The Beginning of Negative Treatment of Children With Special Needs by the 10th Circuit
Thompson–was a 2008, 10th Circuit case where Gorsuch took editorial license to use dubious terms and analysis to deny relief to a severely autistic boy and his family. It was this precedent and analysis that found its way into subsequent cases–including Endrew which was now before the US Supreme Court.
However, in the earlier “precedent setting case of Thompson, what the family had requested, was to use public funds allocated to the states by the federal government, through the Individuals with Disabilities in Education Act (IDEA) to provide a “meaningful” education to their son Luke who displayed severe educational and behavioral disability. The parents requested “public” funds to place their son in an ‘outside residential placement’ school that worked exclusively with autistic and handicapped children. Yet Gorsuch and the 10th Circuit bench denied relief to Luke and his family–even where three other lower courts and tribunals hearing the case and the evidence agreed–that such a placement was warranted.
The issue in Thompson–is not unlike other 10th Circuit Appeals Court cases–but one recently made the long and dubious journey to the US Supreme Court, Endrew v Douglas County School District RE-1. Endrew is a case, where once again, the 10th Circuit denied relief to another family of an autistic child–a child also was in need of outside private placement due to the severe nature of his educational, emotional, and behavioral disabilities. In both cases–where despite having previous Individualized Education Programs (IEP) created by the public school educators in earlier years–both parents came before the Court with the same argument. That is, the school district failed to provide their children with an education that would be considered by Congress under “IDEA“; to fulfill the requirement that a “Free and Appropriate Public Education” (FAPE) provided to each child to allow them to make meaningful progress in their education. However, even though Luke’s case was not before the Supreme Court, the issues in Luke’s case touched upon the analysis made recently in Endrew.
In fact, “Luke,” was a second grade autistic boy who was regressing in school and at home–despite numerous IEP’s over the years. At the request of his parents and according to the evidentiary findings by experts and courts who interviewed him, it was believed that Luke could make meaninful progress in a specialized school for severely autistic children. Similarly, “Endrew” was in fifth grade with similar issues.
Parents Want Appropriate Education for Their Child
In Thompson, Luke’s parents argued to the school district and to the courts that, denying their son Luke the ability to have an ‘appropriate education’ was in fact, denying him the ability to progress–to meet the challenges he faced, and to someday be self-sufficient as Congress intended when enacting “IDEA.” The parents also argued, what was provided to them by the public school IEP, was less than the law required, and therefore failed to provide him with a “Free and Appropriate Public Education” (FAPE)–appropriate for someone with his special needs.
Yet, the Gorsuch opinion denied Luke and his family just that. In a heartless and unsympathetic decision, Gorsuch both here and in countless other cases before his 10th Circuit Appellate Court, helped shape precedent–denying disabled children the educational assistance they needed and the law required–that is, denying them the use of funds provided by the Federal Government to the states under Individuals with Disabilities in Education Act (IDEA).
For those who may be unaware, the 10th Circuit comprises a number of states and their Federal Courts sitting in those districts including: Colorado, Kansas, New Mexico, Eastern District of Oklahoma, Northern District of Oklahoma, Western District of Oklahoma, Utah, and Wyoming. In essence, a large number of children throughout these states were for the most part likely denied the education they needed and deserved as a result of unwaivering precedent set by Gorsuch’s and his bench.
Gorsuch Owns Thompson Opinion
More specifically, it was Gorsuch who wrote the opinion in Thompson for the Court. In fact, he “tweeked” the language in his Thompson opinion to have a profound negative cascading effect on cases of similar import–denying relief for future parents of autistic children who had the unintended misfortune of dealing with his court.
Chief Justice Roberts Rights the Ship
To that end, Chief Justice Roberts writing for a “unanimous” US Supreme Court, underscored the foundation necessary for a correct interpretation of US Supreme Court precedent on Educating Children with Disabilities, the 1982 case, Henry Hudson District Board of Education v. Rowley.
In reviewing the requirements of Rowley and applying it to a 10th Circuit case before the US Supreme Court, Endrew v. Douglas Country School District RE-1–Chief Justice Roberts rebuked the 10th Circuit precedent and interpretation of Rowley it had long used to deny parents and handicapped children relief–and in essence deny them an education. By no uncertain terms, a unanimous court told Gorsuch and the 10th Circuit they got it all very very wrong.
Gorsuch Used 10th Circuit Minority Precedent He Set in Motion to Deny Disabled Children a Free and Appropriate Education
Gorsuch based his opinion upon a notion that the Luke court brief did not fully explore a second issue that could have been raised–although, the school district was allowed to argue the very same issue. Even worse, Gorsuch stated that the standard of review in IDEA cases had to adhere to a much harsher standard of review–giving little or no deference or weight to the three decisions in Luke’s favor from the educational boards, tribunals and reviewing courts below.
Notably, three tribunals and courts had ruled in favor of Luke receiving residential placement–finding the district was obliged under the Individuals with Disabilities in Education Act to pay.
Notably, an Independent Hearing Officer, an Administrative Law Judge, and the Colorado Office of Administrative Courts all agreed.
In fact, the Federal District Court, ultimately agreed with the administrative decisions that Luke’s generalization deficiency warranted his placement in a residential program, and that the school district must reimburse the family for the residential placement in a school for autistic children.
More pointedly, even though all prior tribunals found the necessity of residential placement for a child exhibiting severe behavioral, emotional and learning issues to be warranted; yet, Gorsuch applied a standard that would deny the child residential placement, irregardless of the fact that child three tribunals found it necessary–and ignoring the fact that when Luke was placed in a ‘trial program’ at the private residential placement–he had made substantial progress. The facts of Luke track similarly with the facts of Endrew before the same 10th Circuit.
