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High Court To Rule on Related Services, Law on Draft Registration, Federal Aid

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Washington--The U.S. Supreme Court agreed last week to decide how far a federal anti-discrimination law requires school districts to go in providing medical services, such as catheterization, for handicapped students.

The Court also announced on Dec. 5 that it will decide whether the U.S. Education Department can deny federal aid to young men who have not registered for the draft, and it invited the Reagan Administration to file a brief in a South Dakota school-finance lawsuit.

The Justices' review of the catheterization issue stems from an April 25 decision by the U.S. Court of Appeals for the Fifth Circuit in Irving Independent School District v. Tatro (Case No. 83-558).

In that case, the appeals court ruled that catheterization--the insertion of a small tube into the urethra to relieve the bladder of urine--is a "related service" guaranteed students under the Education for All Handicapped Children Act of 1975, P.L. 94-142. (See Education Week, May 25, 1983.)

The statute defines a related service as one "required to assist a handicapped child to benefit from special education." It goes on to say, however, that medical services covered under this definition "shall be for diagnostic and evaluation services only."

The lawsuit was initiated in 1979 by the parents of Amber Tatro, a seven-year-old of normal intelligence who was born with spina bifida, a condition that prevents her from urinating normally.

The Tatros had requested that the school district enroll their child, who was 3 years old at the time, in its special-education program for preschoolers. The district agreed and developed an individualized education plan for Amber, but refused to provide the catheterization treatment.

A federal district judge in Texas upheld the school district's decision not to provide the treatment, but on appeal the Fifth Circuit Court said the district judge's opinion was too narrow and sent the case back to him for a rehearing.

The appeals court also created a three-part test for determining whether a handicapped child is entitled to medical services. Under that test, the child must require special education; someone other than a licensed physician must be able to administer the service; and the service must be needed for the child to benefit from special eduation.

The district judge, using the three-part test, then ruled that Amber was entitled to catheterization treatment. The school district contested that decision, but it was upheld by the appeals court.

In a brief filed with the Justices, the school district argued that the lower-court decisions left unanswered "major questions of significant importance to the general public."

"The additional revenue necessary to provide for the treatment, the personnel necessary for implementation of same, and insurance necessary to guard against liability for potentially catastrophic losses must be considered," the school district said. "Certainly the states, the local education agencies, and the individual taxpayers are entitled to a definitive answer regarding whether or not [P.L. 94-142] has created an affirmative obligation to provide 'medical treatment' to handicapped students."

Draft-Registration Case

The draft-registration case that the Court decided to hear, Selective Service System v. Minnesota Public Interest Research Group (No. 83-276), challenges the constitutional-ity of a 1982 law linking registration and student financial aid. The law, which was passed as an amendment to a Defense Department authorization bill, is commonly known as the Solomon Amendment for its sponsor, Representative Gerald B. Solomon, Republican of New York.

Last June, U.S. District Judge Donald D. Alsop struck down the law on two grounds. First, he said, it unconstitutionally determines that alleged nonregistrants are guilty and inflicts punishment without due process. Second, Judge Alsop said, the requirement that students certify that they have registered for the draft as a condition of receiving financial aid violates the Fifth Amendment's prohibition against self-incrimination. (See Education Week, Aug. 17, 1983.)

The Reagan Administration asked the Justices to bypass the U.S. Court of Appeals for the Eighth Circuit and accept the case on direct appeal. In its brief, the Administration said Judge Alsop's decision would discourage compliance with the law and "reward self-proclaimed lawbreakers."

In Lawrence County v. Lead-Deadwood School District No. 40-1, (No. 83-240), the Justices have been asked to decide whether a South Dakota funding statute is unconstitutional because it is in conflict with a federal law that provides payments to local government units in lieu of property taxes on federal lands.

Under the Payments in Lieu of Taxes Act of 1976, when the federal government acquires large amounts of property--for example, for additions to the National Park System--it must compensate local governments for property taxes lost as a result of such acquisitions.

Lead-Deadwood school officials brought suit in state circuit court against the Lawrence County commissioners in February 1982 in order to force them to disburse funds received under the federal law to local schools. The school district would have received 60 percent of those funds under a South Dakota law that directs that all federal payments in lieu of taxes be distributed in the same manner as state taxes.

The county officials countersued, claiming that the federal law states that funds received under the act could be used for any local government purpose. Under the Sixth Amendment's "Supremacy Clause," they argued, federal laws supersede state laws whenever the two conflict. The state trial court ruled in favor of the county commissioners' position in September 1982, but that decision was reversed by the South Dakota Supreme Court a month later. Last week, the Justices invited the Reagan Administration to file a brief outlining its position in the case.

In other action last week, the Court, without comment, upheld a federal appeals court's decision that at-large elections for the school board in Mobile County, Ala., violated the civil rights of black residents.

This fall, the county, under court order, agreed to begin electing members to its five-member board under a ward system that ensures black representation. The Justice Department filed a brief opposing the county's challenge of the appeals court's decision in the case, Board of School Commissioners v. Brown (No. 83-334).

The Court last week also rejected a Texas school district's claim that a former teacher and coach filed his race-discrimination claim against it too late. In Big Spring Independent School District v. Griffin, (No. 83-378), the Court upheld a federal appeals court's ruling that James Griffin's claims of race discrimination under the Fourteenth Amendment were still alive, even though he filed his suit more than two years after being notified by the school district that his contract was not renewed. Under Texas law, teachers must file a grievance in nonrenewal cases within two years of their dismissal. The case will go back for trial in the U.S. District Court for the Northern District of Texas.

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