Perhaps now that Judge Gorsuch has become Justice Gorsuch, we can look at how journalists and legal analysts failed to competently report on the Supreme Court’s opinion in Endrew F. v. Douglas County School District, No. 15-827 (March 22, 2017).
In Endrew, the Supreme Court reversed the standard used by the Tenth Circuit U.S. Court of Appeals to determine the adequacy of the individualized education program (IEP) guaranteed by federal law: the Individuals with Disabilities Education Act (IDEA). The Tenth Circuit applied the longstanding rule of that Circuit that the educational benefit mandated by IDEA must merely be more than de minimis. The Supreme Court ruled that to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. That standard is, of course, more rigorous than the Tenth Circuit rule.
Almost immediately after the Supreme Court came down with its decision, then-Judge Gorsuch was confronted with a decision he authored for a unanimous panel of three judges in 2008, Thompson R2-J School District v. Luke P. (No. 07-1304) (August 29, 2008). Judge Mary Beck Briscoe was on the panel. She was appointed in 1995 by then-President Bill Clinton. The other member of the panel was US Senior District Judge James A. Parker of the District of New Mexico, appointed by then-President Reagan in 1987. Judge Parker sat by designation on the panel, a common occurrence then and now.
In the Thompson case, the appellate court applied the “merely more than de minimis” standard. The Supreme Court’s ruling in March was taken up by commentators opposed to Judge Gorsuch’s nomination as a repudiation of the judge. This is an example of the reaction: https://www.forbes.com/sites/emilywillingham/2017/03/23/supreme-court-ruling-trumps-gorsuch-on-education-for-autistic-children/#4cba93f8442c. On its face, this posting fails the test of basic logic. Judge Gorsuch defended himself before the Senate committee as being bound by Tenth Circuit precedent, as was the entire panel of three judges that joined in the unanimous decision. Ms. Willingham quotes Judge Gorsuch and then makes the statement that the Supreme Court unanimously “begged to differ.” Of course, it did no such thing: it made no ruling on whether Judge Gorsuch (or the other two judges on the panel) were bound by Circuit precedent in 2008.
Judge Gorsuch’s claim to have been bound raises two issues. First, had the Tenth Circuit previously ruled on the issue, thereby creating the precedent? Second, is a later panel free to reverse a ruling of law by a prior panel in the same court of appeals? Was Judge Gorsuch correct, then, in his defense to the Senate? He was. Would it have taken much time or effort to so determine? Not at all. It took me about 90 minutes from start to finish. It required a review of only three cases: Endrew, Thompson, and the case cited by Judge Gorsuch in Thompson, Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 727 (10th Cir. 1996).
Start with the Supreme Court decision in Endrew. The very first paragraph charts the progression of the law. The Supreme Court pronounced that there existed a substantive right to a free appropriate public education for children with disabilities in 1982. But waited until 35 years later to rule on what the standard is that the law required when assessing whether the requirements of the law had been met, even though in 1982, the Supreme Court described this as the “more difficult problem.” This is not unusual for the Supreme Court, but 35 years is a long time to leave this question open, especially for the lower courts compelled to apply the law and the children whose IEPs were being drawn up and implemented in those decades.
Judge Gorsuch in 2008 was presented with Tenth Circuit precedent that applied the merely more than de minimis test. In Urban in 1996, not only did the Tenth Circuit adopt such a test, but quoted that test from a 1988 Third Circuit opinion, Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182. Review was sought in the Polk case by the Supreme Court by way of a petition for a writ of certiorari, the normal course for exercise by the Supreme Court of discretionary review. It was denied in 1989, 488 U.S. 1030. Urban also cited to another Tenth Circuit opinion in support of its decision, Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022, 1025-26 (1990). Certiorari was also denied by the Supreme Court when asked to review Johnson, 500 US. 905 (1991).
So, Judge Gorsuch was correct in answer to the first issue presented.
And the second question? The quick answer is: of course one panel of a Circuit is not free to reverse a legal ruling of a prior panel. Judges are not free agents, and are bound to the law as established by judges of their own Circuit. Any other path would erode trust in the legal system. Federal trial judges would be free, in this other regime of no binding circuit precedent, to invent their own legal interpretations, because every time a legal issue went up on appeal, it would be open to unfettered consideration. Judge Gorsuch was obeying core principles of law when he was bound to Tenth Circuit precedent.
But don’t take my word for it. Just read footnote 6 of Judge Gorsuch’s opinion in Thompson where he examined the standard of review of trial court IDEA factual findings. The trial court found in the child’s favor and the school district appealed. The child’s parents urged that the trial court’s factual findings only be reversed if clear error is found, a tough standard, “this court has already rejected application of the clear error standard and, of course, one panel of this court cannot overrule the decision of a prior panel.” Yet, Judge Gorsuch continued, while the panel is bound to apply a modified de novo standard of review “our rule represents the distinct minority position among circuit courts,” and cites to three of them. Can the rule be changed? Yes, but only by an “en banc reconsideration,” which means by all the judges on the Tenth Circuit. There is a lawful way to change the law in a circuit, and when a split among the circuits suggests that another interpretation has garnered majority support, it might be appropriate to do so. In this case, Judge Gorsuch and his fellow panelists concluded that the factual findings were supported under either test.
So, Judge Gorsuch was correct in answer to the second issue presented.
Why then did Supreme Court wait 35 years? It leaves questions unanswered for the longest times, even important questions. When the Court finally addressed the IDEA standard in Endrew, it was probably because one of the nine Justices was taken with the issue and its importance. There is no suggestion in the opinion of a split of views among the Circuit Courts, the usual reason for the Supreme Court to take a case involving the interpretation of a federal statute. We know from Urban that, at least at that time, the Third Circuit had the very same test as the Tenth.
The misunderstanding of Endrew by commentators is a disservice to readers and to the very process by which the career of Judge Gorsuch should have been evaluated. Those who stated that the Court was condemning Judge Gorsuch had not done the work necessary to opine knowledgeably on the issue.
Judge Gorsuch did the right thing, the only lawful thing, in 2008, and he was honest about it in 2017. There may have been other reasons to oppose his appointment, but, in all fairness, this was not one of them.