Educators give senators an earful: students with disabilities deserve better than Gorsuch

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by Félix Pérez; all images courtesy of Patrick Ryan

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Library paraprofessional Kym McIntosh traveled more than 1,000 miles from Blue Springs, Mo., to Washington, D.C., to deliver a message to the U.S. Senate on behalf of the “differently-abled” students she teaches every day: Neil Gorsuch should not serve on the U.S. Supreme Court because he has failed repeatedly to protect the rights of special needs students.

“Judge Gorsuch’s rulings have been brutally against making it easier for these students to have a clearer path or an easier time getting an appropriate, accessible education,” said McIntosh. “I think that is completely backward.”

          Kym McIntosh

McIntosh, along with five other special education teachers and paraprofessionals from different parts of the country, met with their senators this week while Gorsuch was the subject of four days of committee hearings on his nomination. The six educators are not alone in their alarm. Through the National Education Association, nearly 64,000 people have sent emails and more than 60,000 have signed a petition.

Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals, has come under withering criticism for his rulings over the years involving students with disabilities. In what was the worst possible timing for Gorsuch, the U.S. Supreme Court, ruling this week in Endrew F. v. Douglas County School District RE-1, unanimously rejected Gorsuch’s “merely . . . more than de minimis” standard for providing educational benefits to students with disabilities under the Individuals with Disabilities Education Act. “De minimis” is a legal term that means “of minimum importance” or “trifling.”

In 2008, Gorsuch ruled in the Endrew case that an autistic child and his parents were not entitled to reimbursement after the child failed to make academic progress in public school. The school, the judge ruled, met the minimum standards of education.

Repudiating Gorsuch, the Supreme Court ruling read, in part:

When all is said and done, a student offered an educational program providing “merely more than de minimis” . . . can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly . . . awaiting the time when they were old enough to drop out.

Reacting to the ruling, National Education Association President Lily Eskelsen García, who taught students with special needs during her 20-year classroom career in Utah, said:

Today’s ruling by the Supreme Court is a win for our most vulnerable students and helps ensures that the promises Congress made to them under the Individuals with Disabilities Education Act will be delivered, no matter where they live. The fact that the Supreme Court was unanimous in repudiating Judge Gorsuch’s standard for an ‘appropriate education’ also shows that Judge Gorsuch’s views are out of touch with the needs of disabled students and the educators who serve them.

Special education teacher Cameron Hoxie, from Erie, Colo., who had a learning disability as a student, said Gorsuch’s rulings have a “sobering” effect on special education. “Judge Gorsuch has consistently established legal impediments for students with disabilities.” Hoxie, who participated in a news conference with McIntosh, senators Kirsten Gillibrand of New York and Jeff Merkley of Oregon and civil rights advocates, continued, “Through his rulings, Judge Gorsuch tells us that students with disabilities should only expect an education that is ever so slightly better than nothing.”

Jennie Campbell, a special education teacher from Aurora, Colo., said she wants her senators to know Gorsuch’s rulings put her students at risk. “It’s important to me that my students have everything that they need to be independent in life. I am the one in the classroom every day working with my kids, and I can see the growth and I can see how they respond to interventions. Judge Gorsuch has impacted students by not giving them the same opportunity to be successful in school, by taking away their rights. And that is not OK for these students who need so much attention, care and support to help them be successful.”

Cameron Hoxie, left, Jennie Campbell and David Riggs

Joining the other educators in Washington, D.C., was David Riggs, who oversees special education compliance for his district, coaches new special education teachers and facilitates services for home-bound students with disabilities. Riggs, who works in Boulder, Colo., pointed to the obstacles Gorsuch’s rulings have placed in the path of parents. “He’s consistently used legal red tape to hinder the process for parents to advocate for their children with disabilities, limiting the avenues they can pursue to ensure that their children’s rights are protected.” Riggs added, “By chipping away at students’ rights and access to services — the way Neil Gorsuch has — we are moving backward. That’s why I am telling my senators to absolutely vote ‘no’ with regards to Neil Gorsuch and his confirmation to the Supreme Court.”

According to two reviews of his judicial record, Gorsuch has failed to adequately and fairly protect the rights of students with disabilities. The reports, one from the Bazelon Center for Mental Health Law and the other from the National Education Association, reveal that Gorsuch has imposed barriers to prevent students from asserting their rights or proving their case in court by requiring extreme pre-conditions. Even when students have successfully proven that their rights have been violated, Gorsuch has denied them relief.

Reader Comments

  1. His rulings are not in favor of students with disabilities. NRA believes in the right to a free and appropriate public education for ALL students. I say they are doing the appropriate thing, fighting for kids! Besides his rulings I do not believe a president under investigation for possible ties to russia has any right to put a supreme court judge in until an independent bipartisan investigation is held and it is found he is cleared of working with russia!

  2. I was looking at this organization for membership, but then read the article about disabled students. I t made me wonder if this organization’s goal is to protect teachers or does it have a political agenda? Thanks for being so upfront. I think I’ll go elsewhere for membership.

    1. Jon – The field of public education has long been a stronghold of Democratic support and not a haven for conservatives who in particular seem to dislike the NEA. The NEA is larger, more geographically diverse than the American Federation of Teachers(AFT) with its members in every Congressional district in the country, and more likely to push a liberal agenda. If your politics are right-leaning, an NEA membership is probably not for you.

