Setting the Record Straight on Gorsuch and Disabilities

by Carrie Severino

A major wire service recently published a story claiming that “Neil Gorsuch has embraced a bare-bones standard of education for disabled children.”  It’s unfortunate to see its uncritical adoption of liberal talking points about Gorsuch, particularly when they are so easily refuted.  For starters, the generation is not based on a series of cases, but a single point sample, and seriously misrepresents that one case.  What’s more, the story overlooks the many instances in which Judge Gorsuch upheld the rights of the disabled which thoroughly undermine its conclusion.

The story’s most sensational claim relies on the fact that “Gorsuch wrote an opinion that reversed a lower court ruling, which would have forced a Colorado school to pay an alternative school to educate an autistic boy.” The case in question is Thompson School District v. Luke, for which Gorsuch wrote the unanimous opinion — joined in full by Judge Mary Briscoe, a liberal Clinton appointee — that applied longstanding case law from the Supreme Court and the Tenth Circuit. The parents of a disabled student sought to have a public school district in Colorado pay for their son’s private school education even though he was making progress in public schools and even though the school district was willing to make additional individualized efforts to mirror some of the potential benefits of the private school. Indeed, as the panel’s opinion notes, the parents in this case decided to put their student in private school even while the school district was still working to do more to meet the student’s needs.

As the panel’s unanimous opinion explains, in passing the Individuals with Disabilities in Education Act (IDEA), Congress sought to ensure that disabled students are able to make progress in public schools using individualized education plans. In this particular case, every decision-maker had already held that the individual student was making progress in school – the only question was whether that progress was enough to constitute sufficient educational benefit under the IDEA as passed by Congress and interpreted by the Supreme Court.

As any responsible appeals judge would do, Judge Gorsuch referred to Supreme Court precedent. In Board of Education v. Rowley, the Court held that in passing the IDEA, Congress did not require the provision of a sign language interpreter for a deaf student who was able to make progress with a hearing aid. A unanimous Tenth Circuit panel applied the Rowley test in 1998 to deny a transfer to a different school where a student was making adequate progress as his current school.  Gorsuch’s unanimous opinion in Thompson School District simply applied the binding Supreme Court and Tenth Circuit precedents to hold that, where a student is making progress in public school, the public school district is not required to fund a private school education. Indeed, the Tenth Circuit had previously

The story also presents an incomplete picture by failing to note the many cases in which Judge Gorsuch has protected the rights of disabled students in IDEA cases. In Jefferson County School District R-1 v. Elizabeth E. ex rel. Roxanne B., he wrote separately in support of a ruling that required a school district to fund a disabled child’s treatment at a residential facility of her parents’ choosing. In M.S. ex rel. J.S. v. Utah School for Deaf & Blind, he joined a panel opinion that ensured the IDEA claims of a blind and deaf student would receive full judicial review, reversing the district court’s decision to the contrary.

Judge Gorsuch has also sought to increase the scope of representation afforded disabled students in IDEA proceedings. In a 2016 article, he criticized states that restrict representation in IDEA proceedings to attorneys, including laws that that prevent parents from hiring non-profit groups of their choosing. Judge Gorsuch even argued in favor of allowing broad representation for disabled students by “nonlawyers who have special training or knowledge ‘with respect to the problems of children with disabilities’” in order to ensure that disabled students get the best, broadest advocacy available to them.

Finally, it is worth noting that Judge Gorsuch frequently rules in favor of disabled employees, not just students, in their claims of discrimination. In Lowe v. Independent School Dist. No. 1 of Logan County, Judge Gorsuch voted to allow a disabled teacher to proceed to trial on her claim of disability discrimination, reversing the district court. In George v. Astrue, Judge Gorsuch held that an administrative law judge failed to adequately consider an injured individual’s claim that he was unable to work due to a mental impairment. And in two separate cases (Energy West Mining Company v. OliverEnergy West Mining Company v. Johnson), Judge Gorsuch affirmed findings by the government that disabled miners were entitled to black lung benefits from their employer.

In short, the caricature of Judge Gorsuch as a Dickensian villain couldn’t be further from the truth. Not only does this story misrepresent the Tenth Circuit’s ruling in Thompson, but it also omits a long history in which the Supreme Court nominee has ruled in favor of defending the rights of the disabled. ​

Bench Memos

NRO’s home for judicial news and analysis.