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Justice Dept.'s Objections May Block Changes in Special-Education

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Washington--Although more than three months have passed since Education Department officials announced their intention to seek major changes in the federal law governing the education of handicapped children, the Administration has thus far failed to send to the Congress specific proposals to amend the law.

The absence of proposed amendments will almost surely mean that changes in the law, P.L. 94-142, the Education for All Handicapped Children Act of 1975, will not be included in House and Senate bills authorizing funds for the programs funded under the law next year, according to Congressional staff aides.

More significantly, a complex set of circumstances--including internal Administration disagreements over the amendments, the efforts of lobbyists for the handicapped, and the fact that 1982 is an election year--could mean that the Administration's efforts to change the law may be postponed indefinitely, according to informed sources in the Administration and on Capitol Hill.

Programs Consolidated

Department officials have prepared a draft bill that would consolidate several discretionary programs into block grants, greatly reduce the current requirements involving states and school systems, and delete many of the procedural safeguards designed to benefit parents--including the "individualized education plan" currently required for each handicapped child.

But the draft proposal has drawn such intense criticism from members of Congress, education associations, parents--and especially, from the U.S. Justice Department--that sources in the Education Department say officials there have been unable to persuade a Senator or a Representative to introduce the bill.

In addition, because the Administration has at the same time begun a much-publicized effort to revise the regulations governing the education of handicapped children, few legislators appear willing to tamper with the statute until experts can gauge the effect of the deregulation effort. (See Education Week, Feb. 24.)

Clearance Process

Both the Justice Department and the Office of Management and Budget reviewed the Administration's proposal as part of a clearance process through which all legislative proposals must pass. A draft of the Justice Department's objections to the bill, prepared by that department's office of legislative affairs and made available to Education Week, reveals that attorneys in the Justice Department--who must defend the federal government in lawsuits regarding the handicapped-education law--believe that some of the proposed changes "would be inconsistent with the leg-islative history of the handicapped-education act."

The Justice Department was especially critical of a proposal to eliminate the individualized education plan, commonly referred to as the "iep," that school officials must design for each handicapped child and make available to parents.

Although dropping the requirement of the plan is ostensibly designed to "eliminate the burden on the state of complying with the technical requirements of an iep as defined in the current statute ... elimination of the iep would in fact increase the state's burdens under the act," according to the memorandum.

Whereas a school board can now use the iep's as "objective criteria'' with which to resolve disputes with parents over their children's education, elimination of the iep "would make it more difficult for the board to satisfy a parent's subjective dissatisfaction. ... It is therefore less likely that complaints would be resolved at the local level under the proposed amendments," the document said.

"Moreover," it continued, "once administrative or judicial review proceedings were instituted by a parent, the school board would have no documentation of how it arrived at its decision as to what constitutes a free appropriate public education for the child involved." Because of this problem, "the amendments would also promote constitutional litigation by parents unwilling to rely on the act's subjective standards."

'Essential Rights'

Joseph Ballard, associate director of the Council for Exceptional Children in Reston, Va., an organization that monitors education programs for handicapped and gifted children, said he concurred with the analysis that the Administration's proposed elimination of the iep requirement would have an adverse effect on the "essential rights" guaranteed handicapped children and their parents. "It obviously strikes at the core of 94-142 and the way it is intended to operate," he said.

The Justice Department memorandum also objected to several other provisions of the Administration's amendments. Among them:

Adding a phrase that would prevent the courts from ordering mandatory summer-school classes for handicapped children, as the United States Court of Appeals for the Third Circuit did in 1980.

The department's memorandum pointed out that the Third Circuit held that omitting summer-school classes for the handicapped "placed an arbitrary limitation on the process whereby the unique needs of handicapped children are determined and special educational programs meeting those needs are developed." The federal government, in a friend-of-the-court brief in that case, defended the need for summer-school classes for children with certain types of handicapping conditions.

Elimination of Requirement

Eliminating the requirement that states educate handicapped children in the three-to-five and 18-to-21 age groups. The amendments would also require states to eliminate such children in counting the number of handicapped children eligible for services--a figure on which the amount of federal grants to the states is based.

"These two amendments would not only relieve the state of the obligation of providing a free appropriate public education to handicapped children in the excepted age groups, but would also provide a strong disincentive against a state's voluntarily assuming the responsibility for meeting the unique needs of handicapped children in those age groups," according to the Justice Department.

Changing the requirement that states "mainstream" handicapped children with nonhandicapped children "to the maximum extent appropriate" to "to the extent appropriate." The amendments would also delete language that requires children to be "mainstreamed" when "supplementary aids and services" make that possible.

That provision "eliminates the objective standard for determining when a handicapped child should be removed from the normal educational environment," the document says. An arbitrary interpretation of the change could result in a state educating "its hearing-impaired children in separate classes rather than providing them with hearing aids which would enable them to function normally in regular classes."

Changing the requirement that evaluation materials and procedures "be selected and administered so as not to be racially or culturally discriminatory," to a requirement that such materials "not be selected or administered in a manner intended to be discriminatory."

