It’s an issue that flies below the radar of most Americans: the effect of the Supreme Court on American education. Consider this from Hillary Clinton during the recent presidential campaign:
In short: In a single term, the Supreme Court could demolish pillars of the progressive movement. And as someone who has worked on every single one of these issues for decades, I see this as a make-or-break moment.
If you care about the fairness of elections, the future of unions, racial disparities in universities, the rights of women, or the future of our planet, you should care about who wins the presidency and appoints the next Supreme Court justices.
Progressives see the Supreme Court as a smaller, super powerful legislature, able, with a single decision, to sweep away law, or to write law they can’t obtain through the legislative process. To that end, they speak of the “balance” of the Supreme Court, and will do whatever they can to derail Judge Neil Gorsuch.
This is a fundamentally corrupt and anti-American interpretation of the role of a judge—any judge—in our society. Judges must interpret any case according to the law—the Constitution—the facts and evidence, and nothing else. The judiciary must be an entirely apolitical branch of our system, yet progressives seek to stack every court with people beholden to progressive ideology and willing to ignore the Constitution in favor of writing the law they can’t get from the legislatures. Mrs. Clinton made this clear during the campaign, often speaking of putting people on the Supreme Court to “represent” this or that favored progressive victim group.
Judges represent no one; they are sworn to do equal justice under the law.
How does this relate to education? Education Week reports:
The National Education Association issued a report Thursday that is sharply critical of U.S. Supreme Court nominee Neil M. Gorsuch’s judicial record in special education cases, saying ‘hard-won protections for students with disabilities could be in peril’ if he is confirmed.
‘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 such students,’ says the nine-page report from the nation’s largest teachers’ union.
How would disabled children be imperiled by Judge Gorsuch, or is this merely another cynical political ploy to appeal to emotion? It is, once again, not the job of any judge to “stand up for the rights of such students,” but to apply the law uniformly and properly.
Gorsuch ‘has ruled against students with disabilities in numerous cases and his record, when considered as a whole, shows a lack of regard for the struggles and rights of students with disabilities,’ the NEA report says.
‘In A.F. v. Española Public Schools, the mother of a New Mexico student with disabilities filed a complaint with a hearing officer alleging that the school district had violated the IDEA. That claim was settled in mediation, but the mother sued the district alleging claims under the ADA and Section 504 of the Rehabilitation Act.
Writing for the majority in a 2-1 decision by a 10th Circuit panel in 2015, Gorsuch held that the mother had failed to exhaust administrative remedies under the IDEA with the mediation, and thus she could not pursue the claims under the other statutes. Gorsuch said the ‘plain text’ of the IDEA required such a result.
Judging only by the Education Week article, it would appear this decision has nothing to do with “a lack of regard for the struggles and rights of students with disabilities.” Judge Gorsuch was merely applying the law. He did not deny the claim, nor apparently rule on it, but merely sent the case back to the administrative process. Keeping matters that can be lawfully settled by administrative means out of the federal courts is a very good, not a bad, thing.
The NEA report asserts that Gorsuch’s view was effectively repudiated by the Supreme Court’s recent decision in Fry v. Napoleon Community Schools. In that Feb. 22 ruling, the high court held that a student or family suing a school district over a disability-related issue does not always have to exhaust all the procedures under the IDEA before going to court over other claims, such as under the ADA.
The NEA’s argument is self-repudiating. Judge Gorsuch’s decision was made in 2015. The Supreme Court decision to which the NEA refers wasn’t handed down until February of 2017, two years later. That decision could have no bearing whatever on the 2015 decision. And notice the weasel words: “does not always have to exhaust all the procedures.” This implies that court found narrow exceptions to the requirements of IDEA, but the NEA does not explain this. And, of course, our understanding of this issue depends on the accuracy of the NEA’s representation of Fry v. Napoleon Community Schools, yet the NEA isn’t giving up in its attempt to misinform:
The Supreme Court’s Fry decision makes clear that that approach is contrary to ‘the diverse means and ends of the statutes covering persons with disabilities,’ the report says, quoting language from Justice Elena Kagan’s majority decision in Fry.
Judges don’t pursue diversity, they apply the law, and all available evidence points to Judge Gorsuch doing just that, in this case, and all that he has done.
In another case discussed in the NEA report, Gorsuch wrote the 2008 opinion for a unanimous three-judge panel of the 10th Circuit that denied reimbursement of private residential school tuition for a boy with autism because the court found that the boy had made progress on the educational goals developed for him by his school district.
In Thompson R-2 School District v. Luke P., Gorsuch relied on a standard that a student must show improvement in an individualized education program under a ‘merely more than de minimis.’
The proper standard for such cases is a question currently before the Supreme Court in a case argued in January, Endrew F. v. Douglas County School District.
“The Supreme Court’s decision in Endrew F., on the underlying issue of the level of educational benefit that the IDEA requires, is not expected till later this spring but at argument the justices expressed significant skepticism over the very low bar that Judge Gorsuch’s opinion espouses,” the NEA report says.
Yet again, the NEA argues that Judge Gorsuch’s decision is wrong, based not on the opinion of the Supreme Court, but on arguments made before the Supreme Court in another case, some nine years into the future, not the ruling handed down in the case, no, that’s months into the future, but arguments made in the case. It’s also important to understand the Supreme Court’s decision may not touch on the same issues inherent to the case the NEA holds up as an example of Gorsuch’s disqualifying philosophies.
It’s important to understand, in thinking about the result of any such case, that we seldom have the information presented in court. We don’t have the evidence, nor do we have citations of precedence and the law necessary to come to a proper decision, yet the NEA would have us believe Judge Gorsuch is wrong, and dangerous to disabled children.
The NEA report discusses several more of Gorsuch’s special education rulings before concluding that ‘it is critical that the Senate review this record and demand that Judge Gorsuch explain how he would respect the rights of students with disabilities on the Supreme Court—in the face of an overwhelming body of cases demonstrating his hostility towards this already vulnerable population.
None of this should be surprising to regular readers. Progressives judge such things not on their adherence to the Constitution and the law, but on their adherence to preferred progressive outcomes. When a judge doesn’t give progressives the result they desire, he is wrong and dangerous.
In this, we see yet another eternal battle between conservatism and progressivism. Conservatives seek to appoint judges that will honor the Constitution. “Balance” to them has no place in the debate. A judge either applies the law or he doesn’t. If he doesn’t, he should not be a judge. Progressives work for the opposite: judges that will ignore the Constitution whenever it conflicts with desired progressive outcomes.
When Judge Gorsuch’s confirmation hearing begins on March 20, we’ll see that fundamental difference played out, far more blatantly than ever before, and it won’t be done to help the children, disabled or otherwise.