Debate on Gorsuch and Special Education Rulings Continues on Last Day of Hearing

By Mark Walsh — March 23, 2017 5 min read
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The last day of Judge Neil M. Gorsuch’s confirmation hearing for the U.S. Supreme Court saw further vigorous debate over a 2008 special education ruling by him and a decision a day earlier by the high court.

The father of a son with autism who lost his case before a federal appeals court panel for which Gorsuch had written the opinion told the Senate Judiciary Committee on Thursday that Gorsuch did not merit confirmation.

“In his 10th Circuit ruling, Judge Gorsuch eviscerated the educational standard guaranteed by the” Individuals with Disabilities Education Act, said Jeffrey D. Perkins of Berthoud, Colo., the father of now 22-year-old Luke.

Gorsuch’s opinion in that decision, Thompson R2-J School District v. Luke P., has been a Democratic target for criticism of President Donald Trump’s high court nominee even before the U.S. Supreme Court on Wednesday rejected, in another case from the 10th circuit, the standard that Gorsuch had applied regarding the level of benefit a school district must provide under the IDEA.

In Endrew F. v. Douglas County School District, the justices unanimously said the IDEA “demands more” than the “merely more than de minimis” standard used by the 10th Circuit .

As a father adversely affected by one of Gorsuch’s scrutinized rulings, Perkins was already lined up as a witness by Democratic members of the Judiciary Committee. The Supreme Court’s decision in Endrew F., which was an indirect rebuke of Gorsuch’s position in the 2008 case and which the nominee himself was questioned about Wednesday, made Perkins’ appearance all the more timely.

Perkins told the committee he agreed with some legal analysts who believe Gorsuch’s addition of the word “merely” to the words “more than de minimis,” which came from earlier cases, lowered the bar even further for what school districts had to provide to meet the IDEA.

“Judge Gorsuch felt that an education for my son that was even one small step above insignificant was acceptable,” said Perkins. He described the educational journey of his son. The family had clashed with the Thompson school district over Luke’s individualized education program, largely over the boy’s difficulty in generalizing skills from school to home.

The family enrolled Luke in the Boston Higashi School, a private school specializing in serving students with autism spectrum disorder. The boy made “astounding progress” there, Perkins said, improving quickly in academics and general skills. (Perkins’ full written statement is here.)

The family sued the Thompson school district for reimbursement of the private school tuition, as the IDEA permits when a district fails to provide a free, appropriate education. That is the case that led to the 2008 decision in the 10th Circuit written by Gorsuch.

Perkins said the family ended up moving to Dedham, Mass., where the local school district recognized Luke’s needs and allowed him to finish at the Higashi School.

“Luke will always need support in a world that still seems perplexing and threatening to him,” Perkins said. “But his quality of life after 13 years of appropriate education is vastly better than it would have been otherwise.”

He said Luke had acquired a passion for Lego toys, and the father placed a Lego model of the U.S. Capitol that Luke had assembled on the witness table. (Sen. Thom Tillis, R-N.C., later told him that the same model was being assembled as a project in his Senate office, and “my staff is struggling.”)

“Thankfully, Luke is unaware of the price paid for his education,” Perkins said. “He is ... unaware of the key place that one judge, with his radically restrictive interpretation of law, played in the fight for his right to a free and appropriate public education.”

Perkins drew support from some Democrats on the committee, while some Republicans questioned the premise that Gorsuch’s use of “merely” in his opinion had in any way altered controlling 10th Circuit precedent—the “more than de minimis” language.

The Republicans found some unexpected support from another witness on the same panel as Perkins. (The committee heard from 28 witnesses Thursday, split up into four groups.)

Deanell Reece Tacha, the retired dean of Pepperdine University law school who served on the 10th Circuit court with Gorsuch before she left the court in 2011, had been called by Republicans as a character witness for the nominee.

But she had something important to contribute in the discussion over Gorsuch’s opinion in the Thompson case and the Supreme Court’s Endrew F. decision.

“I can say with some authority that he was following ... what I wrote in the Urban case,” Tacha said, in reference to a 1996 decision, Urban v. Jefferson School District, in which the 10th Circuit court first embraced the “more than de minimis” standard.

“What happened in the case that was issued yesterday is two circuits had chosen one standard, and the rest had chosen another standard ... on the interpretation of the IDEA,” Tacha said. “So, yesterday the Supreme Court carried out its very important function of clearing up what the standard would be.”

Federal appeals court judges are happy when the high court clears up such circuit conflicts, she said. But she repeated that Gorsuch’s opinion in the Thompson case “was based on the Urban case that I wrote, and it said the standard is, ‘must be more than de minimis.’”

Sen. Richard Durbin, D-Ill., who was the first to suggest to Gorsuch on Wednesday that the Supreme Court had just rebuked him in the Endrew F. ruling, told Tacha when she discussed the prevailing 10th Circuit standard, she left out the word added to “more than de minimis” by Gorsuch: “merely.”

“One word has made a big difference,” Durbin said. “It has taken ‘de minimis’ lower.”

Tacha later told Sen. Mike Lee, R-Utah, that Gorsuch was meticulous in crafting his opinions and she did not believe he intended to alter the “more than de minimis” standard with his use of the word “merely.”

Perkins said that he found Gorsuch’s “subtle wordcraft,” with “my son in the bullseye of that decision, very hard to take.”

Gorsuch’s confirmation hearing came to an end Thursday. Sen. Charles E. Grassley, R-Iowa, the chairman, repeated his intention for the committee to vote on the nomination next week.

A version of this news article first appeared in The School Law Blog.