Judge Neil M. Gorsuch said during the first day of his U.S. Supreme Court confirmation hearing that he has ruled for students with disabilities and sometimes has ruled against them based not on their personal stories but on the legal issues before him.
“In my decade on the bench, I have tried to treat all who come to court fairly and with respect,” Gorsuch said during his opening statement before the Senate Judiciary Committee on Monday. “I have ruled for disabled students, prisoners, and workers alleging civil rights violations. Sometimes, I have ruled against such persons, too. But my decisions have never reflected a judgment about the people before me—only my best judgment about the law and facts at issue in each particular case.”
President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the high court sought to deflect some of the criticism voiced by his critics, as well as by some Democrats on the Judiciary Committee in their opening statements.
“For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels,” said Gorsuch, a judge on the U.S. Court of Appeals for the 10th Circuit, in Denver.
Sen. Mazie Hirono, D-Hawaii, a first-term senator appearing at her first Supreme Court confirmation hearing, picked up on criticism of Gorsuch’s record on special education cases.
“In a number of other cases, including in Thompson School District, your decisions made it more difficult for families with special needs children to get the help they needed as the law intended,” Hirono told Gorsuch.
Her reference was to a 2008 opinion by Gorsuch in Thompson R2-J School District v. Luke P., which ruled against a family seeking reimbursement for the placement of a child with autism in a private residential facility because the parents believed their school district had failed to provide a free, appropriate public education under the Individuals with Disabilities Education Act.
“We sympathize with Luke’s family and do not question the enormous burdens they face,” Gorsuch wrote for a unanimous 10th Circuit panel. “Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it. ... The [IDEA] does not require that states do whatever is necessary to ensure that all students achieve a particular standardized level of ability and knowledge. Rather, it much more modestly calls for the creation of individualized programs reasonably calculated to enable the student to make some progress towards the goals within that program.”
Gorsuch’s opinion in the case has attracted more scrutiny as his confirmation hearing has drawn closer over his embrace of a standard that the educational benefit mandated by the IDEA “must merely be ‘more than de minimis.’”
The “more than de minimis” standard comes from an earlier 10th Circuit decision, but there has been debate about the significance of Gorsuch’s addition of the word “merely.”
Some groups, including the National Education Association and the Alliance for Justice, have criticized Gorsuch’s opinion in the case, and some legal commentators have been making the case that his use of “merely” made an already low bar even lower—that a benefit barely above the minimum is sufficient.
The issue has gained further potency because the Supreme Court is considering another case from the 10th Circuit about what level of benefit the IDEA requires, something like “more than de minimis” or “merely more than de minimis” on the one hand, or something like a “meaningful educational benefit” on the other.
During oral arguments in Endrew F. v. Douglas County School District, several justices questioned the standard of “merely more than de minimis.” A decision is pending.
Segregated Schools, Transgender Guidance
There was relatively little other specific criticism from Democrats about education issues or cases.
Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, questioned Gorsuch’s commitment to originalism—sticking close to the original interpretation of the U.S. Constitution.
“If we were to dogmatically adhere to originalist interpretation, then we would still have segregated schools and bans on interracial marriage,” Feinstein said. “Women wouldn’t be entitled to equal protection under the law. And government discrimination against LGBT Americans would be permitted. So I am concerned, when I hear that Judge Gorsuch is an ‘originalist’ and a ‘strict constructionist.’”
Sen. Chris Coons, D-Del., told Gorsuch that “we live in tumultuous times, and the Supreme Court will hear many important cases” in areas that include executive power, deference to federal agencies, and personal liberty.
He cited the Trump administration’s withdrawal of the Obama administration’s guidance that urged schools to allow transgender students to use restrooms and locker rooms that align with their gender identity. The withdrawal led to the Supreme Court returning a case about transgender rights in schools to a lower court.
“It’s important we understand your values and framework for interpreting the Constitution,” Coons told the nominee.
Republicans didn’t mention education issues, but they painted Gorsuch as a principled jurist who did not impose his own views.
“Judges aren’t free to rewrite statutes to get results they believe are more just,” said Sen. Charles Grassley of Iowa, the committee chairman. “Judges aren’t free to re-order regulations to make them more fair. And, no, judges aren’t free to ‘update’ the Constitution. That’s not their job.”
Sen. Mike Lee, R-Utah, told Gorsuch: “I’m sure that some of my colleagues will pick apart some of your rulings. They’ll try to say you’re hostile to particular types of claims or to particular plaintiffs. I don’t think it’s productive to evaluate someone’s judicial record by looking at who wins or loses in his courtroom.”
Grassley announced that Gorsuch would face senators’ questions on Tuesday and Wednesday, and panels of other witnesses would follow. He expects the committee to vote on the nomination next week.
The hearing was to resume Tuesday at 9:30 a.m.
Photo: U.S. Supreme Court Justice nominee Neil Gorsuch is surrounded by photographers as he arrives for his confirmation hearing before the Senate Judiciary Committee on March 20 in Washington.
A version of this news article first appeared in The School Law Blog.