The Supreme Court Unanimously Rejected Judge Gorsuch’s Approach to Limiting the Rights of Disabled Children Seeking Appropriate Public Education

March 22, 2017

As a judge on the Tenth Circuit, Gorsuch has repeatedly sided with school districts over disabled children seeking to enforce their rights under the Individuals Disabilities Education Act (IDEA).  In ruling on these cases, he consistently interprets the IDEA and related protections narrowly.  He has also denied relief to disabled students in cases in which schools used restraints and physical force against the children.

On March 22, 2017, in the Endrew F. case, the Supreme Court ruled unanimously that disabled students are entitled to substantially more under federal law than Judge Gorsuch ruled they could get.

Gorsuch Narrowly Interprets IDEA, Denying Families Relief

Under Judge Gorsuch’s narrow interpretation of IDEA, schools need only meet a minimal standard to comply with their obligation to provide “free and appropriate public education” to disabled students.

  • In 2008 in Thompson R2-J School District v. Luke P. ex rel. Jeff P., Judge Gorsuch wrote a majority opinion denying the parents of a severely autistic child reimbursement for the costs of a specialized school that the parents believed was necessary because their son had been making insufficient progress in regular public school.[i]  Judge Gorsuch decided that the fact that the child was making “some progress” – de minimis progress – was enough to satisfy IDEA requirements.  His decision rejected the fact-finding of both the federal district court and a Colorado state administrative law judge, both of which had ruled in favor of the parents.  Jeff Perkins, the father of the child at issue in this case, is testifying at Judge Gorsuch’s confirmation hearing.

On March 22, 2017, the Supreme Court rejected this view, holding "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." .[i] 

Gorsuch has endorsed a limited view of public school districts’ obligation under IDEA to pay for private residential placement for severely disabled students.

  • In 2012 in Jefferson County School District R-1 v. Elizabeth E. ex rel Romana B., Judge Gorsuch joined the majority judgment requiring a public school district to reimburse a family under IDEA for the expenses of a private residential school for their severely disabled daughter.[ii]  The majority analyzed several factors, including whether the residential placement offered “specially designed instruction ... to meet the [child’s] unique needs.”
    • Judge Gorsuch concurred only in the judgment, writing separately to state his view that reimbursement for private residential placement should be “expressly condition[ed]” only where it can be shown that such a program provides a “meaningful educational benefit.”[iii]  In his view, a reading of IDEA that demanded “public school districts … pay for private school placement even if the new school’s ‘instruction’ is limited to addressing social or emotional problems or life challenges” would be “mistaken.[iv]

Judge Gorsuch has read the IDEA to include a stringent exhaustion requirement that bars many families of disabled students from seeking complete relief.

  • In 2015 in A.F. ex rel. Christine B. v. Espanola Public Schools, a mother of a disabled child sued the public school district, alleging that the district had violated the Americans with Disabilities Act (ADA) and similar laws by failing to address her daughter’s disabilities.[v]  Before the lawsuit, the mother had filed and then settled an administrative complaint against the school district under IDEA.  Judge Gorsuch wrote the majority opinion throwing out the mother’s lawsuit because, in his view, her earlier settlement claims under the IDEA precluded her from seeking other remedies under different statutes, such as the ADA
    • One judge dissented, arguing that Judge Gorsuch had construed IDEA erroneously and contrary to Congress’s intent, and, in so doing, had “harm[ed] the interests of the children that IDEA was intended to protect.[vi]

Judge Gorsuch Has Ruled Against Disabled Students Who Have Been Subjected to Physical Force or Seclusion

Judge Gorsuch voted to deny relief to a family whose disabled son was physically abused by a school official and was repeatedly locked in a “timeout room.”

  • In 2013, in Muskrat v. Deer Creek Public Schools, Judge Gorsuch voted to deny relief to parents who sued the school district for abusive treatment of a developmentally disabled child.[vii]  The child, who had the mental age of a two- or three-year-old, was repeatedly locked in a timeout room in response to his disruptive behavior and was slapped by a teacher on more than one occasion.  At issue was the parents’ claim that the treatment violated the child’s due process rights under the Fourteenth Amendment as government conduct that “shocks the conscience.”  The court, including Gorsuch, denied relief because the school’s treatment of the disabled boy did not “shock the conscience.”

Judge Gorsuch voted to deny relief to a family whose emotionally disturbed son was repeatedly locked in a dark timeout room during the school day in response to his behavior.

  • In 2008, in Couture v. Board of Education of Albuquerque Public Schools, Judge Gorsuch voted against granting relief to parents of a boy with “severe emotional and mental health problems” whom school officials repeatedly placed in a locked timeout room when he misbehaved.[viii]  At times, school officials placed black paper over the window of the timeout room so the boy could not see out and barricaded the door so that he could not push his way out of the room.  The court, including Judge Gorsuch, rejected the parents’ claims that this treatment violated their son’s constitutional rights because they decided the treatment was not unreasonable.

[i] Endrew F. v. Douglas County School District, 15-827 Slip Op. (March 22, 2017).

[i] 540 F.3d 1143 (10th Cir. 2008).

[ii] 702 F.3d 1227 (10th Cir. 2012).

[iii] Id. at 1243.

[iv] Id. at 1243-1244.

[v] 801 F.3d 1245 (10th Cir. 2015).

[vi] Id. at 1251 (Briscoe, J., dissenting).

[vii] 715 F.3d 775 (10th Cir. 2013).

[viii] 535 F.3d 1243 (10th Cir. 2008).