Judge Gorsuch has served for the last 10 years on the United States Court of Appeals for the 10^th Circuit.  In this capacity, Judge Gorsuch has heard several cases related to special education and disability, which has enabled those who have analyzed both his concurring and issued opinions to determine how he might rule on such cases should he serve on the Supreme Court. A review of his decisions over this decade-long period shows that Judge Gorsuch overwhelmingly tends to uphold administrative rulings favoring school districts.  As pointed out by Pete Wright, however, in some instances Judge Gorsuch has ruled in favor of students. Overall he is no friend to students with special needs.

How Judge Gorsuch has ruled on previous disability and special education cases is of critical importance. Fortunately, it is not likely he will be able to participate in the 2 pending cases before the Court. The first case currently pending is Fry v Napoleon, which asks if the exhaustion element applies to a 504 claim regarding the use of service animals. The other case, which is even more seminal, is Endrew F. v. Douglas County School District that is likely to result in clarification and possibly raising the Rowley standard and defining more clearly “meaningful” vs “some benefit.” Arguably, Endrew F. is the most consequential IDEA case to be heard before the Supreme Court since Rowley v. Hendrick Hudson School District.  It is unlikely that even if Judge Gorsuch is confirmed that he will rule on these cases given oral arguments have already been made before the Court. Nevertheless, there are at least two more disability related cases, including an Obama-era case regarding use of restrooms by transgendered persons, that are making their way through the judicial pipeline and possibly to the Supreme Court.

What constitutes the Rowley standard of “some educational benefit” is frequently the basis of due process actions by families against school districts.  The courts have debated “just above trivial” educational benefit versus “meaningful benefit.”  In a Rowley-type case, Thompson R2-J Sch Dist. V. Luke P., Judge Gorsuch stated that since a student with autism with severe behavioral issues was making “some progress,” the school was not obligated to provide a residential placement, even though the child was unable to generalize skills and was making no progress outside the school environment.   This decision reversed the ruling of an administrative hearing officer, a review officer, and a District Court. This narrow view of what schools can be expected to deliver for students with special needs is very disturbing. Moreover, his willingness to overrule the lower adjudicatory bodies shows a willingness to be a judicial activist to serve a conservative agenda in favor of a school's authority.

In most jurisdictions, IDEA requires that parents must exhaust all administrative efforts before taking a complaint to a district court.  In A.F.v. Espanola Pub. Schs, Judge Gorsuch ruled that a district court's dismissal of a lawsuit was justified because a successful mediation on the part of the parents did not constitute exhaustion of administrative remedies and parents could not make subsequent claims under Section 504. This instance shows a willingness to raise the litigation burdens/cost and increase the time needed to have a student's claims adjudicated.

Another particularly disturbing case to me, given that I have represented a number of non-attending students who are frequently unable to attend school in large part because of the utter failure of their district to meet their needs, is Garcia v. Board of Educ. Of Albuqueque Pub. Schs.  Judge Gorsuch ruled that even though the district had failed to provide FAPE by reviewing the student’s IEP, the District Court was correct in denying the student’s compensatory educational claims because of truancy.  This moralistic stance fits neatly with the narrative that schools use as a justification to not serve students with significant needs who have been unable to attend school.

As pointed out by Pete Wright, Judge Gorsuch has been part of the panel that has also on occasion made very pro-child decisions, including a decision where the District Court wasn’t allowed to delegate its remedial authority to IEP teams (M.S. v. Utah Schs. For the Deaf and Blind) and a decision stating that it was unnecessary for courts to sort through conflicting opinions from different appellate courts to determine what constitutes a need for residential placement in the case of a student who, according to the judges, required a residential placement “under any standard.” (Jefferson County Sch. Dist. R-1 v. Elizabeth E.) In A.M. v. Holmes, Judge Gorsuch came down hard on a school district that arrested a 7^th grade student who was fake burping in gym class and suggested that ordering the student to run extra laps or go to the principal’s office might have been more appropriate punishments than having the local police department handcuff the student and take him to jail. 

Because we are living in “interesting times,” it is likely that Judge Gorsuch, or a jurist similar to him, will be appointed to the Supreme Court.   However, given his clear track record that is not favorable to special education students, Judge Gorsuch is not an acceptable candidate, and we should advocate that our respective Senators reject his confirmation, and if need be filibuster the nomination. The courts are our bulwark against erosion of the rights of students with special needs, and Judge Gorsuch will not be a champion of those rights.