    2. The agenda is to use members’ dues (in many cases contributed without their consent) to push liberal, progressive, idealistic concepts with disregard to the constitution. Additionally, groups like this allow (and seem to encourage) teachers to whine about poor working conditions, too low pay, and never seem to offer any useful approaches to ‘fix’ those issues. Probably the biggest problem I have is that groups like NEA (et al) contribute to campaigns for political candidates. There is pretty much universal condemnation of any political idea that is not firmly based in Democratic party principles.

      There is generally support for man made climate change, support for illegal aliens entering the country without consequence, strong support for anything anti-gun ownership, unconditional support for people like Pelosi, Schumer, Clintons and any politician who believes in abortion on demand by woman, any time.

      1. Jon – Like I was saying, the NEA is not usually a haven for conservatives…except for the occasional alt. right troll who wants sow dissent by posting comments here. 🙂

        1. You say troll, I saw rational patriot, you saw dissent, I say reality. Tomato, tomaato.

          Freedom and liberty or government control. Democracy or socialism. Potato, potato.

          Exactly the nature of this organization, do not disagree, its not allowed.

          1. MarineBob – We’re all patriots Bob…but your use of that word to describe only yourself and others on the right infers that the rest of us aren’t. Once again, that’s not true.

            As far as the NEA and its nature, I can’t definitely speak to that, What I can say is this: The idea of Public Education is hated by conservatives. The right favors privatization for many reasons but a key one is that it furthers the reduction of the public sector and that will help undermine teacher unions, a key base of support for the Democratic Party. So all this talk about demonizing the NEA is really a cover for a discussion of money and political power. Just admit it.

    3. You might want to consider groups like the NRA if you want unbiased, factual information about the state of our government. The NRA is focused on maintaining liberty and freedom, limiting government control, as prescribed by the constitution.

      1. MarineBob – Yes, the NRA. As the propaganda arm of the gun industry what possible agenda could they have other than the unimpeded freedom to purchase their product?

  3. MarineBob – It’s not Neil Gorsuch’s fault, but I can’t support his easy ascension to a stolen Supreme Court seat. Tell me that If you were in my position, you wouldn’t feel the same way? The Democrats are bound and determined to make this the hardest nomination possible and I don’t blame them a bit.

    1. Funny….a ‘stolen’ seat? Like the Supreme court should have ideological leanings? Only originalists should be on the court, using the constitution as a guide and rule for decisions. Anything else is rubbish.

      The Republicans simply followed the recommendations of Joe Biden and deferred the choice until after an election. Had the democrats ever thought, for one second, that Hillary would lose, they would have more aggressively worked to get their slanted perspective, non originalist choice into the office.

      It will not happen that Gorsuch is not put into the court, it will happen. And it will be following the perverted rules that were suggested and used by Democrats. I suppose it falls into the ‘be careful what you wish for’ category.

      This childish filibuster nonsense is simply another time waster that the country can ill afford. The only value is that it makes people like Schumer, Pelosi, Franken show more of their ridiculous notions of what it means to be an American leader. Its time for Pelosi to let her face skin relax a bit and got retire somewhere. 77 years old? Time to call it a career and go fishing.

      1. MarineBob – This is false. In 1992, Joe Biden never argued for a delay until the next president began his term. It was Senate Republican leader Mitch McConnell that first announced that there would be no hearings, no votes, no action whatsoever, on any Supreme Court nomination until the next sitting President. So don’t whine about hold-ups now when a Senate vote should’ve been taken on a choice eons ago.

        1. Augh…..might want to google an ABC news clip that video’s Biden saying Bush ought not to recommend a nominee, as was the practice, or words to that effect. 1992 I believe. I suppose you also think that having a specific political slant is a good thing for a judge. Maybe they all should follow the constitution, not their emotions

          1. MarineBob – In June of 1992 Joe Biden argued the “Biden Rule” for a delay on nominees until just after the presidential election of that year in November but NOT all the way until the term of the next sitting President in January. At the time of Biden’s speech, there wasn’t a vacancy on the court or a nominee to consider. Rep. leader Mitch McConnell took it to a new level and scope. So It’s not the same…but you conservatives just love spinning those “alternative facts” to support your case.

            1. Not the same? OK, you win, you are the best spinner. The interesting part is that liberal thinkers never seem to be constrained by words until the words work for them. Generally its ideals that drive liberal thought.

  4. Typical Repub partisan, relying on name-calling rather than reason and logic. Laws are written in words and often need interpretation – that’s why the Supreme Court exists. And, interpretations often clash. No man alone holds the truth.

    1. The Supreme court is not in the business of interpreting what the words mean. That is a Democratic party view of what the court does. The words are the words. If one does not like the words, the legislature exists to change the ‘words’, not ignore or reinterpret them.

  5. “God Gawd”…Spell much, Bob?
    Methinks that you might have been hit with too much Agent Orange when you were in The Corps!

  6. Having watched Gorsuch testify in front of buffoons like Franken who did not even recognize Gorsuch was mocking them, it is irrational to think this guy is anything but a legal encyclopedia, an originalist who will always uphold the constitution and not bow to political whims. Anyone who disagrees with his decisions is disagreeing with the law (in question) and needs to get their legislator to change the laws. It really is that simple. What is wrong is to think that a SC judge ought to be making emotional, politically unbalanced decisions. This is what the Democrats want, and is very very wrong. Maybe Schumer can demonstrate more maturity and filibuster to get the Republicans to blast away using their own tricks.

    God Gawd, did anyone see Pelosi and Warren? It would appear they are both mentally unbalanced.

    The real answer is to establish term limits and get rid of all the grey haired, 40 year inbred legislators who all need to go away.

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