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The Supreme Court Struck Down One of Neil Gorsuch's Decisions During His Hearing

Mar 22, 2017

One of Neil Gorsuch's decisions about an autistic child's education was struck down unanimously by the Supreme Court Wednesday morning during his confirmation hearing.

The 8-0 ruling, which Gorsuch said he learned about on a brief five-minute bathroom break, overturned his 2008 decision in Thompson R2-J School District v. Luke P., which found that a school district legally abides with the Individuals with Disabilities Education Act as long as it provides an education that “must merely be ‘more than de minimis.’”

The Supreme Court disagreed in their decision handed down Wednesday.

"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," wrote Chief Justice John Roberts in the unanimous decision. "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.’”

During his hearing, Gorsuch said his decision was emotionally difficult but that his hands were tied by precedent in an earlier narrow reading of IDEA.

"We were bound by circuit precedent, a case called Urban v Jefferson County School District [from] 1996, which said the appropriate standard was de minimis," Gorsuch told Democratic Sen. Dick Durbin. "That’s the law of my circuit, Senator. And I’ve been asked an awful lot about whether I abide by precedent and whether I always like the results I reach. Here’s a case for you... If anyone is suggesting that I like a result where an autistic child happens to lose, it's a heartbreaking accusation. Heartbreaking."

In a further heated exchange when Durbin continued to press Gorsuch on his legal reasoning in Luke P., Gorsuch fired back, "To suggest that I have some animus against children, Senator, would be a mistake."

"Judge, please. I am not suggesting that," Durbin responded.

Gorsuch acknowledged that the Supreme Court's new holding means his 10th Circuit ruling, which he pointed out was unanimous, is wrong.

"I understand today that the Supreme Court has indicated that the Urban standard is incorrect. That’s fine, I will follow the law. … If I was wrong, Senator, I was wrong because I was bound by circuit precedent, and I’m sorry."

"The Supreme Court is our boss and we respect their last word," Gorsuch said.

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