When Judge Neil M. Gorsuch acknowledged in the opening statement at his confirmation hearing for the U.S. Supreme Court that he had sometimes “ruled against” students with disabilities, he likely anticipated a line of attack that was coming from Democrats over one specific special education opinion of his.
What he probably didn’t foresee was that on his final day of testimony, the Supreme Court would issue a decision that effectively rebuked the standard upon which he had based his 2008 ruling, and arguably put his own stamp on.
The high court’s decision in Endrew F. v. Douglas County School District came down just a few minutes after 10 a.m. on March 22. By 11:30 a.m., a Democratic member of the Senate Judiciary Committee was asking Gorsuch about it.
That’s because the high court unanimously 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 students with a disability. The high court said schools must meet a higher standard.
‘Heartbreaking Outcome’
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.
At Gorsuch’s confirmation hearing, Sen. Richard J. Durbin, D-Ill., called Endrew F. “a powerful decision.” He asked Gorsuch why, in his opinion in Thompson, the judge had wanted to “lower the bar” by adding “merely” to the 10th Circuit’s “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., told him, “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 after the death of Justice Antonin Scalia in February 2016 and the refusal by Senate Republicans to consider President Barack Obama’s choice for the seat, Judge Merrick B. Garland.)
Gorsuch said 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.”
Gorsuch repeated a point he had made during his opening statement on March 20.
“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.”
Other Issues Overshadowed
The debate over Gorsuch’s Thompson opinion overshadowed other education issues he was asked about by the Judiciary Committee. The nominee offered cautious responses on several topics.
Sen. John Cornyn, R-Texas, asked Gorsuch about religious expression, framed in the senator’s disagreement with Santa Fe Independent School District v. Doe, a 2000 Supreme Court decision that struck down a Texas school district’s practice of allowing student-initiated, student-led prayers at football games as a violation of the establishment clause.
Cornyn indicated that he agreed with the dissent in that case of then-Chief Justice William H. Rehnquist, who wrote that instead of exhibiting neutrality towards religion, the court was showing hostility.
“We don’t seem to have many limits on expressions of sex, violence, or crime in the public square,” Cornyn said. “But we do seem to have compunctions about religious expression in the public square.”
Gorsuch stopped short of saying whether he agreed with the high court’s decision in Santa Fe.
“It is a very difficult area” because the First Amendment’s two religion clauses—one guaranteeing the free exercise of religion, the other prohibiting a government establishment of religion—are in tension, he said.
“The court has struggled in establishment clause jurisprudence to provide a consistent, comprehensive test,” Gorsuch said, noting that the prevailing test, from the 1971 case Lemon v. Kurtzman, has been criticized by a majority of the high court, though “never at the same time.”
“So Lemon endures,” he said. “And academics have thoughts about various options and alternatives, I know. And the justices themselves have expressed various and sundry ideas.”
Gorsuch had a curious series of exchanges with Sen. Richard Blumenthal, D-Conn., about the Supreme Court’s landmark 1954 decision on desegregation, Brown v. Board of Education of Topeka, Kan.
Several recent nominees have been asked about the decision, in part to contrast with a general unwillingness to offer their views on other more recent landmarks on contraception and abortion.
After Gorsuch repeatedly offered a careful statement about Brown being “a seminal decision” of the high court, Blumenthal said, “So, why will you not say you agree with the result?” as now-Chief Justice John G. Roberts Jr. had when he was in the same chair.
“I’m saying as a judge, it was a seminal decision that got the original understanding of the 14th Amendment right, and corrected one of the most deeply erroneous interpretations of law in Supreme Court history, Plessy v. Ferguson, which is a dark, dark stain on our court’s history,” Gorsuch said, referring to the 1896 decision that upheld “separate but equal” facilities for black citizens.
“Respectfully, I don’t see any daylight between what I’ve just said and what you quoted from” Roberts, Gorsuch said. “We’re all on the same page on Brown v. Board of Education, senator. It was a great and important decision.”