Nevertheless, in Luke, Gorsuch went to the extent to acknowledge the harshness of his court’s standards, even states that someday his circuit may change precedent to comport with other jurisdictions–yet he does nothing to get an “en banc”–a full court of appeals judges to review and revise; instead, he chose to make a bad situation even worse–denied Luke and all subsequent children with similar problems–the opportunity to make meaningful progress in their education.
Issues of Disabled Children that Courts Must Address
The issues in Luke’s case are not uncommon–that is, where children either cannot ‘generalize’ their education–that is, transfer learned skills between home and school, or they show ‘no progress’ or even ‘regress’ from year to year. For Luke it was highly aggressive conduct which included defecating and spreading his feces on his bedroom walls and hitting and climbing over others that was highly problematic. Yet, he and his family were to be dealt a very harsh blow by Gorsuch’s 10th Circuit Court of Appeals–when Gorsuch went against all prior recommendations and denied the boy private school placement–placement in a private school geared to assist autistic children just like Luke.
Yet, when Luke’s parents removed their son from public school for several months after exacerbation of attempts to get an Individualized Education Program (IEP) that could help turn him around–he made real progress. But even when Gorsuch’s court recognized that Luke made great progress in such an environment–he made no attempt to modify or ameliorate his court’s decision. In fact, this trial private placement which the parents undertook–indicated quite clearly Luke was able to make progress in a specialized environment outside of the public school. Yet again, Gorsuch’s court, admittedly ascribing to a minority position among the all the Federal Appeals Courts was providing one of the lowest benchmarks of educational assistance to handicapped children than any other circuit in the nation. This was no accident–this was by design.
10th Circuit: Lowest Standard in Nation? 
To shine a light upon this injustice, in the recent 2017 US Supreme Court case Endrew v. Douglas Country School District RE-1 the Court looked to a 1982 US Supreme Court ruling that set the standard of review for determining what Congress envisioned a “Free and Appropriate Public Education” should be. That illuminating standard for educating disabled children is found in Hendrick Hudson School District v. Rowley.
Over three decades ago, Rowley become the guiding beacon for future cases on educational disability. Specifically, it is in Rowley that the US Supreme Court provides both interpretation and guidance as to what Congress meant a “Free and Appropriate Public Education” to be; and Rowley clarifies what an appropriate education for children with disabilities and special need should aim to accomplish.
Justice Roberts outlined this prior precedent in Endrew. That is, for a child fully integrated in the regular classroom, Rowley states that an IEP (Individualized Education Program) that is geared to assist these children, should typically, be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U. S.,at 204. This guidance is grounded in the statutory definition of a what constitutes a Free and Appropriate Public Education (FAPE).
One component of a FAPE is “special education,” is defined as “specially designed instruction . . . to meet the unique needs of a child with a disability.” (See Section 1401(9), (29), of the Individuals with Disabilities Education Act). In determining what it means to“meet the unique needs” of a child with a disability, the provisions of the IDEA governing the IEP development process provide guidance.
These provisions reflect what the Court said in Rowley by focusing on “progress in the general education curriculum.” (See Sections 1414(d)(1)(A)(i) (I)(aa), (II)(aa), (IV),(bb) of the” Individuals with Disabilities Education Act” or (IDEA)).
To be specific, the legal definition of what constitutes a Free Appropriate Public Education (FAPE), can be found in that Act itself, at: 20 U.S.C. Chapter 33, Subchapter I § 1401(9).
These clarifications include:
(9) Free appropriate public education–The term “free appropriate public education” means special education and related services that—
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
Although Rowley provided guidance on what a child, who is “fully integrated” into a classroom—what their education plan should include–Rowley did not provide concrete guidance with respect to a child who is NOT fully integrated in the regular classroom and NOT able to achieve on grade level.
This is the point of contention between then Judge Gorsuch, and the US Supreme Court which he now has joined.
Chief Justice Roberts Sets the Record Straight
The Roberts Court sets us on the path to interpret prior precedent in the case of Rowley which provides guidance regarding the type of program that a child’s Individualized Education Program (IEP) should seek to provide, stating:
The Court holds:
“When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all.”
The Roberts Court elaborates further: 
“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.’ ” Rowley, 458 U. S., at 179 (some internal quotation marks omitted). The IDEA demands more.”
and
“It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
What It All Means
A “unanimous” US Supreme Court just held that children with disabilities need be supplied more than just an IEP that allows them to make minimal, insignificant or as the court stated, merely “de minimis’ progress”–it requires “appropriate progress” for the child. The Court said:
“this standard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit.” To this point, the Supreme Court was emphatic regarding the double-standard. The Court finds that “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.”
On this point, Chief Justice Roberts and the Court vacated the judgment of the Tenth Circuit Court of Appeals, and sent it back for review consistent with their ruling. In the Court’s view, Endrew did not receive a Free and Adequate Public Education (FAPE) under the Individuals with Disabilities in Education Act (IDEA) as envisioned by Congress. As a result of the US Supreme Court’s ruling in Endrew, all Federal Circuit Courts of Appeal across the Country–and specifically the 10th Circuit Court of Appeals–must now apply the same standards or review set out in Endrew and previously in Rowley. Together, this recent US Supreme Court opinion will place all Federal Courts of Appeal on the same footing–to determine if a child with disabilities is receiving a ‘Free and Appropriate Public Education’ as Congress intended under IDEA.
