Saturday, April 1, 2017

Trump’s Supreme Court Nominee Neil Gorsuch Denies Education for Some Disabled Children.
Gorsuch Then Misrepresents Why at a Senate Hearing
                                                                    By John C. Fager

John C. Fager

                                                                             Neil Gorsuch, a George W. Bush appointee to the Tenth Circuit federal appeals court and now President Trump’s first appointee to the United States Supreme Court, in 2008 wrote a decision, Luke P. v. Thompson School District, that dictated a very weak standard for the rights of students with disabilities.

          And last year another Tenth Circuit case, Endrew F v. Douglas County School District, not one of Gorsuch’s but with the same weak standard he used in Luke P., reached the Supreme Court. 

But this time something joyful – yes joyful – happened at our Supreme Court.  The very conservative Chief Justice John Roberts lead the court to an 8-0 decision overruling the low standard used by the lower court judge in the Endrew F. case.  And, of course, what Chief Justice Roberts wrote about Endrew F. applies to Gorsuch because he used the same weak standard in his Luke P. decision.

          On page 14 of Roberts’ Endrew F. opinion (March 22) he wrote about what rights students with disabilities have today given the standard used by the lower Tenth Circuit Court.  He wrote, “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ (underlining added by writer) 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.’” 

          “Hardly… offered an education at all” and “awaiting the time when they were old enough to drop” out is a shocking condemnation of the standard used in Endrew F. and Luke P.  In other words the very weak standard that Gorsuch had used to set the adequacy of educational benefits that disabled children were entitled to, “merely more than de minimis,” was really not offering disabled children an education at all. 

          And when Chief Justice Roberts used the phrase “sitting idly…awaiting the time when they were old enough to ‘drop out,’” he was citing the first Supreme Court decision, Board of Educ. v. Rowley, about the lack of rights of children with disabilities before the 1975 passage of the Individuals with Disabilities Education Act (IDEA)

            The enactment of the Individuals with Disabilities Education Act (IDEA) in 1975 was “in response to Congress’ perception that a majority of handicapped children in the United States were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’”

I had a personal and unforgettable experience with the dark days of  students with disabilities.  When I was living with my grandparents in Florida in 1949 I went to “kindergarten” with Julie who had cerebral palsy.  Julie was living with her grandmother who was a retired teacher.  She was there because her mother in Boston had rejected her. 
And when she arrived in Florida the local schools refused to provide her with an education as was true of many states at that time.  And even if she had been in a state that accepted children with disabilities most of the schools did not provide special education.  As Chief Justice Roberts reminds us, she and millions of other children would have been waiting to “drop out.”
 She had no parents or siblings, she had no friends, and she had no school to go to every day except when I was there.  I was only five and didn’t understand what was going on; I just thought I was going to a special kindergarten with Julie three blocks from my grandparents lived.
But I will always remember one thing: in my whole life I have never been with someone who, every day, was so happy to see me.

          Today there are 6.5 million American students with disabilities.  But as Roberts’ decision reminds us, some 42 years after the passage of the Individuals with Disabilities Education Act (IDEA), there are still students with disabilities who are back in the dark days when there was no special education. 

          Take for example Gorsuch’s case, Luke P v. Thompson R2-J School District, that involved a student with autism, whose parents’ request for residential treatment was rejected by the second elementary school that Luke attended.

          At Luke’s first school Niwot Elementary School in Colorado’s St. Vrain Valley School District he made significant progress in kindergarten and first grade.  But, like other autistic children, he couldn’t apply his behavior skills, temper control, toilet training, etc. to his home environment. 

In the fall of 2002 Luke’s family moved to a new school district where he attended second grade at Berthoud Elementary.  Gorsuch writes that there was progress in both schools for three years though his opinion contains more positive information about Niwot and more negative information about Berthoud.

However, there was no disagreement about Luke’s behavioral problems.  Learning self-control and how to get along with other students and the teacher are part of what is called social-emotional skills that should be part of the education of all children.  

But Luke was described as being unevenly tempered, sometimes violent at home and in restaurants and grocery stores.  He would also spread nighttime bowel movements around his bedroom

          Gorsuch wrote, “Understandably, these behaviors took a tremendous toll on Luke’s family.  Worried that, without intervention, Luke’s behavior would become only more dangerous as he continued to grow physically, the family began looking into residential placement options.”

Gorsuch neglected to write that these behavioral problems also took an enormous toll on Luke.  I guess we should be grateful that the judge showed some sympathy for the parents.

Luke’s parents also worried about his behavioral problems interfering with his ability to become educated and make a life for himself. They appealed the decision by Berthoud Elementary that denied the need for residential treatment. 

The appeal was made to the Colorado Department of Education and an impartial hearing officer (“IHO”) made a determination that the school had failed to provide Luke with a “free and appropriate public education” known as a FAPE.  The IHO agreed that Luke needed a residential placement and that the district, under IDEA, was required to pay for it.

