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Can Disability Rights Stay Bipartisan?

The Supreme Court just ruled 8–0 in favor of the rights of disabled students to a real education. Can this unanimity last?

By David M. Perry


Neil Gorsuch testifies before the Senate Judiciary Committee on March 21st, 2017. (Photo: Mandel Ngan/AFP/Getty Images)

Two hours into the third day of the Senate Judiciary Committee’s hearings for Supreme Court nominee Neil Gorsuch, he took a bathroom break. On his way, he later said, he was handed a copy of the Supreme Court decision in the case of Endrew F. v. Douglas County, hot off the presses. The Court had ruled, unanimously, that under the Individuals With Disabilities Education Act (IDEA), disabled students must be granted a plan that offers a chance for “substantive” educational achievement, rather than merely more than minimal (de minimis) achievement. The ruling directly contradicts Gorsuch’s own record as a judge on IDEA cases.

Democrats noticed the contradiction. A few minutes later, Dick Durbin asked Gorsuch why he had so consistently ruled against expansive interpretations of IDEA’s guarantees. Gorsuch, in Thompson School District v. Luke P., had argued that IDEA only guaranteed an education that was “merely de minimis.” But the new decision, written by Chief Justice John Roberts, says: “A school must offer an Individualized Education Program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” This is far more than merely de minimis.

This is a sweeping decision, and a reminder that there’s no reason disability rights should be partisan.

Gorsuch defended his ruling as just following precedent, took umbrage at the idea that he didn’t care about disabled children, and admitted no mistakes. The hearing went on.

Endrew F. v. Douglas County is the second 8–0 ruling in favor of disability rights from the current Supreme Court. As I reported for Pacific Standard, the court ruled in late February that disabled people who encountered discrimination in schools could sue under the Americans With Disabilities Act (ADA). At the time, I speculated, backed up by legal experts, that the language within that decision boded well for Endrew F. It did. This is a sweeping decision — and a reminder of a key fact about disability rights and American politics: There’s no reason they must be partisan.

The essence of this ruling is that, for education to be education, rather than warehousing or babysitting, student learning should be significant. Endrew F., according to the complaint, wasn’t learning in his public school. His IEP goals were pretty much the same each year, while his experience was marked by regular behavioral conflicts with staff and teachers. The school refused to change anything, arguing that they were complying with the law by offering a “more than de minimis” standard of education. So the parents pulled him from school, enrolled in a private school, and watched Endrew learn. They sued to recoup the costs.

As is usual in a Supreme Court decision, the justices did not rule on the specifics of Endrew’s experience (the parents’ claim was upheld at a lower court), but rather on how to interpret the relevant law. Roberts wrote:

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. 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.’” The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

Those are words calculated to gladden the hearts of every disabled student, parent, advocate, and teacher hungry for better resources. They are going to be cited repeatedly in arbitration and court cases for years to come. What’s more, this is no 5–3 split decision, but a unanimous declaration that education must be educative, even for disabled students, with nary a peep of dissent.

Though the Supreme Court may be united, there are signs that bipartisan agreements on disability rights are crumbling.

That’s not unusual when it comes to disability rights. For decades, Democrats and Republicans have come together to pass legislation and support regulations to make America more inclusive for people with disabilities. Not only did a Republican president (George H.W. Bush) sign the ADA in 1990 after it passed with overwhelming majorities, but the same congress and president easily reauthorized the Education for the Handicapped Act and renamed it IDEA. A Republican congress reauthorized the same bill under President Bill Clinton, in 1997. In 2008, President George W. Bush signed the ADA Amendments Act, passed by a Democratic congress, which explicitly expanded ADA protections to people with mental disabilities. President Barack Obama signed a law permitting some disabled people to work and save money without jeopardizing access to benefits, and another encouraging integrated work opportunities for disabled people. These were both passed by huge margins in the otherwise highly partisan 113th and 114th congresses.

But although the Supreme Court may be united, there are signs that bipartisan agreements on disability rights are crumbling. Cuts to Medicaid threaten to drive disabled Americans to nursing homes, strip away necessary services, and re-segregate society. Any threat to the “pre-existing conditions” exception under the Affordable Care Act directly challenges the rights of disabled individuals to have health care. Secretary of Education Betsy DeVos’ incoherence on IDEA during her hearings, which she said should be left up to the states, has eroded confidence in her commitment to enforcing this new Supreme Court ruling. We must reclaim our bipartisan consensus on these basic issues.

Just as Gorsuch was objecting to Durbin’s questioning, a group of other senators and Democratic representatives were gathering with disability-rights advocates outside the Capitol to fight for Medicaid. There were dozens of other simultaneous rallies and news conferences around the country, part of a massive effort to remind America — and the Republicans in Congress — why Medicaid matters.

After the protest, activists from ADAPT, the direct action disability rights organization, entered the Capitol. Chanting, “I’d rather go to jail than die without Medicaid,” they refused to leave. Police closed in.