People For the American Way

Like DeVos, Gorsuch Fails to Understand Laws Protecting Students with Disabilities

News and Analysis

During her confirmation hearing for secretary of education, Betsy DeVos was utterly unprepared to answer questions about the Individuals with Disabilities Education Act (IDEA), which covers nearly 6.5 million students across the country. Although DeVos is unqualified for the position, she is now in charge of IDEA and these students’ learning. When misapplication of IDEA denies students with disabilities their right to education, concerned parents and students rely on judges to properly uphold the education law—unless the judge is Neil Gorsuch.

Like DeVos, Judge Gorsuch has proven that he does not understand IDEA or how it should be applied. But that hasn’t stopped him from using it to make a bad judgement that seriously impacts students with disabilities. In one ruling, Judge Gorsuch went against the decisions of a state education hearing officer, an administrative law judge, and a federal district court judge who had all determined that Luke, an elementary school child with autism, needed a residential school program. Luke’s parents also wanted that program for him. Judge Gorsuch, however, rejected the decision on Luke’s educational needs and instead decided to use a “vanishingly low,” outdated standard that fails to uphold IDEA’s purpose.

IDEA ensures that students with disabilities are provided “free appropriate public education.” This involves creating Individualized Education Programs (IEPs) that are reasonably calculated to provide educational benefits. To Judge Gorsuch, those educational benefits “must merely be more than de minimis.” But parents of children with disabilities, other circuit courts, disability rights NGOs, federal government education experts, and 118 members of Congress commenting on the intent of IDEA say that Judge Gorsuch is wrong to impose such a low standard. By incorrectly applying IDEA in Luke’s case, Judge Gorsuch set a harmful legal precedent for other students with disabilities that is now under review by the U.S. Supreme Court. Although the Court has not yet issued its final decision, a court commentator listening to the oral arguments noted that all the justices were “sufficiently unhappy” with Judge Gorsuch’s “more than merely de minimis” standard and are “likely to strike it down.”

We already have a new secretary of education who is unprepared to address the needs of students with disabilities. To protect disability rights, we can’t afford to add a new Supreme Court justice whose record shows that such rights are not safe in his hands.