The purpose of using an "intent" standard is described by the Justice Department as "unclear." "If an evaluation procedure does not accurately evaluate a child, then regardless of intent, his unique needs cannot be accurately determined," the memorandum stated.

Adding a paragraph that says states must coordinate the provision of ''related services"--health services, psychological counseling, transportation, and so on--to handicapped children. The bill would also permit a state to take "into consideration the cost of education and services when choosing between placements of substantially equal benefit to a handicapped child."

Those two provisions, in conjunction with limitations on the "mainstreaming" requirement, might allow a state "to provide [related] services at a centralized school for the handicapped. Such an interpretation would conflict with the requirement of mainstreaming, where appropriate," according to the Justice Department.

Allowing a school board to conduct "an impartial due-process hearing," when a parent challenges the education provided to his child. (The current law requires a hearing examiner who is not affiliated with the school district.)

'Rudimentary Notions'

That amendment "would violate the most rudimentary notions of due process," the memorandum stated. "If the school board's own determination that it is not violating the handicapped-education act" is considered the final determination in a question about a handicapped child's education, "the result would be to force parents to litigate their complaints in the federal courts," the document said.

The Justice Department's memorandum also disputes allegations made in a letter from Secretary of Education Terrel H. Bell, circulated in draft form, that would accompany the Administration's proposed amendments when and if they are sent to the Congress.

The Secretary's letter "suggests that there is no longer any need for the level of federal intervention currently provided in the handicapped-education act, since all of the states have enacted legislation to protect handicapped children.

"We note, however, that much of this legislation was enacted in response to the handicapped-education act, in order to comply with its requirements, many of which would be repealed by the Education Department's amendments," the Justice Department memorandum stated.

Further, the document listed an objection to the Secretary's statement--made in the letter as well as in numerous speeches since Mr. Bell took office--that "federal assistance covered less than 6 percent of the average total costs of educating handicapped children."

That statement implies that because of the small federal share of the cost, "the level of federal intervention embodied in the act cannot be justified," the memorandum said. "However," it continues, "the department does not indicate the proportion of the costs incurred by virtue of these children's handicaps, in excess of the average total costs of educating nonhandicapped children, that was borne by the federal government." That question "is the more pertinent inquiry," it said.

Finally, the Justice Department objected to an additional amendment, proposed by the federal budget office, that would require federal courts and the federal government to consider compliance by a state with P.L. 94-142 to represent com-pliance with Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against handicapped persons.

"The stated purpose of this amendment is to eliminate the overlapping jurisdiction of the two statutes. However, the two statutes have different purposes and are not coextensive. ... We recommend against the amendment," the memorandum stated.

Arlene Mayerson of the Disability Rights Education and Defense Fund, a lobbying organization, said the budget-office amendment, coupled with the Education Department's proposals, would "water down" the protections afforded handicapped children.

The overlapping provisions of P.L. 94-142 and Section 504 serve different purposes and should "not be played off against each other," Ms. Mayerson added.

'Very Damaging'

Mr. Ballard of the Council for Exception Children said that, considered as a group, the proposed amendments are likely to be "very damaging" to handicapped children and their parents.

Members of Congress, who rejected the Administration's attempt last year to repeal P.L. 94-142, have objected on numerous occasions, in comments and in letters, to the President's plan to amend the law and to reduce funding for educating handicapped children.

President Ronald Reagan would reduce the federal contribution to education of the handicapped from more than $1 billion in the fiscal year 1982 to approximately $845 million next year. The two chairmen of the subcommittees in the House and Senate--who would be expected to introduce the Administration's amendments to the handicapped-education law--are both strong sup-porters of the current law.

A spokesman for Democratic Representative Austin J. Murphy of Pennsylvania, the chairman of the House Subcommittee on Select Education, said that the Representative was familiar with the Administration's proposed amendments and that he did not approve of them.

Congressional sources said that Administration officials have asked Representative Arlen Erdahl, Republican of Minnesota and the ranking minority member of the subcommittee, to introduce the amendments.

Possible Revisions

A source in the Representative's office said, however, that Mr. Erdahl responded to the request with a confidential letter sent on April 6 to Secretary Bell, in which he spelled out his objections to the proposal and suggested possible revisions designed to elicit Congressional support.

One such recommendation was that the Administration not propose any statutory revisions until after the regulatory review process has been completed. Representative Erdahl reasoned that delaying legislative action would permit the Congress to assess degree of "relief" still needed, the source said.

The Republican chairman of the Senate Subcommittee on the Handicapped, Lowell P. Weicker of Connecticut, was said by a spokesman to be "adamantly opposed" to the Administration's amendments.

The spokesman, Nina Bardroma, also said there is a general "consensus" of Congressional opposition which is likely to cause Administration officials to turn their attention from amending the law to making changes instead through the regulatory process.

An Education Department spokesman said the regulations, which were due to be published in the Federal Register on May 1, are unlikely to be ready for publication until June.

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