WASHINGTON – During the third day of confirmation hearings for Judge Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, U.S. Senator Dick Durbin (D-IL), a member of the Senate Judiciary Committee, raised serious concerns about Judge Gorsuch’s record of ruling against students with disabilities. Senator Durbin pressed the 10th Circuit judge to explain why he ruled to deny a child with severe autism access to the educational services to which he was legally entitled under the Individual with Disabilities Education Act (IDEA), and he demanded Gorsuch defend his opinion that the law “provides only limited rights to students with disabilities.”
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During the hearing, the Supreme Court, in an opinion authored by Chief Justice Roberts, unanimously ruled that the 10th Circuit Court of Appeals’ standard for what educational benefit a school is required to provide students with disabilities is inconsistent with the law. The timing of the decision was striking because the Court alone determines when it announces its rulings. Chief Justice Roberts’ opinion specifically notes that “[w]hen 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.” According to the National Education Association’s analysis of 10th Circuit jurisprudence in IDEA cases, Judge Gorsuch established the “merely more than de minimis” standard in a 2008 opinion.
“Why in your early decision did you want to lower the bar so low to ‘merely more than de minimus’ as a standard for public education to meet this federal requirement under the law?” asked Senator Durbin. “The difference in this case is about a word. We know that words are important, and they can make a critical difference in a person’s life…The word that you inserted into the Circuit standard, when it came to these cases, was ‘merely.’ I would say most people reading that would say you have pushed thede minimus statute even further down the standard pole.”
Additionally, Senator Durbin questioned Gorsuch about his refusal to provide substantive answers on his views as well as his stance on reproductive rights and the 6th Amendment’s guarantee of effective assistance of legal counsel.
Video of Durbin’s remarks to the Senate Judiciary Committee is available here.
Audio of Durbin’s remarks to the Senate Judiciary Committee is available here.
Durbin has served on the Senate Judiciary Committee for 18 years, during which he has considered the nominations of four current Supreme Court justices. In January, Senator Durbin held a courtesy meeting with Judge Gorsuch and discussed the importance of judicial independence in light of the legal and constitutional disputes plaguing President Trump.
