Hot seat gets hotter still

A ruling in a Colorado special-needs student case adds real-time drama to hearings.

A landmark decision by the U.S. Supreme Court on Wednesday that sets a higher standard for how public schools must educate students with disabilities injected unexpected, real-time legal drama into confirmation hearings for Neil Gorsuch, President Donald Trump’s nominee to the high court.

The Supreme Court’s ruling in the Colorado case, dubbed Endrew F. vs. Douglas County School District, became a flashpoint Wednesday — the third day of Gorsuch’s confirmation hearings — when Democratic senators challenged the nominee on his past opinions in cases involving children with disabilities and the quality of education to which they are entitled.

The lawmakers pointed to a 2008 case involving an autistic boy in the Thompson School Dis-

trict. Gorsuch, who sits on the 10th Circuit Court of Appeals in Denver, wrote in ruling on that case that a standard of education “merely” more than de minimis — or the bare minimum — was sufficient to meet Congress’ mandate that students in the United States be given a “free appropriate public education” under the Individuals with Disabilities Education Act.

U.S. Sen. Dick Durbin, DIllinois, seized on Gorsuch’s use of the word “merely” in the 9-year-old decision during the hearing in front of the U.S. Senate Judiciary Committee.

“Why? Why in your earlier decision did you want to lower the bar so low to merely more than de minimis as a standard for a public education to meet this federal requirement under the law?” Durbin asked.

Gorsuch, who said he was handed a copy of Wednesday’s high court ruling as he was “headed to the bathroom” during a break in his hearing, told lawmakers he and his colleagues on the court had simply followed previous legal rulings on the issue.

“We were bound by certain precedent,” he said. “We followed our circuit precedent.”

Gorsuch challenged any implication by lawmakers that he was unsympathetic to the plight of children with physical or mental disabilities.

“To suggest I have some animus against children, senator, would be a mistake,” he said.

The exchange in the Senate came just moments after the Supreme Court, in a ruling authored by Chief Justice John Roberts, issued a decision that said the “more than de minimis” threshold for providing instruction to special needs students was insufficient.

“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,” Roberts said. “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.”

Wednesday’s ruling emanated from a case in which a Highlands Ranch couple pulled their son Endrew, now 17, out of Summit View Elementary after he began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. Convinced the school wasn’t doing enough to help their son progress academically, the couple pulled him out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

They wanted the school district to reimburse them for the tuition they paid for their son’s private schooling, saying the district itself didn’t do enough to provide him with an adequate education. Three different courts sided with the district, claiming that federal law only requires that schools provide students with “some educational benefit,” a standard they determined Douglas County had met with Endrew.

The U.S. Supreme Court agreed to take up the case last fall and heard oral arguments in January.

In Wednesday’s ruling, Roberts wrote that federal statute requires an educational program “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The court did not speak to how progress should be measured but said individualized education plans for students should be crafted with “deference” to the expertise of school authorities and with the child’s particular needs front and center.

Francisco Negron, general counsel of the National School Boards Association, said the court had issued a “measured” decision “that isn’t really upsetting the apple cart.” He said it would lead to schools more carefully tracking the progress of special-needs students and he praised the court for saying it would defer to the judgment of educational officials.

The district Wednesday issued a statement saying it respected the Supreme Court decision, adding, “We are confident that the work we do for our students already meets this higher standard.”

“Indeed, in this case, the Douglas County School District offered an appropriate Individualized Education Plan and we look forward to proving to the lower courts that the IEP meets the new, higher standard,” it said.

Jack Robinson, the attorney who represents Endrew F.’s family, said the case now goes back to the 10th Circuit Court of Appeals to decide how it should be treated under the new standard. He called the high court’s ruling a “game changer,” saying the main importance of the decision is a sound rejection of the 10th Circuit’s previous minimum-focused standard.

“It adopted and articulated a markedly higher standard that was not in existence before,” Robinson said. “It’s going to put parents at the table to hold the districts accountable.”

No longer will a district be able to point to one or two procedural “checklist” items where progress is being shown by a student but now will have to assess the overall “substantive” progress a student is making in all aspects of his or her education, he said.

Disability advocacy groups cheered the ruling, saying it raises the expectations for learning-disabled students.

“It is now clear that schools must provide students with disabilities the supports they need to help them achieve meaningful and substantive educational goals,” said Ira Burnim, legal director at the Bazelon Center for Mental Health Law.

Jeff Perkins, father of Luke P., is scheduled to testify against Gorsuch at Thursday’s confirmation hearing.

“He has a radically restrictive view in the area of interpreting law — especially disability law,” he said Wednesday, as he got ready to board a flight to the nation’s capital.

Perkins called the ruling by the Supreme Court “vindicating” but also said he was saddened that it took so long.

“It’s frustrating because for nine years that Gorsuch ruling has been relied upon as precedent and children have been denied an appropriate education,” he said.