Gorsuch: Bad for Breathers? or Just Bad on Autism?

By Freddoso, David | Examiner (Washington, D.C.), The, February 1, 2017 | Go to article overview

Gorsuch: Bad for Breathers? or Just Bad on Autism?


Freddoso, David, Examiner (Washington, D.C.), The


No one can be disappointed by the amount of hyperbole we're getting already over President Trump's announcement that he is nominating Judge Neil Gorsuch to the Supreme Court. Sen. Ron Wyden, D-Ore., declared on Twitter almost instantly after the announcement that the same judge he had voted to put on the 10th Circuit in 2006 was "a breathtaking retreat from the notion that Americans have fundamental Constitutional rights."

Nancy Pelosi went further than that, declaring that "if you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very bad decision. Well outside the mainstream of American legal thought. Not committed to Supreme Court precedents."

If that sounds like a mish-mash of talking points that could have been thrown together against any nominee, that's because it is. But amidst that hyperbole, Pelosi did include a more specific criticism:

What saddens me the most as a mom and a grandmother, though, is his hostility towards children in school, children with autism. He has ruled that they don't have the same rights under the IDEA that children -- that they could reach their intellectual and social advancement under the law. He has said that doesn't apply to them.

This word salad appears to refer to one of the three opinions that Gorsuch authored (two of them decided unanimously by three-judge panels) regarding particular students' cases under the Individuals with Disabilities Education Act, or IDEA. But as we will see, Pelosi's comment about Gorsuch not being "committed" to Supreme Court precedent is at odds with her comment about his supposed indifference to children with autism. His opinion in that case -- a unanimous opinion joined by his liberal nemesis on the same court -- was based directly on a Supreme Court precedent from which he quoted.

The autism case to which Pelosi seems to refer is Thompson R2-J School District v. Luke P. An autistic child's parents had worked with their local public school to develop an individualized education plan for him as required under IDEA. And he was deemed to be making progress on that plan in school, although perhaps not as rapidly as they would have liked.

The parents announced they were withdrawing him from the public school and sending him instead to a specialized boarding school for autistic children. They filed a claim under IDEA demanding reimbursement from their Colorado school district for the private school's tuition. …

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