiciary Committee, all eight of the justices he hopes to join said a major disability decision Gorsuch wrote in 2008 was wrong.
Both the Supreme Court’s decision and Gorsuch’s 2008 opinion involved the Individuals with Disabilities Education Act (IDEA), which requires that public school systems which take certain federal funds provide a “free appropriate public education” to certain students with disabilities.
Applying this law to individual students, the Supreme Court acknowledged in its Wednesday opinion in Endrew F. v. Douglas County School District, is not an exact science. “A focus on the particular child is at the core of the IDEA,” Chief Justice John Roberts wrote for the unanimous Supreme Court. “The instruction offered must be ‘specially designed’ to meet a child’s ‘unique needs’ through an ‘[i]ndividualized education program.’”
But while this process can be difficult, it must provide meaningful educational benefits to disabled students — which brings us to Judge Gorsuch’s error in a 2008 opinion. In Thompson R2-J School District v. Luke P., a case brought by an autistic student whose parents sought reimbursement for tuition at a specialized school for children with autism, Gorsuch read IDEA extraordinarily narrowly.
Under Gorsuch’s opinion in Luke P., a school district complies with the law so long as they provide educational benefits that “must merely be ‘more than de minimis.’”
“De minimis” is a Latin phrase meaning “so minor as to merit disregard.” So Gorsuch essentially concluded that school districts comply with their obligation to disabled students so long as they provide those students with a little more than nothing.
All eight justices rejected Gorsuch’s approach. IDEA, Chief Justice Roberts wrote, “is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.” Indeed, Roberts added, Gorsuch’s approach would effectively strip many disabled students of their right to an education. Roberts went on:
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.’”
To the contrary, the unanimous Supreme Court concluded, in most cases a student’s progress should be measured according to whether they are able to keep up with their non-disabled peers.
In a classroom, “regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material.” The ability to “progress through this system is what our society generally means by an “education.’ And access to an ‘education’ is what the IDEA promises,” the Court concluded.
For this reason, a school district’s plan for a particular disabled student typically should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”
And even when the child’s disability prevent them from achieving these marks, the Court found the district must do more than the slightly-more-than-nothing standard announced by Donald Trump’s Supreme Court nominee.
UPDATE: Shortly after the Supreme Court’s Endrew F. decision came down, Sen. Dick Durbin (D-IL) asked Gorsuch about his now-discredited decision. Gorsuch defended his approach in Luke P., claiming that he was “bound by circuit precedent.” But Gorsuch is not correct.
In a 1996 opinion, Gorsuch’s court held that “the ‘benefit’ conferred by the [IDEA] . . . must be more than de minimis.” It set a floor. Whatever benefits the law provides to disabled students, it cannot simply be de minimis.
Gorsuch’s opinion in Luke P., by contrast, added the word “merely” to this framework. Under Luke P., the benefits offered to a disabled student “must merely be ‘more than de minimis.’” That one word effectively transformed the floor that the court placed below disabled students in 1996 into a ceiling. Gorsuch transformed a rule instructing school districts that they must do more than nothing into a rule instructing them that they don’t need to do any more than a little more than nothing.