U.S. Supreme Court rebuffs nominee on autism ruling

Decision passed as Gorsuch concluded his third day of Senate committee testimony

WASHINGTON, D.C.— A unanimous U.S. Supreme Court strengthened the rights of nearly seven million schoolchildren with disabilities Wednesday, and did so by rejecting a lower standard set by Judge Neil Gorsuch.

The ruling, one of the most important of this term, came as U.S. President Donald Trump’s Supreme Court nominee was wrapping up his third day of testimony before a Senate committee.

Justices ruled for the parents of Endrew F., a Colorado boy with autism, who pulled their son from the public school after his progress “essentially stalled.” They enrolled him in a private academy that specialized in autism, where his behaviour and learning improved markedly. They then sued the school district for reimbursement, alleging a violation of the federal law, which promises a “free appropriate public education” to children with disabilities.

Chief Justice John Roberts said the school district had not met its duty under the law. Children such as Endrew F. have a right to an “educational program that is reasonably calculated to enable (them) to make progress,” he said. And the learning program “must be appropriately ambitious in light of” the child’s capabilities.

This stand “is markedly more demanding than the ‘merely more than de minimis’ test applied by the 10th Circuit,” Roberts said.

Gorsuch had defended the previous stand in a 2008 opinion. Under that standard, a school need only show that it was providing a minimal special program with some level of benefit. The high court did not mention Gorsuch’s opinion in the earlier case, but it reversed a 10th Circuit ruling, which had relied on it.

Gorsuch drew fire in his Senate confirmation hearing.

“We have to look at your words and try to look into you heart with these words,” Democratic Sen. Dick Durbin said. “And when I look at that word ‘merely,’ it troubles me.”

Gorsuch said he simply followed a previous ruling from the Denverbased appeals court. His unanimous opinion was joined by a Democraticappointed judge.

“There was no dispute in my court about the applicable law,” Gorsuch said. “I’ve been asked an awful lot about whether I abide precedent and whether I always like the results I reach. Here’s a case for you. I was wrong, senator, I was wrong because I was bound by circuit court precedent. And I’m sorry.”

Later, Durbin elicited another apology from Gorsuch. The senator asked about an email Gorsuch sent while working at the Justice Department in which he criticized lawyers at big firms who represented Guantanamo detainees. The email, Gorsuch said, “was not my finest hour.”

Aside from a few uncomfortable moments, Gorsuch generally maintained the mix of earnest talk about respect for prior court decisions, a pledge for absolute independence — “when you put on the robe, you open your mind” — and folksy humour that led to lighthearted exchanges with Republicans about his passion for fly fishing.

The hearing is taking place against the backdrop of turmoil in Trump’s young presidency. Democrats including Senate Minority Leader Charles Schumer are demanding a pause in Gorsuch’s confirmation pending the FBI investigation of alleged ties between Trump’s presidential campaign and Russia, which were dismissed by Republicans.

“I think President Trump, with all of his problems and all of his mistakes, chose wisely when it came to this man,” Republican Sen. Lindsey Graham said.

Under questioning from Graham, Gorsuch repeated statements he’d made publicly for the first time Tuesday, that he was “disheartened” and “demoralized” by Trump’s attacks on the judiciary, including federal judges who blocked the president’s refugee travel ban.