Here's an IDEA: Less Clickbait, More Accuracy About SCOTUS, Gorsuch, and Disabled Students

by Diane Klein

Last Wednesday, as the Gorsuch confirmation hearings ground through another day, a frisson passed through the left-leaning side of Facebook.  Screaming across the web were headlines like "Supreme Court unanimously strikes down Gorsuch ruling,""While Gorsuch was testifying, the Supreme Court unanimously said he was wrong," and "Unanimous Supreme Court overturns a Gorsuch decision...in the middle of his confirmation hearing."

Democrats, liberals, and others desperate for evidence that Gorsuch would be an unwelcome addition to the nation's high court, clicked and shared, and clicked and shared.  Some lawyers and law professors joined in.  But was it true?  Had Chief Justice Roberts, writing for a unanimous Supreme Court, delivered a stinging rebuke to Trump's nominee, even as he faced fawning Republicans and frustrated Democrats?

In a word - no.  What really happened in Endrew F. v.  Douglas County School District RE-1 was considerably less dramatic.  But the real meaning of the case - and what it reveals about Gorsuch as a jurist, and his views on legal issues that really matter to millions of Americans - was completely obscured by these misleading, overstated headlines.

The law at issue is the Individuals with Disabilities Education Act (IDEA), the primary federal law that guarantees America's 6.4 million disabled students a "free appropriate public education" (FAPE).
An important mechanism for carrying out the FAPE guarantee is the "individualized educational program" (IEP).  Endrew F. is a child with autism, whose parents grew dissatisfied with the IEP presented by his Colorado public school, and with his progress there.  They removed him from public school and enrolled him in a specialized private school, and then sought reimbursement from the Colorado Department of Education for the private school tuition.  Their statutory entitlement to reimbursement depended upon the inadequacy of the IEP presented by the public school, and that in turn depended upon the appropriate standard for evaluating IEPs.

The Tenth Circuit panel, not including Judge Gorsuch, applied the leading Supreme Court case in this area, Rowley, to find that an IEP is adequate so long as it is reasonably calculated to confer an educational benefit more than de minimis, meaning, "reasonably calculated to enable" the student "to make some progress."

Let's pause for a moment to consider what this means.  If all a public school must provide under the IDEA to satisfy the FAPE requirement is an education aimed at detectable progress, many disabled students will receive much less than they really need - much less than will enable them to reach their own potential, as human beings and members of our polity.  For the overwhelming majority of parents dependent on public schools to educate their children, there will be no other options, and the cycle of poverty and disability will continue, as disabled adults will be less likely to become economically independent, productive citizens.

This "merely more than de minimis" standard is a low one indeed, and the United States Supreme Court rightly rejected it, holding instead that the IDEA requires schools to offer an IEP "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."  This is far from a guarantee of an ideal education, but it is significantly "more demanding than the 'merely more than de minimis' test applied by the Tenth Circuit."

Especially given how little Education Secretary Betsy De Vos revealed she knew about the law during in her confirmation hearings -- she suggested it could be "left to the states," right up until Senator Maggie Hassan of New Hampshire informed her that it was a federal law -- this was a good and heartening result.  It brought together the Court's current right and left wings to affirm the right of every child, including those with disabilities, to an education suitable for that child, and provided a clear mandate to school districts nationwide.

So where does Gorsuch fit in?  He didn't write the Tenth Circuit opinion, join it, or even sit on the panel.  But a core component of the reversed Tenth Circuit opinion was its discussion of the substantive standard to be applied under the IDEA, to determine the sufficiency of an IEP.  Is the requirement of "some educational benefit," derived from Rowley, to be interpreted to mean "merely...'more than de minimis," or should courts apply a higher standard, of "meaningful educational benefit"?  The Tenth Circuit applied the lower standard, in reliance on a 2008 case, Thompson R2-J School District v. Luke P.  And that is the opinion Judge Gorsuch wrote, for a unanimous panel.

Like Endrew, Thompson concerned a child diagnosed with autism at age two, who was enrolled but later withdrawn from public school in favor of a specialized private school. The parents later sought reimbursement.  In Thompson, Judge Gorsuch interpreted a prior Tenth Circuit case, Urban ex. rel. Urban v. Jefferson County School District R-1, to "conclude[] that the educational benefit mandated by IDEA must merely be 'more than de minimis.'"  That word "merely" is a Gorsuch addition, and the court ultimately held that the parents and student are without a remedy where "the student... [is] indisputably making some progress" (emphasis in original).  Because the student "was making some educational progress," the Tenth Circuit concluded "that the school district met its IDEA obligations in this case."

The opinion, and its reasoning, are disheartening.  Its minimalism belies the claim that "[w]e sympathize with Luke's family and do not question the enormous burden they face."  Relieving the school district from shouldering more of that burden fails what Hubert Humphrey, forty years ago, called "the moral test of government": "how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life, the sick, the needy, and the handicapped."

There are elements of Gorsuch's judicial philosophy, including what is on display in Thompson, that are genuinely concerning. Some of his decisions suggest that behind his smarmy aw-shucks manner is a libertarian-inflected hard-heartedness progressives rightly find repellant in a nominee to the high Court.  If education policy under De Vos, Trump, and the Republican Congress moves in the direction of vouchers, for-profit charters, and other attacks on public schools, disabled students may suffer tremendously.  For example, voucher-funded private schools generally do not have to comply with IDEA - but they get public voucher money anyway.

Clickbait headlines that treat a Supreme Court reversal of one Circuit Court of Appeals' interpretation of an important federal civil rights law like a WWE SmackDown do not improve the credibility of progressive political critiques.  Nor do they advance our substantive understanding of complex and important questions about the federal and state roles in education policy, at a time when received understandings are under attack.  And even in our internet age, it is in fact possible to report a decision like Endrew F. more accurately.  The New York Times did, with an article headlined, "Supreme Court Rejects Education Minimum Applied by Gorsuch."

Not everyone can read Endrew F. -- or the IDEA -- and understand what it means.  The lawyers among us owe the rest of the public our willingness to take the time to read judicial opinions, think about their contents, and engage with the actual arguments likely to persuade a future Justice Gorsuch.