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The Supreme Court Didn't Really Smack Down Gorsuch

The judge's denial of aid for an autistic student applied the law at the time. Now the law's changed.

Just doing his job.

Photographer: Aaron P. Bernstein/Bloomberg

It seems like a perfect storm: Democrats on the Senate Judiciary Committee were pounding Judge Neil Gorsuch for an opinion he wrote denying assistance to an autistic child, and while he was testifying, the U.S. Supreme Court unanimously rejected the standard Gorsuch relied on to do it. The justices’ opinion is the right one, and the standard Gorsuch’s court used was wrong. But unfortunately for Democrats, Gorsuch wasn’t wrong to apply it: It was the binding legal rule in the 10th Circuit, established in 1996, long before he joined the U.S. Court of Appeals. So don’t believe the hype. The Supreme Court didn’t smack down President Donald Trump’s nominee for its empty seat. It just rejected the precedent created by his circuit.

At issue in these cases is the proper interpretation of the Individuals with Disabilities Education Act. That law requires states that get federal school funding to provide a “free appropriate public education” to disabled kids. To do so, the schools create individual education programs for each child. A family seeking private or at-home tutoring for its kids ordinarily argues that the public school isn’t enabling the child to meet the goals set by the individual program.

In a 1982 case called Board of Ed. v. Rowley, the Supreme Court addressed the issue -- kind of. It said the law didn’t impose a single substantive standard about the level of education. It added, among other things, that an appropriate education must confer “some educational benefit” to children. Yet the court also implied that the level of education must be “adequate.”

The 10th Circuit interpreted the justices’ guidance -- if that’s what it was -- very narrowly. In 1996, in a case called Urban v. Jefferson County, it held that the benefit conferred on the child must only be “more than de minimis” -- that is, more than absolutely nothing. It relied especially on the idea that the Supreme Court had required “some” benefit. And “some,” the court thought, meant “more than none.”

It was this version of the court’s standard that Gorsuch and his colleagues applied in 2008 in Thompson v. National School Board Association, the case for which he’s being criticized. In doing so, Gorsuch had no choice. Panels of an appeals court have to follow circuit precedent. The only way appeals courts change that precedent is when the entire court sits en banc.

Of course, Gorsuch could have dissented and expressed his disagreement with the circuit precedent. But the fact that he didn’t isn’t especially remarkable. Neither did Judge Mary Beck Briscoe, an appointee of President Bill Clinton who was on the same panel. If federal appellate judges dissented every time they didn’t like circuit precedent, they wouldn’t have much time for anything else.

The opinion Gorsuch wrote in 2008 wasn’t reviewed by the Supreme Court. The case handed down by the justices Wednesday, while Gorsuch’s confirmation hearing was under way, was another 10th Circuit case raising pretty much the same issue.

Writing for the court, Chief Justice John Roberts rejected the “de minimis” standard. Clarifying slightly the vagueness of the Rowley precedent, the court held that the educational plan must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Roberts rejected the standard urged by the parents in the case, which would’ve demanded that the educational benefit put disabled children in a position to contribute to society in a manner “substantially equal” to children without. He wrote that the court wouldn’t “attempt to elaborate on what ‘appropriate’ progress will look like from case to case.”

That means there will still be debate in the lower courts about what exactly is required.

That’s how the law sometimes works. The court made existing vague precedent a little more specific without making it altogether specific.

And the court got there by carving out space between two opposed positions, that of the 10th Circuit and that of the parents.

That’s also how the system is supposed to work. The 10th Circuit’s 1996 precedent is now officially wrong. But it played its part in advancing the ball, much like the parents’ advocacy.

To be clear, I think the justices’ decision is a good one. I criticized the 10th Circuit precedent in January when the case was argued, before Gorsuch was nominated and his opinion came to everyone’s attention. It’s good news that it’s been rejected.

The key point is that the court’s judgment repudiated the 10th Circuit. And it thereby repudiated the 2008 Gorsuch opinion applying the circuit’s precedent.

But the court didn’t repudiate Gorsuch, not by a long shot. His decision was correct as a matter of 10th Circuit law. That law was wrong. Bur Gorsuch didn’t make it. He applied it -- which is what his job was.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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