Liberal Group Criticizes High Court Nominee on Special Education Rulings

By Mark Walsh — February 16, 2017 4 min read
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A liberal group on Thursday issued a report declaring U.S. Supreme Court nominee Neil M. Gorsuch Gorsuch “not qualified” and “a dangerous choice” for the court, based in part on his judicial record in several special education cases.

The report came as Sen. Chuck Grassley, the chairman of the Judiciary Committee, announced that the confirmation hearing for Gorsuch is set to begin March 20 and is expected to run three to four days.

The confirmation hearing would begin 48 days after President Trump’s Jan. 31 nomination of Gorsuch, a judge on the U.S. Court of Appeals for the 10th Circuit, in Denver, to fill the Supreme Court vacancy created by the death a year ago of Justice Antonin Scalia.

Grassley said in a statement that such a timeline would be similar to that for the 2009 nomination of Sonia Sotomayor, and the 2010 nomination of Elena Kagan, when Democrats controlled the Senate and the Judiciary Committee, for consideration of President Barack Obama’s two Supreme Court picks. Sotomayor’s hearing was held 48 days after her nomination, while Kagan’s was 49 days, Grassley said.

Republicans are eager to complete the hearing and hold a Senate vote on Gorsuch in time for him to participate in the Supreme Court’s final oral argument session of the term, which begins April 17.

The Alliance for Justice’s review of Gorsuch’s record concludes that “he has read the Individuals with Disabilities Education Act (IDEA) extremely narrowly.”

“Judge Gorsuch’s insensitivity to the rights of children and his extremely narrow approach to acts of Congress are on full display with his treatment of claims from children seeking to enforce their rights under the” IDEA, says the Feb. 16 report.

“Despite what the White House would have us believe, he’s a dangerous choice,” Nan Aron, the president of the Washington-based group, said in a conference call with reporters.

Daniel L. Goldberg, the legal director of the alliance, said during the call that Gorsuch’s judicial record reflect a judge “whose sympathies lie always with the powerful.”

Gorsuch has a fairly extensive record of rulings on education in more than 10 years on the federal appeals court.

The Alliance for Justice devoted attention in its report to a handful of special education cases, among discussion of many other categories of cases.

In one, Thompson R-2 School District v. Luke P., Gorsuch wrote the opinion for a unanimous three-judge panel of the 10th Circuit that denied reimbursement of private residential school tuition for a boy with autism because the court found that the boy had made progress on the educational goals developed for him by his school district.

The Alliance for Justice report stresses that Gorsuch relied on a standard that a student must show improvement in an individualized education program under a “merely more than de minimis” standard. The proper standard for such cases is a question currently before the Supreme Court in a case argued in January, Endrew F. v. Douglas County School District.

The Obama administration, arguing one of its last cases before the court, urged the justices not to adopt the 10th Circuit’s “merely more than de minimis” standard.

The alliance’s report doesn’t reflect that Gorsuch, in the 2008 decision in Luke P., was applying the standard adopted by the 10th Circuit in a 1996 case.

The alliance is also critical of a 2015 decision in another IDEA case, A.F. v. Española Public Schools. Gorsuch wrote the opinion for a 2-1 majority that a decision by the mother of a child with multiple disabilities to accept a mediated settlement of her IDEA claims meant she could not bring similar claims under the Americans with Disabilities Act and other statutes.

“In other words,” the alliance report says, “as the dissent noted, in order to have the right to bring a suit under the Constitution or other federal statute, a student with a disability or her parent must not be successful in pursuing his or her IDEA claims during a due process hearing. As a result, a plaintiff who has entered into a mediated settlement under the IDEA cannot bring a federal lawsuit under the Rehabilitation Act, the ADA, or the Constitution asserting educational injuries.”

The report also criticizes Gorsuch for the 2013 case of Muskrat v. Deer Creek Public Schools, which involved an Oklahoma family’s claims about the use of the timeout room for their young child with developmental disabilities.

Gorsuch joined a unanimous panel decision holding that the district’s use of the timeout room to briefly restrain the child did not “shock the conscience” and thus did not violate the student’s constitutional rights.

“While [Gorsuch’s] resume may be objectively impressive, his ideology is disqualifying,” the alliance report says. “Time and again, we found evidence of Judge Gorsuch’s ideological pursuit of legal outcomes that systematically denigrate the rights of everyday people.”

The alliance did find one education decision of Gorsuch it tacitly applauded. The report discusses decisions in which the alliance concludes that Gorsuch “has often sided with police on excessive force claims, even in cases where the victims posed no threat to officer safety.”

But a counter-example was Gorsuch’s dissent in a 2016 decision, A.M. v. Holmes, the report says. In that case, Gorsuch parted ways with two 10th Circuit colleagues who upheld a school resource officer’s arrest and handcuffing of a New Mexico 7th grader for disrupting his class with “fake burps.” Gorsuch suggested the officer had gone too far, and was not immune from suit, in a matter that was better suited to the school disciplinary process.

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