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Wednesday, February 1, 2017

Gorsuch and Disability Issues

In The Politics of Autism, I write about special education and the Individuals with Disabilities Education Act, along with the judiciary's role in interpreting that statute and other laws on disability.

The liberal Alliance for Justice criticized Judge Neil Gorsuch, Trump's Supreme Court nominee, for his record on disability issues:

  • Contrary to an earlier decision by an impartial hearing officer, Judge Gorsuch held that a student with autism did not have a right under the federal Individuals with Disabilities Education Act (IDEA) to an education that would provide a chance to achieve intellectual 5 and social skills outside the classroom. This, even though Congress made clear that ―prepar[ing] [students] to lead productive and independent adult lives, to the maximum extent possible" is a major goal of the IDEA. See Thompson R2-J Sch. Dist. v. Luke P., exrel. Jeff P., 540 F.3d 1143 (10th Cir. 2008)
  • Over a vigorous dissent, Judge Gorsuch authored the majority opinion in A.F. ex rel Christine B. v. Española Pub. Sch., 801 F.3d 1245 (10th Cir. 2015), which held that a student cannot, for technical reasons, assert a claim for violations of the Americans with Disabilities Act if she had earlier settled with a school district for violations of the IDEA even though, as Congress made clear, students have distinct rights under both laws. 
  • Judge Gorsuch authored the majority opinion in Garcia v. Board of Education of Albuquerque Public Schools, 520 F.3d 1116 (10th Cir. 2008), holding that even when a school violates a student's rights under the IDEA, the student may still be entitled to no remedy for an IDEA violation if the student leaves the school out of frustration with the school‘s continuous failure to follow the IDEA