Supreme Court Nominee Neil Gorsuch Has a Troubling History When Ruling on Disability Rights Cases

President Donald Trump with Supreme Court nominee Neil Gorsuch at the White House. (Photo: The White House)

On Tuesday night, President Trump nominated Neil Gorsuch, a federal appellate judge, as his nominee to replace the late Antonin Scalia to the Supreme Court. As journalists and activists scour through Gorsuch’s judicial record, they would do well to pay attention to his decisions on disability rights.

Two cases stand out during Judge Gorsuch’s time at Tenth Circuit Court of Appeals.

Assistant Professor Grace Hwang worked at Kansas State University – with great success – for 15 years. After a cancer diagnosis, she requested and received a six-month leave of absence covering the fall 2009 semester while she recovered from a bone marrow transplant. As she was preparing to return to teaching in January, the campus erupted in a flu epidemic. Because a flu infection would have been dangerous, given her compromised immune system, Professor Hwang asked for further short leave, during which she could have worked from home.

The university denied her request, and Hwang sued.

Under established disability rights laws, a request for leave due to a disability must be evaluated on a case-by-case basis to decide whether the request would present an undue hardship to the employer. This is a factual determination. Yet, before any evidence could be presented in the case on whether such an accommodation might present a problem for KSU — a federally funded, multi-million-dollar employer — Judge Gorsuch ruled that Professor Grace Hwang’s request for an additional leave of absence was simply unreasonable.

In his ruling, Judge Gorsuch asserted that “showing up” was an essential job function and opined that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” But this was an error of both fact and law. Of course, it is important that an individual report to work. But Grace Hwang had demonstrated her ability to “show up” for 15 years, and she was even able to telecommute during the flu epidemic. There was no question that she could report to work on campus and that she would be able to do so again. What was at issue was whether the university should allow her a short additional leave as a reasonable accommodation to enable her to return to her full duties.

Judge Gorsuch’s ruling contravened Equal Employment Opportunity Commission guidance, every other circuit decision on the issue, and reasoning from the Supreme Court in U.S. Airways, Inc v Barnett.  In Barnett, the U.S. Supreme Court held that a reasonable accommodation may require the modification of a neutral employer rule, even if this functioned as a “preference” for the disabled employee. If Gorsuch followed Barnett’s reasoning in Hwang, the only thing required of the university would have been allowing the professor to work from home for a limited time.

A safety net it is not.

In a second disability rights case, an impartial hearing officer, an administrative law judge, and a federal district court judge all agreed that a young autistic boy, Luke, needed placement in a residential school program due to his total lack of progress in “generalizing” skills — applying skills learned at school to other environments. Judge Gorsuch wrote the opinion reversing. He found that because Luke was making “some progress” toward his education goals in the public school — even though it was undisputed there was no progress outside of school –the school district had met its obligations under the Individuals with Disabilities Education Act (IDEA). But Congress had made it clear that the IDEA should help students make progress toward independent living. Generally, not just in school. The narrow and outdated standard used by Judge Gorsuch is now under review in the U.S. Supreme Court.

If Gorsuch followed Barnett’s reasoning in Hwang, the only thing required of the university would have been allowing the professor to work from home for a limited time.

One of the primary principles underlying disability rights laws is the idea that there will be times when we need to level the playing field to give people with disabilities an equal opportunity — an opportunity to get an education, to get or keep a job, to be productive members of society. The Americans with Disabilities Act and other disability rights laws recognize financial, practical, and administrative burdens. But the laws also emphasize the individual nature of each situation. An accommodation that works for one person might not work for another. Similarly, what would be required for one employer might be a hardship for another. The court needs to look at the facts, not draw arbitrary, bright-line rules.

Judge Gorsuch rulings on the disability cases in front of him thus far raise important questions about his recognition of the rights of individuals with disabilities, and his willingness to ensure that we receive individualized justice.  

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Lynn

I would defend our constitution to the death, but I see a lack of compassion, especially with the Disabilities act.

A quote I came across recently: HOW WE WALK WITH THE BROKEN SPEAKS LOUDER THAN HOW WE SIT WITH THE GREAT

Anonymous

After reading the comments, I wonder if anyone here (including the original author actually read the case). While it's technically accurate to say Judge Gorsuch ruled on the case before evidence was presented, it's misleading! Judge Gorsuch was part of a 3 judge APPEALS court - meaning a lower court had ruled before evidence was presented. The appeals court reviewed and affirmed the case.

The article also implies that the university did not provide reasonable accommodation in this case to allow work from home. I would ask how many people could reasonable expect a college professor to teach on campus courses while working from home. The university had already made reasonable accommodation by having part time staff cover her 3 courses during a 6 month absence - which goes above what the law normally considers a reasonable accommodation.

Clearly distorted details in an attempt to make a statement that could not be supported with the facts presented accurately and fully.

Anonymous

Judge Gorsuch is sterling; he has proven that during every interview he has had for his position on the Supreme Court..

Special needs children require special attention. It is not fair to mainstream them. They require one-on-one attention to learn and progress. Therefore, it obviously is not fair to integrate them with students who are not similarly afflicted. Everyone loses.

Concerning employees with disabilities, Judge Gorsuch is doing the job he has been trained to do; i.e., accurately interpreting the law as opposed to writing it. I am a relatively-recent handicapped person. I can no longer keep up with people who are well. I do not like it; but I have to accept the fact that I am not now, nor will I ever again be, the asset I once was to my employer(s).

The blame for my situation does not lie with Judge Gorsuch....

In God We Trust

Gorsuch & Trump...

I'm surprised at the lack of fire here. You talk about the loss of our rights & a child's right with surgical precision. It completely erasing us as humans. Gorsuch is a threat to disabled ppl's rights. He ruled against a disabled child who should have been protected by IDEA. All 8 Supreme Court justices rejected his ruling. Gorsuch’s approach would effectively strip many disabled students of their right to an education. He refused to provide any real answers to any of these questions at the hearing. Being disabled, it was hard to watch a Supreme Court nominee give non-answers about disabled children's rights in the United States. In my country. Our country. Trump, Sessions, DeVos, WH website, the ACA, Medicaid & now Gorsuch & many more. How much discrimination against us are we going to allow from this administration? We are a decent size voting block. Let them hear us. #Resist Trumplicans who have infiltrated this site can waste their time writing a comment back to me. I won't be reading it so feel free to yell into the void.

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