By Susan Pickup, Staff Writer
In the 8-0 decision Endrew F. v. Douglas County School District, the U.S. Supreme Court held in favor of a student with autism and attention deficit disorder (ADD), a small victory for students with disabilities everywhere.
The issue dealt with the federal Individual with Disabilities Education Act (IDEA). IDEA grants states federal funding toward special education as long as the state complies with certain requirements. The state must provide “free appropriate public education” to all students with disabilities, known as the FAPE standard. IDEA requires that those students with disabilities have an individualized education plan (IEP) created by the student’s teachers in order to calculate the student’s needs and progress throughout school.
The Petitioner in this case was a special needs student who was placed in a special education program in a Colorado public school. The Petitioner’s family, however, transferred him to a private school in fifth grade because they believed the public school did not provide an adequate education and IEP for their son under IDEA. Soon after, the Petitioner’s family requested that the school district reimburse them for the tuition of the private school.
The lower courts held in favor of the school district. The district court found that despite that the Petitioner “did not reveal immense educational growth,” it was “sufficient to show a pattern of, at the least, minimal progress.” The Tenth Circuit Court affirmed. The court used precedent from the 1982 Rowley case. It held that Petitioner had a sufficient education under IDEA as long as the IEP was calculated to confer an “educational benefit” that is “merely . . . more than de minimis.” The latter phrase was the court’s addition.
The Supreme Court vacated and remanded. Its reasoning was that a school must offer an individual education plan “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Chief Justice Roberts, contradicting the Tenth Circuit, stated “[i]t cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.” The Court further stated “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.”
Interestingly, the decision was decided during the confirmation hearings of potential Supreme Court Justice Neil Gorsuch, who is from the Tenth Circuit. As the Supreme Court just vacated his court’s opinion, it was bound to be brought up during questioning.
When asked about it during his confirmation hearings, Gorsuch said, “I was wrong, Senator, because I was bound by circuit precedent, and I’m sorry.” When asked as to why his opinion added the language “merely more than de minimis” to the IDEA standard, Gorsuch said that “to suggest that [he has] some animus against children, Senator, would be mistaken.”
“We have to look to your words to look into your heart,” said Sen. Dick Durbin in response, “and when I look at the word ‘merely,’ it scares me.” As of this writing, how Gorsuch’s responses will ultimately influence his confirmation vote is yet to be seen.
 Endrew F v. Douglas Conuty Sch. Dist., No. 15–827., 2017 WL 1066260 (2017).
 Id. at *4.
 Id. at *7.
 Id. at *8.
 Endrew supra note 1, at *8.
 Id. at *8.
 Id. at *10.
 Id. at *11.
 Id. at *12.
 NPR, Supreme Court Rules in Favor of A Special Education Student, http://www.npr.org/sections/ed/2017/03/22/521094752/the-supreme-court-rules-in-favor-of-a-special-education-student (last visited March 23, 2017).
 Endrew supra note 10.
Washington Post, Supreme Court sets higher bar for education of students with disabilitieshttps://www.washingtonpost.com/politics/courts_law/supreme-court-sets-higher-bar-for-education-of-students-with-disabilities/2017/03/22/fcb7bc62-0f16-11e7-9d5a-a83e627dc120_story.html?utm_term=.0b2b7d5883a4. (last visited March 23, 2017).
 Neil Gorsuch confirmation Hearing on March 22, 2017 (CSPAN).