As Neil Gorsuch testified at his confirmation hearing for his appointment to the Supreme Court on Tuesday, the eight justices currently sitting on the Supreme Court overturned a decision that Gorsuch made in 2008.
As a federal judge on the 10th circuit, Gorsuch wrote an opinion that denied the parents of an autistic child their request to be reimbursed for the cost of sending him to a private school catered to students with autism.
The parents in Thompson R2-J School District v. Luke P. were suing under the Individuals with Disabilities Education Act (IDEA) which guarantees disabled students “free appropriate public education.” Their lawyers argued that the school district was not able to provide “appropriate” education for their son, so they should be reimbursed for the costs of the only available appropriate school setting.
Gorsuch ruled that the family was not entitled to any compensation. In his opinion he argued that under IDEA school districts’ only standard is that accommodations for disabled students “must merely be more than de minimis.”
De minimis refers to something that is so minor it should be disregarded. You can think of de minimis as meaning the least you could possibly do while still counting as doing something.
In other words, as long as district did something tangible to help a disabled student, according to Gorsuch, they met their responsibilities under IDEA even if the accommodations are nowhere near what the student needs to thrive.
The Supreme Court ruled that Gorsuch was way off the mark with that decision, to the detriment of the rights of disabled children. In the unanimous decision in Endrew F. v. Douglas County School District, Chief Justice Roberts wrote,
When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’
In his hearing Gorsuch responded to questions about the Supreme Court’s ruling by claiming that his decision to set the IDEA threshold at “merely more than de minimis” was following precedent. In fact, ThinkProgress provides an excellent explanation of why this explanation is false:
In a 1996 opinion, Gorsuch’s court held that “the ‘benefit’ conferred by the [IDEA] . . . must be more than de minimis.” It set a floor. Whatever benefits the law provides to disabled students, it cannot simply be de minimis.
Gorsuch’s opinion in Luke P., by contrast, added the word “merely” to this framework. Under Luke P., the benefits offered to a disabled student “must merely be ‘more than de minimis.’” That one word effectively transformed the floor that the court placed below disabled students in 1996 into a ceiling. Gorsuch transformed a rule instructing school districts that they must do more than nothing into a rule instructing them that they don’t need to do any more than a little more than nothing.
If Gorsuch wants to make it on the Supreme Court he needs to step up his legal reasoning. It is pretty awkward to show up on the job just after every single one of your new colleagues called you out for being dead wrong, and at the expense of disabled children.
Marisa completed her undergraduate degree in 2013 at the University of Wisconsin with a double major in creative writing and media studies. She is an advocate of progressive policies and focuses her interests on gender equality and preventing sexual and domestic violence.