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.”
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.”
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.