NEA Criticizes Supreme Court Nominee’s Judicial Record on Special Education

By Mark Walsh — March 09, 2017 3 min read
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The National Education Association issued a report Thursday that is sharply critical of U.S. Supreme Court nominee Neil M. Gorsuch’s judicial record in special education cases, saying “hard-won protections for students with disabilities could be in peril” if he is confirmed.

“Judge Gorsuch’s record on students with disabilities raises serious questions about whether he, as a Supreme Court justice, would understand and stand up for the rights” of such students,” says the nine-page report from the nation’s largest teachers’ union.

As a judge on the U.S. Court of Appeals for the 10th Circuit, in Denver, for the past 10 years, Gorsuch has an extensive record of rulings on education, including several based on the Individuals with Disabilities Education Act, the Rehabilitation Act, and the Americans with Disabilities Act.

Gorsuch “has ruled against students with disabilities in numerous cases and his record, when considered as a whole, shows a lack of regard for the struggles and rights of students with disabilities,” the NEA report says.

The report in particular discusses two rulings of Gorsuch’s that touched on special education issues that the U.S. Supreme Court has taken up this term, though not in the cases in which the nominee had ruled.

In A.F. v. Española Public Schools, the mother of a New Mexico student with disabilities filed a complaint with a hearing officer alleging that the school district had violated the IDEA. That claim was settled in mediation, but the mother sued the district alleging claims under the ADA and Section 504 of the Rehabilitation Act.

Writing for the majority in a 2-1 decision by a 10th Circuit panel in 2015, Gorsuch held that the mother had failed to exhaust administrative remedies under the IDEA with the mediation, and thus she could not pursue the claims under the other statutes. Gorsuch said the “plain text” of the IDEA required such a result.

The NEA report asserts that Gorsuch’s view was effectively repudiated by the Supreme Court’s recent decision in Fry v. Napoleon Community Schools. In that Feb. 22 ruling, the high court held that a student or family suing a school district over a disability-related issue does not always have to exhaust all the procedures under the IDEA before going to court over other claims, such as under the ADA.

“The Supreme Court’s Fry decision makes clear that that approach is contrary to ‘the diverse means and ends of the statutes covering persons with disabilities,’” the report says, quoting language from Justice Elena Kagan’s majority decision in Fry.

In another case discussed in the NEA report, Gorsuch wrote the 2008 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.

In Thompson R-2 School District v. Luke P., Gorsuch relied on a standard that a student must show improvement in an individualized education program under a “merely more than de minimis.”

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 Supreme Court’s decision in Endrew F., on the underlying issue of the level of educational benefit that the IDEA requires, is not expected till later this spring but at argument the justices expressed significant skepticism over the very low bar that Judge Gorsuch’s opinion espouses,” the NEA report says.

That is true enough, but the NEA doesn’t mention that the “merely more than de minimis” standard was established as a 10th Circuit precedent in a 1996 case, and Gorsuch discussed it as controlling precedent in the Thompson case. (Another liberal group, the Alliance for Justice, criticized Gorsuch for his Thompson opinion, as well as some other special education rulings.)

(A third organization, the Judge David L. Bazelon Center for Mental Health Law, also issued a report Thursday critical of Gorsuch and his rulings on disability discrimination.)

The NEA report discusses several more of Gorsuch’s special education rulings before concluding that “it is critical that the Senate review this record and demand that Judge Gorsuch explain how he would respect the rights of students with disabilities on the Supreme Court—in the face of an overwhelming body of cases demonstrating his hostility towards this already vulnerable population.”

Gorsuch’s confirmation hearing before the Senate Judiciary Committee is scheduled to begin on March 20.

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