Gorsuch & Such

Multiple people have weighed in on the pros and cons of Tenth Circuit Judge Neil Gorsuch, President Trump’s nominee to fill the vacant Supreme Court seat left by Justice Antonin Scalia. For years, I’ve attended Federalist Society meetings, and am generally in favor of judicial restraint. However, strict constructionist justices have generally jeopardized the status of disability rights. The intent of this post is to evaluate some of Judge Gorsuch’s opinions in order to anticipate how disability rights may fair should he be approved by the Senate.

Adversaries of Gorsuch’s nomination have been outspoken, particularly in the realm of his previous decisions involving IDEA. As the Bazelon Center reports, Gorsuch has interpreted IDEA extremely narrowly, holding that the law merely requires “the creation of individualized programs reasonably calculated to enable the student to make progress towards the goals within that program….” Thompson R2-J School District v. Luke P., 540 F.3d 1143, 1155 (10th Cir. 2008). More importantly, Gorsuch writes that the standard is “not an onerous one.” Id. This opinion, and others like them, are concerning because it sets a low standard of achievement for students with disabilities. The bare minimum is acceptable, as opposed to fulfilling the full academic potential of the student.

Titles I and II of the Americans with Disabilities Act (and employment-related provisions of the Rehabilitation Act) are other areas in which Judge Gorsuch has routinely ruled against people with disabilities. Perhaps the opinion most routinely cited by Gorsuch critics is Hwang v. Kansas State University. This case involved a professor with cancer, who took a leave of absence to recover from treatment. When the professor was scheduled to return to work, there was an outbreak of the flu at her University. Her doctor recommended an additional period of leave, so as not to jeopardize the professor’s immune system further. This recommendation was denied by the University. Judge Gorsuch opined that a six-month period of leave policy was more than adequate to meet the needs of qualified persons with disabilities, as opposed to requiring the University to determine the particular needs of each individual with a disability. More troublingly, Gorsuch essentially recommends that the professor receive welfare benefits rather than pursue employment, given her situation.

On the other hand, Judge Gorsuch offers hope to the disability community in another very important area: assisted suicide. In 2006, he wrote The Future of Assisted Suicide and Euthanasia, in which he avers that “[a]ll human beings are intrinsically valuable.” Although education and employment are important to people with disabilities (as they are for all people), there is a mounting movement toward assisted suicide, which undermines the value of life with disability, in particular. While I am disturbed by some of Gorsuch’s opinions regarding the government’s role in preserving education and employment rights, it is my right to life that concerns me most today.

Therefore, I think the Gorsuch nomination is a mixed bag for the disability community, despite many on the left clamoring for nay votes. It seems to me the calls to block his nomination from proceeding are silly; his reputation, both academic and professional, is impeccable, and his judicial philosophy is within the mainstream of acceptability. Instead, time would be better spent working on disability rights legislation that is less open to judicial interpretation.

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