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The Supreme Court decided Neil Gorsuch was wrong in the middle of his confirmation hearing

by Carter Sherman
Mar 22 2017, 3:53pm

Supreme Court nominee Neil Gorsuch was only a few hours into the third and final day of his Senate confirmation hearings when he received some unpleasant news: All eight justices already on the High Court decided against of one of his most controversial rulings.

Illinois Democrat Sen. Dick Durbin was the first senator to confront Gorsuch with the Wednesday Supreme Court ruling, which dealt with the standard of public school education promised to students with disabilities by the federal Individuals with Disabilities Education Act.

“It’s a powerful decision,” Durbin told Gorsuch, who was handed the ruling on his way to the restroom. “It’s a unanimous decision. It was written by the chief justice of the court.”

During his tenure on the Denver-based 10th Circuit Court of Appeals, Gorsuch ruled several times on Disabilities Education Act cases. In one 2008 ruling, he lowered the law’s standard and found that schools need “merely be ‘more than de minimis’” when teaching disabled students. (De minimis is Latin for “the minimal things.”)

Under Gorsuch’s standard, for instance, schools aren’t required to make sure disabled students become self-sufficient outside the classroom. In a March report on Gorsuch’s track record on these cases, the National Education Association criticized his decision and warned that if Gorsuch took a seat on the Supreme Court, “hard-won protections for students with disabilities could be in peril.”

The Supreme Court decision Wednesday didn’t directly deal with that 2008 case but gutted the standard Gorsuch set. An education that’s “merely more than de minimis,” the opinion by Chief Justice John Roberts reads, is hardly an education. Children have to be challenged to learn.

“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,'” the opinion continues.

In defense of his standard, Gorsuch offered the same reason he’s given dozens of times during his confirmation hearings: precedent.

“If anyone is suggesting that I like a result where an autistic child has to lose, that’s a heartbreaking accusation to me,” Gorsuch said. “If I was wrong, Senator, I was wrong because I was bound by circuit precedent.”

But Durbin argued that the exact wording of the precedent Gorsuch referenced was “more than de minimus.” Gorsuch added “merely,” which further narrowed the level of education disabled students are entitled to receive, Minnesota Democrat Sen. Amy Klobuchar later said. And it was that word, Durbin said, that the Supreme Court specifically overruled.

Gorsuch maintained that most of the rulings on these Disabilities Education Act cases were unanimous, because they were based on precedent. “To suggest that I had some sort of animus towards children, Senator, would be mistaken,” he told Durbin.

“Judge, please,” Durbin replied. “I am not suggesting that.”

The Supreme Court, however, refrained from defining a new educational standard and sent the decision back to a lower court because schools need to consider each disabled child’s unique set of circumstances and skills.

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