Republicans claim they want “school choice” which is really a way for the government to subsidize private schools of their choice. However, there is a case before the Supreme Court that shows just how limited they really want “school choice” to be in the case of disabled children. And, believe it or not, Gorsuch is at the heart of that case.
The case is Endrew F v. Douglas County School District. This case will determine the standards under the Individuals with Disabilities Act (IDEA). According to what took place during the hearing, Gorsuch’s potential colleagues are mystified about a term that was used in a lower court ruling against the plaintiff. That term is “minimally more than de minimis”.
Judge Ruth Ginsberg asked “who invented it”? Well the answer is Neil Gorsuch. Here s a little breakdown of the case.
The family of an autistic child (Luke) sued the school district about 10 years ago. The case came about because the school district refused to reimburse the family due to their having to send their child to a specialized residential school for autistic children. Such private school placements, paid for by the public school district, are allowable under the IDEA in limited circumstances.
It’s not that the school district wasn’t doing what it could to meet Luke’s educational needs. As Gorsuch put it, his “life away from school during the same time paints a much different picture.” Berthoud Elementary, where Luke attended second grade, didn’t seem equipped to prepare him for home life.
“Luke was unevenly tempered, often displaying inappropriate and sometimes violent behavior at home and in public places such as grocery stores and restaurants,” Gorsuch wrote. “He developed various sleep problems ― going to bed at odd hours, waking up frequently at night, and refusing to sleep in a bed. Luke also developed a habit of intentionally spreading his nighttime bowel movements around his bedroom. In addition, although Luke became toilet trained at school by the time he was in first grade, he was not able to transfer this skill to the home and other settings away from school.”
Based on this record, a hearing officer, an administrative judge and a federal district judge agreed in three separate decisions that the school district needed to reimburse Luke’s parents for a private school placement ― which the family’s lawyer Robinson and the family Perkins both said made a world of difference for Luke.
This is all in line with IDEA so disabled children get the specialized education they need. In most cases, the school district just pays the fees. But in this case, the school district in Colorado decided it needn’t pay the parents for their expenses.
The case wound up with a three judge panel of the 10th Circuit Court of Appeals and Gorsuch was one of those judges. Despite the rulings of the three different hearings that said the a school district must pay the parents, Gorsuch didn’t see it that way.
The fact is that in a very short period of time, this specialized residential school made a world of difference to Luke and his life. Despite this, Gorsuch led the court in overturning the three previous decisions by claiming that the IDEA benefits available to children like Luke were “limited in scope.”
“We sympathize with Luke’s family and do not question the enormous burdens they face,” he wrote in the decision, which effectively forced the Perkins family to pay for their son’s education out-of-pocket. “Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it.”
Gorsuch added that the statute only requires schools to create an individual educational plan that allows a student to achieve “some progress” toward the goals identified in that plan. Or in the judge’s more telling phrase, “merely more than de minimis” progress.
This is an example of just how Gorsuch looks at people with disabilities. How could any law passed by Congress would have such a trivial standard? That is the question that faces the Supreme Court. The case from 1982 Board of Education v. Rowley, there is no mention of the term “merely more than de minimis”. The word “merely” was pulled out of thin air by Gorsuch in his ruling in this case.
As a matter of fact, it was the same court that embraced the term “more than de minimis in a case in 1996. It was Gorsuch that added the word “merely” in 2008.
This case goes way beyond just this one case. We have a Secretary of Education that has no idea what the IDEA law entails. Now, we have a nominee to the Supreme Court that doesn’t think the school district should help disabled children beyond “merely more than de minimis”.
You can also see that all of the fight over “school choice” does not include children with disabilities. It only covers those who want to destroy public schools and have the government pay for their tuition at private schools.
Luke is now doing very well. He is currently 22 and had aged out of the IDEA program. He still lives in Massachusetts. He participates in a work program, goes shopping, eats at restaurants and engages in other activities that likely wouldn’t have been possible without the special school. Basically, he has a good life that would not have been available without proper education.
What would have happened to him if his parents did not have the means to send him to this specialized school? What if he had been born to poor people? He would not have gotten this education and would not have developed. Gorsuch thinks that the dollars are more important than this education and wants to deny people like Luke a chance.
Before I say this, I must confess that I am a grandfather of an autistic grandson. However, this goes beyond just that. So, to me, it is a great example of why Neil Gorsuch is not qualified to sit on the Supreme Court. I have very easy standard for the Supreme Court. The Constitution is designed to protect people. So, any Judge who puts dollars ahead of people does not deserve to be on the court. Gorsuch’s ruling in this case clearly puts dollars ahead of this person.