Gorsuch’s Ideology Has Harmed People With Disabilities
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People For the American Way
Gorsuch’s Ideology Has Harmed People With Disabilities
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Paul Gordon |
March 30, 2017
News and Analysis
Gorsuch’s Ideology Has Harmed People With Disabilities Jeff Perkins shares a
photo of a young Luke P. Luke’s parents successfully sued their school district
to pay for a residential program for Luke who was diagnosed with autism, but
their hopes for Luke took a blow when Judge Gorsuch reversed the lower court
in Thompson R2-J School District v. Luke P. (2008).
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During Neil Gorsuch’s confirmation hearings, many Americans were shocked to
learn just how insensitive President Trump’s Supreme Court nominee can be to
people with disabilities—even children.
A Standard of Care So Low it is Meaningless
Perhaps the most prominent example has been
Luke Perkins, a boy with autism.
His father Jeff Perkins traveled from Colorado to Washington to
testify on how Judge Gorsuch’s ideology made him issue a legally baseless ruling
that ignored Luke’s needs and devastated the entire family.
Under the Individuals with Disabilities Education Act (IDEA), Luke was entitled
to a free and appropriate public education and an individualized program
reasonably designed to provide him with educational benefits. From kindergarten
to third grade, it became clear that the school’s efforts were not successful.
While he made some minimal advances, he was unable to apply learned skills
outside of school, and he was losing ground in some areas. Luke’s parents
successfully
sued the school district to pay for a residential program with a record of
success, but their hopes for Luke took a blow when Judge Gorsuch reversed the
lower court in Thompson R2-J School District v. Luke P. (2008).
He took a non-germane statement from a 1996 Tenth Circuit case, incorrectly
called it binding precedent, then changed it completely without acknowledging
his sleight of hand. In 1996, the court, in an aside, noted that a school’s
program has to provide some meaningful benefit, rather than simply pointing
to a small, insignificant benefit and calling it a day. In legal parlance, the
court said that the benefit must be “more than de minimis.” Gorsuch quoted
that standard, but then—without explanation—added the word “merely” before it:
The benefit “must merely be more than de minimis.” As Luke’s father told
the Judiciary Committee:
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Judge Gorsuch felt that an education for my son that was even one small step
above insignificant was acceptable.
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When Gorsuch refused to support Luke’s getting the assistance to which he was
entitled, he didn’t do it because he was compelled to by precedent: He created
a standard that set the lowest of expectations from children with disabilities,
reminiscent of the “soft bigotry of low expectations” that George W. Bush
talked about. And while his ruling was devastating and callous to Luke, it also
applied to every child with a disability in the entire Tenth Circuit.
(Fortunately,
during the confirmation hearings, the Supreme Court ruled 8-0 that the
Gorsuch standard was wrong.)
Catch 22: Partial Relief Under One Statute Bars Relief Under Others
In another case, A.F. v. Española Public Schools (2015),
Judge Gorsuch wrote an opinion interpreting IDEA to significantly limit
parents’ options to most effectively address their children’s educational needs.
In that case, a parent filed a complaint under the IDEA to get her daughter’s
school to design an appropriate and individualized program for her. Eventually
they reached a settlement about the individualized program, but the student’s
mother sought additional remedies that aren’t available under IDEA, but which
are available under the Rehabilitation Act and the Americans with Disabilities
Act. These laws require parents to first exhaust the administrative remedies
that IDEA contains. But Judge Gorsuch ruled that by definition, reaching a
settlement means that the administrative remedies have not been exhausted. This
nonsensical ruling means that in order for a parent to seek remedies available
under the Rehabilitation Act and the Americans with Disabilities Act, they
cannot agree with the school on the individualized program that would satisfy
some of their child’s needs. As the dissenting judge pointed out, this goes
against the very purpose of IDEA.
Insensitivity to Disabilities Means Conscience Can’t Be Shocked
Judge Gorsuch has also given legal sanction to the harsh discipline of children
with disabilities. In Muskrat v. Deer Creek Public Schools (2013), Gorsuch
joined an opinion against parents whose son J.M. had the mental age of a two or
three year-old, even though he was significantly older. School officials
repeatedly put him in a timeout room for disruptive behavior. The room was
extremely small and had a small window too high for children to see out of.
J.M. was unable to understand the timeout room’s purpose; it only served to
frighten him. Nevertheless, the school staff put him in there over and over,
at least 30 times over two years—even when doing so was specifically prohibited
by agreement with the parents. The court ruled that there was no constitutional
violation because the school’s actions didn’t “shock the conscience.”
Rewriting the Law to Deny Relief to Cancer Victim
Judge Gorsuch’s willingness to rewrite the law to his liking stunned Professor
Grace Hwang and her family. She had gotten a six-month leave from the university
where she taught so she could be treated for leukemia. When she was about to
return, a flu epidemic broke out on campus, and her doctor warned her to stay
away, because she would be risking her life due to her compromised immune
system. When she asked the university to extend her leave, they said no, even
though she would have provided assistance from home to whoever was teaching her
class. She sued under the Rehabilitation Act, which requires employers
to make reasonable accomodations in situations like this, with the definition
of “reasonable” based on the individual factors of each case.
Contrary to clear language of the Act,
Judge Gorsuch ruled against the sick professor in Hwang v. Kansas State
University
(2013). He framed his opinion with the assumption that asking an employer to
extend a leave beyond six months was unreasonable. Such a framing is exactly
the opposite of the case-by-case analysis required by the Rehabilitation Act.
Professor Hwang has since passed away, but her family went to Washington,
DC, to tell people how Gorsuch’s callous opinion impacted her life and the
lives of the entire family.
These cases are all part of a pattern.
The Bazelon Center for Mental Health Law has concluded
that “elevating Judge Gorsuch to the Supreme Court would harm people with
disabilities in their efforts to protect and advance their rights.” The National
Education Association expressed great concern that “Judge Gorsuch’s record on
students with disabilities raises serious questions about whether he, as
a Supreme Court justice, would understand and stand up for the rights of
disabled students.”
Senator Dick Durbin cite
d the NEA when he noted that Gorsuch ruled against students with disabilities
in eight of the ten IDEA cases to come before him. The senator called this
part of a pattern he found “troubling.”
These concerns are shared by
former Deputy Attorney General Eve Hill,
who worked in the Civil Rights Division and who has spent more than two decades
protecting the rights of people with disabilities. She testified before
the Judiciary Committee, sharply criticizing Gorsuch’s record in cases
involving children and adults with disabilities, stating:
Block quote start
Judge Gorsuch’s decisions on the education of our children with disabilities
are troubling, both for their callousness and for their dismissiveness of the
law as written by Congress.
…
The notion of his elevation to our nation’s highest court sends fear into the
hearts of the many Americans who rely on federal protections to ensure that
disability is not an unfair and unjust barrier to accessing jobs, housing, and
education for themselves and their children.
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Senators should have no compunction about preventing the confirmation of a
Supreme Court nominee who strikes fear into the hearts of people with
disabilities.
Source:
http://www.pfaw.org/blog-posts/gorsuchs-ideology-has-harmed-people-with-disabilities/
