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Special-Education Ruling Overturned in N.M.

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The United States Court of Appeals for the 10th Circuit has reversed, and sent back to a lower court, a 1980 ruling that New Mexico's public schools discriminated against handicapped children.

The decision stems from a lawsuit originally brought in 1975 by the New Mexico Association for Retarded Citizens (NMARC)--a 2,000-member group serving parents of retarded children--and other groups who alleged that the state's treatment of handicapped students violated Section 504 of the Rehabilitation Act of 1973.

Section 504 provides that "no otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from participa-tion in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

In the original decision, a judge in the Federal District Court in Albuquerque had concluded that there was evidence that discrimination occurred, noting that the occupational-, physical-, and speech-therapy programs offered by the state were insufficient, as were diagnostic services for the handicapped. The judge also held that the state provided inadequate funding for special education, and he directed the state and the NMARC to submit plans for compliance with Section 504 regulations.

In New Mexico, the only state that does not participate in federal special-education programs, all costs of educating handi-capped students are borne by the state.

The three-judge appeals panel returned the case to the lower court because, it said, the district court judge had failed to address the opinion rendered by the U.S. Supreme Court in a 1979 case, Southeastern Community College v. Davis.

In that case, the Court ruled that the purpose of Section 504 is to prohibit discrimination against handicapped people, not to mandate affirmative action for such individuals.

That decision, the appeals court said, "eroded somewhat the breadth of Section 504 compliance regulations."

Distinctions 'Sometimes Unclear'

The Supreme Court's decision in the Southeastern Community College case "is not fatal to the [plaintiffs'] Section 504 claim," the appeals court stated. "The Court plainly suggests that the distinctions between affirmative action unnecessary under Section 504 and discrimination made unlawful by [it] are sometimes unclear."

The district court had rejected the state's plan for educating handicapped children and adopted the association's. The state subsequently appealed that decision, arguing, among other points, that the district court judge exceeded his authority by fashioning an overly broad remedy.

The appeals court instructed the lower court to evaluate the NMARC plan--which it says may be too broad--in light of the Supreme Court decision.

For the lower court to conclude that discrimination has occurred, the appeals court said, it must be shown that:

The state's existing education programs preclude the handicapped from activities and benefits enjoyed by the non-handicapped;

That program modifications would result in the handicapped obtaining these benefits; and

That program modification would not jeopardize the state's educational system.

Many objectives included in the New Mexico plaintiffs' lengthy remediation plan--which calls for a far greater commitment than the state now makes to special education in terms of funding, personnel, and new programs--have been accomplished by the state since legal proceedings began, both sides agree.

Glen Van Etten, president of NMARC, said that since the suit was filed the state has "made tremendous changes. Service in New Mexico [for the handicapped] is now for the most part very good. Funding and the number of programs have increased astronomically."

"There are still some areas they have not made as much progress in as we would like," Mr. Van Etten added. "And they haven't made any effort to put any of these changes in writing in the form of regulations. We are hanging onto the lawsuit so we can get guarantees."

Elie Gutierrez, state director of special education and a defendant in the suit, said he was pleased with the decision, but wished the matter had been resolved once and for all. "I think many of the programmatic issues in their suit have been resolved," he said. "I don't see what else we can do." The state education department is currently drawing up new special-education regulations.

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