Subject: When Ginsburg and Thomas BOTH Think You're Wrong...
About 40 minutes after Supreme Court nominee Neil Gorsuch began his
second day of testimony before the Senate Judiciary Committee, all eight
of the justices he hopes to join said a major disability decision
Gorsuch wrote in 2008 was wrong.
Under Gorsuch’s opinion in Luke P., a school district complies with the
law so long as they provide educational benefits that “must merely be
‘more than de minimis.’”
“De minimis” is a Latin phrase meaning “so minor as to merit disregard.”
So Gorsuch essentially concluded that school districts comply with their
obligation to disabled students so long as they provide those students
with a little more than nothing.
All eight justices rejected Gorsuch’s approach. IDEA, Chief Justice
Roberts wrote, “is markedly more demanding than the ‘merely more than de
minimis’ test applied by the Tenth Circuit.” Indeed, Roberts added,
Gorsuch’s approach would effectively strip many disabled students of
their right to an education.
UPDATE: Shortly after the Supreme Court’s Endrew F. decision came down,
Sen. Dick Durbin (D-IL) asked Gorsuch about his now-discredited
decision. Gorsuch defended his approach in Luke P., claiming that he was
“bound by circuit precedent.” But Gorsuch is not correct.