No one can be disappointed by the amount of hyperbole we’re getting already over President Trump’s announcement that he is nominating Judge Neil Gorsuch to the Supreme Court. Sen. Ron Wyden, D-Ore., declared on Twitter almost instantly after the announcement that the same judge he had voted to put on the 10th Circuit in 2006 was “a breathtaking retreat from the notion that Americans have fundamental Constitutional rights.”
Nancy Pelosi went further than that, declaring that “if you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very bad decision. Well outside the mainstream of American legal thought. Not committed to Supreme Court precedents.”
If that sounds like a mish-mash of talking points that could have been thrown together against any nominee, that’s because it is. But amidst that hyperbole, Pelosi did include a more specific criticism:
What saddens me the most as a mom and a grandmother, though, is his hostility towards children in school, children with autism. He has ruled that they don’t have the same rights under the IDEA that children — that they could reach their intellectual and social advancement under the law. He has said that doesn’t apply to them.
This word salad appears to refer to one of the three opinions that Gorsuch authored (two of them decided unanimously by three-judge panels) regarding particular students’ cases under the Individuals with Disabilities Education Act, or IDEA. But as we will see, Pelosi’s comment about Gorsuch not being “committed” to Supreme Court precedent is at odds with her comment about his supposed indifference to children with autism. His opinion in that case — a unanimous opinion joined by his liberal nemesis on the same court — was based directly on a Supreme Court precedent from which he quoted.
The autism case to which Pelosi seems to refer is Thompson R2-J School District v. Luke P. An autistic child’s parents had worked with their local public school to develop an individualized education plan for him as required under IDEA. And he was deemed to be making progress on that plan in school, although perhaps not as rapidly as they would have liked.
The parents announced they were withdrawing him from the public school and sending him instead to a specialized boarding school for autistic children. They filed a claim under IDEA demanding reimbursement from their Colorado school district for the private school’s tuition.
The school district argued that it had been fulfilling its obligation to Luke P., and that it shouldn’t have to pay for his private schooling, and Gorsuch wrote for a unanimous three-judge panel in agreement. The district’s obligation, he noted, was to develop a learning plan “reasonably calculated to enable [Luke P.] to receive educational benefits.” IDEA, he wrote, did not entitle the family to reimbursement for education at a private facility, because “every factfinder to have assessed this case has found that Luke was making progress in the public school environment on the educational goals individually formulated for him by the school district and his parents.”
A critical part of the decision relied on a Supreme Court precedent from 1982 — a 6-3 decision on which Justices William Rehnquist and John Paul Stevens agreed. That ruling specifically rejected the argument that IDEA guarantees him an educational plan that can make learning-disabled children “self-sufficient” or “maximize each child’s potential.”
“While we are sympathetic to Luke’s parents’ desire to see their child thrive,” Gorsuch wrote for the unanimous panel, “the difficulty with their argument is that Congress did not provide in IDEA a guarantee of self-sufficiency for all disabled persons, and the most authoritative arbiter of congressional intent has already reached this conclusion … [T]he Supreme Court expressly considered and rejected the notion that “self-sufficiency” is “the substantive standard which Congress imposed on the States.” Elsewhere, he added, “The Court found no support in the text or history of the Act for the proposition that Congress sought to guarantee educational services sufficient to ‘maximize each child’s potential.'”
This appears to be the precise origin of Pelosi’s complaint about Gorsuch — a Supreme Court precedent to which he appears fully committed, based on his ruling, which was agreed to by a unanimous three-judge panel that included then-Chief Judge Mary Briscoe, with whom he often found himself at odds in other cases.
It is interesting, all on its own, that this particular obscure case became the basis for such a vicious (if muddled) smear, with which Pelosi was armed and ready the very moment Gorsuch’s nomination was announced.
