It didn’t take long for news of the U.S. Supreme Court’s decision expanding the rights of special education students to travel across the street to the Hart Senate Office Building, where Judge Neil M. Gorsuch was having his confirmation hearing for a seat on the court.
The decision in Endrew F. v. Douglas County School District came down just a few minutes after 10 a.m. on Wednesday. By 11:30 a.m., a Democratic member of the Senate Judiciary Committee was asking Gorsuch about it. That’s because the high court had unanimously rejected—even rebuked—a legal standard that Gorsuch himself had relied on, and arguably put his own stamp on, in a 2008 special education case similar to the one before the justices. (My story on the decision is here.)
In Endrew F., the Supreme Court rejected a standard of the U.S. Court of Appeals for the 10th Circuit, in Denver, that under the Individuals with Disabilities Education Act, schools must provide a “merely more than de minimis” education program to a student with a disability. The court said schools must meet a higher standard.
In Thompson R2-J School District v. Luke P., Gorsuch had added the word “merely” to the phrase “more than de minimis,” which had come from other cases. The 2008 decision had rejected reimbursement for a private school placement for a boy with autism because the boy’s progress under his public school special education program had met the “merely more than de minimis” standard.
Some Democratic members of the Judiciary Committee had expressed concerns about Gorsuch’s ruling even before Wednesday. But after the Supreme Court rejected the “merely more than de minimis” standard in Endrew F., the Democrats pounced.
Sen. Richard Durbin of Illinois called Endrew F. “a powerful decision.” He asked Gorsuch why, in his opinion in Thompson, the judge had wanted to “lower the bar” to the “merely more than de minimis standard.”
Gorsuch said his ruling in Thompson was based on 10th Circuit precedent, particularly a 1996 decision, Urban v. Jefferson County School District.
“If anyone suggests I like an outcome where an autistic child happens to lose, that is a heartbreaking outcome to me,” Gorsuch said. “But the fact remains that I was bound by circuit precedent.” Still, he told Durbin, “I understand that today the Supreme Court has indicated that the Urban standard is incorrect. That’s fine. I will follow the law.”
Sen. Amy Klobuchar, D-Minn., said she had studied the Supreme Court’s decision during the committee’s short lunch break on Wednesday and she was unsatisfied with Gorsuch’s answers to Durbin.
She said she had looked back to the 10th Circuit’s Urban decision, and she noted that its “more than de minimis” language—there was no “merely"; that was the word Gorsuch added later—had come from a 1988 special education decision by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, in Polk v. Central Susquehanna Intermediate Unit 16.
Klobuchar told Gorsuch that in her view, the 10th Circuit’s use of the phrase in the 1996 Urban case was “just dicta"—opinion language not essential to the legal holding of the decision. And thus, it did not establish 10th Circuit precedent in her view.
“Do you see this as more dicta than a holding of the court?” she asked.
“No, I wouldn’t agree with that,” Gorsuch said, adding that the Supreme Court did not take up the Endrew F. case “for fun. It took it because there is a circuit split on this issue.”
Klobuchar said, “I think you actually took something that wasn’t necessarily a precedent, you added the word ‘merely’ to make it even more narrow, and so it is not a surprise to me, then, that the Supreme Court, 9-0, rejected that language.”
(It was a verbal stumble on her part—the unanimous vote in Endrew F. was actually 8-0, since the very reason they were in the hearing room was because there is still a vacancy on the court.)
Gorsuch repeated a point he had made a couple of other times during the hearing.
“Senator, I’ve written cases for families in IDEA cases,” he said. “I’ve written decisions against the families in these cases. And in each case, senator, it has been based on my assessment of the facts and the law, not any personal animus, not any raw motive.”
Klobuchar pointed out that, by her count, Gorsuch had ruled for families in only two of 10 special education decisions in which he participated.
In case Gorsuch needed the help, Republicans on the committee were more than happy to come to his aid on the issue.
Sen. John Cornyn, R-Texas, evinced that the Supreme Court had declined to hear the parents’ appeal in the Thompson case. (Which was true, but does not suggest that the high court’s action was any comment or ruling on the merits of the case.)
Sen. Ted Cruz, R-Texas, asked Gorsuch about whether he felt bound by 10th Circuit precedent in Thompson.
“My colleagues have repeatedly demanded that Judge Gorsuch follow precedent,” Cruz said. “This is another example of Judge Gorsuch doing exactly that—following precedent.”
Cruz asked the nominee whether he would be bound to follow a Supreme Court decision that upset an appeals court precedent.
“Yes, senator.” Gorsuch said. “That’s how it works.”
PHOTO: Senate Judiciary Committee member Sen. Amy Klobuchar, D-Minn., questions U.S. Supreme Court nominee Neil M. Gorsuch on March 22, during Gorsuch’s confirmation hearing before the committee. --Susan Walsh/AP
A version of this news article first appeared in The School Law Blog.