Supreme Court nominee Neil Gorsuch said he was bound by precedent in a case where he ruled against the family of an autistic student that had sued a school district, claiming the district did not do enough to educate the student. | Getty Gorsuch: 'I'm sorry' about ruling against autistic student

Supreme Court nominee Neil Gorsuch said an opinion he wrote siding with a Colorado school district over the family of an autistic student was "wrong" and "I'm sorry" for it — but he had been bound by precedent.

The 10th Circuit judge made the comments after Sen. Dick Durbin announced during Gorsuch's confirmation hearing that the Supreme Court had just ruled unanimously in a similar case that school districts must go the extra mile to accommodate students with disabilities.


"It’s a powerful decision, it’s a unanimous decision, it was written by the chief justice of the court,” Durbin said. "Why in your early decision did you want to lower the bar so low?"

Gorsuch responded that he is often asked whether he abides by precedent and always like the rulings he reaches.

"Here’s a case for you," he said. "If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me. Heartbreaking."

"But the fact of the matter is I was bound by circuit precedent," Gorsuch continued. "I was wrong because I was bound by circuit precedent and I’m sorry."

The 2008 opinion Gorsuch wrote for a unanimous 10th Circuit took the side of a school in a case in which the parents of an autistic child argued the school wasn’t doing enough to educate the student. While the student showed educational progress in classes, he didn’t seem to retain what he’d learned. Gorsuch's opinion, which reversed three prior rulings, said the school had complied with federal disabilities law because the student needed to show gains that were “merely more than de minimis."

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The Supreme Court ruled unanimously Wednesday that public schools must go the extra mile to educate special needs children. The decision written by Chief Justice John Roberts specifically challenges the Tenth Circuit's minimalist interpretation of the Individuals with Disabilities Education Act, which requires a “free and appropriate public education” for disabled students.

"This standard is more demanding than the 'merely more than de minimis' test applied by the Tenth Circuit," Roberts wrote. "It 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."