Judge Gorsuch, Special Education, and Expertise


Some good news for once: The Supreme Court has handed down a unanimous decision invalidating a substantive special education standard used by most federal appeals courts in the country, stating that its implications for certain children would “be tantamount to sitting idly, awaiting the time when they were old enough to drop out.”

A good decision overall—one that, while it is deliberately vague and does not cure all ills within the special education world, still recognizes that the way the law was being applied left a hole. Kids who might need mild accommodations (mild ADHD or reading disorders, for example) tended to have fairly robust protections under IDEA caselaw, and kids at the other end of the spectrum (for example, severe autism or other functioning deficits) were at least in settings where they were given the opportunity to function, even if they might not ever approach graduation.

This, however, left the education of hundreds of thousands of kids caught in between those poles at the mercy of judges (or, really, law clerks) who might not have expertise in this field…and for 35 years, many judges threw their hands up and decided that the only thing that they could determine was whether there was any progress at all, and if there was, it wasn’t their place to invalidate any more. (The “more than de minimis” standard was in some places just code for a more robust standard, but that was entirely a matter of judicial discretion.) Roberts, writing for the Court, rejects this argument wholesale:

“It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” (op. at 14)

This rejection of what amounts to a standard of deference to experts is interesting given the attention paid to Gorsuch’s stance on Chevron, the doctrine that requires courts to defer to an agency’s interpretation of a statute if Congress has not spoken clearly. And I quote:

“The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.

At the same time, deference is based on the application of expertise and the exercise of judgment by school authorities. The Act vests these officials with responsibility for decisions of critical importance to the life of a disabled child. The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue. By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” (op. at 16)

Interestingly enough, Gorsuch had, during his time on the Tenth Circuit, heartily endorsed the “more than de minimis” standard. In a 2008 case called Luke P (540 F.3d 1143), Judge Gorsuch reversed the administrative judges and the lower court and rejected reimbursement for an autistic child’s placement in a residential school for severe behavioral problems at home (including violent behavior, refusing to sleep in a bed, and spreading his own bowel movements across his bedroom at night) because:

“The fact that, by the admission of every factfinder in this case, Luke was making some educational progress and had an IEP reasonably calculated to ensure that progress continued is sufficient to indicate compliance, not defiance, of the Act.”

Obviously, the context is slightly different and the “expertise” analysis is a slightly different framing than Gorsuch’s words above or his framing of his distaste for Chevron, but I don’t know that either can be fully separated from the idea that experts are not necessary or even valuable in modern society, at least not in a live case or controversy where people matter. Gorsuch, of course, styles the judiciary as the expert on the law above all else, but it is entirely unclear whether he would have joined Roberts’ opinion here, and I’d like to know his thoughts on it and what he might change.

Experts must matter, because information matters. Especially in an area such as special education, where hard, immovable truths are few and far between.

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