The Thompson R2-J School District, appealed this decision to the Colorado Office of Administrative Courts where an Administrative Law Judge (“ALJ”) agreed with the “IHO” decision.

The school district then brought the case to the federal district court and a federal judge agreed with the “IHO” and the “ALJ.”   Luke and his parents were on a roll; they were up three decisions to zero for the school district.

But the diligent work of Luke’s parents and their lawyers was about to hit a wall: Judge Neil Gorsuch and his “merely more than de minimis” standard.  The school district appealed to the Tenth Circuit federal appeals court where three judges, including Gorsuch, heard the appeal and Gorsuch wrote the opinion.

On page 12 of his decision Gorsuch wrote about what Congress intended when it enacted IDEA and what guidance the Supreme Court’s 1982 Rowley decision offered.  He cited “access meaningful” to schools, “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside,” and students should achieve “some education benefit.”

The court’s decision came down to what was the standard for determining what level of education benefits Luke was entitled to under IDEA.  Gorsuch wrote, “We have concluded that the educational benefit mandated by IDEA must merely be ‘more than de minimis.’”(Underlining added by writer).  

He cited Urban v. Jefferson County Sch. Dist., a 1996 Tenth Circuit decision, as the source of this standard.  The three-judge panel then overturned the district court’s decision in favor of Luke and his parents.  Luke’s parents would not be reimbursed for his residential care.

          Gorsuch’s interpretation of the rights of students with disabilities contrasts sharply with Roberts’.  The chief justice praised IDEA’s vision and standards.  “A focus on the particular child is at the core of the IDEA.”  He then quoted from the IDEA law about what students are entitled to.  “The instruction offered must be ‘specially designed’ to meet a child’s ‘unique needs’ through an ‘[i]ndividualized education program.’” (Italics added by Roberts).  

          Roberts is saying that with the “merely more than de minimis” standard we are in essence back in the disability dark ages of the early 1970s and before when there was no IDEA law.  At that time disabled students were either denied admission to a public school or placed in regular classes, with no special education, waiting to drop out.

          The question is, how did we get from “specially designed,” “unique needs,” and “[i]ndividualized education program” in the Individuals with Disabilities Act in 1975 to “merely more than de minimis” in the ENDREW F. case of 2017 that Roberts harshly condemned and in Gorsuch’s Opinion in Luke P in 2008?
Two weeks ago (3/21-23) during the Senate hearings to determine if Gorsuch was qualified to be a Supreme Court justice the Endrew F case was decided by an 8-0 vote.  This was an emphatic rejection of the “merely more than de minimis” standard.  All the justices including Clarence Thomas and Samuel Alito rejected the standard.  That puts Gorsuch to the right of them.  This places Gorsuch way outside of the judicial mainstream.

          During the senate hearings Gorsuch was criticized for using the “merely more than de minimis standard in the LUKE P case in 2008.  He told the senators that he was merely following precedent. 

As weak as such an excuse is on this issue, the real truth is worse.  It turns out that contrary to what Gorsuch told Senator Dick Durbin, he didn’t follow the precedent he cited.  The precedent (Urban v. Jefferson County Sch. Dist.) and its standard was “more than de minimis” but Gorsuch wrote in LUKE P. “must merely be ‘more than de minimis.” In fact he cited the precedent and then weakened it by adding, “must merely be.” 

When deciding the Luke P. case Gorsuch had some discretion.  He could have strengthened the “more than de minimis” standard used in Urban, he could have left it alone, or he could weakened the standard by weakening more by adding merely more.  Gorsuch chose to weaken the already weak standard and in essence threw Luke, his parents, and who knows how many other students with disabilities under the bus.

          Therefore the equally explosive question is: why did Gorsuch tell the Judiciary Committee that he had merely followed precedent when in fact he had weakened it?

          So which is more reprehensible? 1) denying disabled children their right to a Free Appropriate Public Education (FAPE) under IDEA by undermining a weak standard and then using it, or 2) is it telling the Senate Judiciary Committee that he had merely followed the standard in a precedent (earlier case) when, in fact, he had weakened it?

          And more importantly does Neil Gorsuch deserve to be promoted to the highest court in the land?

          Do we want a judge with such callous disregard for children with disabilities to be a justice on United States Supreme Court for the next 30 to 40 years?

 About John Fager:  John is a  former education columnist for the NY Daily News. He was also an Emmy-winning investigative producer/reporter at 20/20 ABC News. He was a parent leader and a retired teacher in NYC. His articles and opeds have appeared in The New York Times, the Washington Post, The Nation, The New York Post, and Huffington Post, and  Newsday. 

1 comment:

  1. Thank you for this article and for your organization!!