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Bills Back Legal Fees Under P.L. 94-142

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Washington--Parents of handicapped children told a House subcommittee last week that if the Congress fails to pass a bill allowing awards of legal fees in special-education lawsuits, the federal law protecting handicapped students "will become an empty promise."

The awarding of lawyers' fees became a matter of concern to special-education advocates last year, when the U.S. Supreme Court ruled in Smith v. Robinson that par-ents who win cases under P.L. 94-142, the Education for All Handicapped Children Act of 1975, cannot win legal fees for similar claims filed simultaneously under Section 504 of the Rehabilitation Act of 1973. (See Education Week, Aug. 22, 1984.)

The earlier law broadly protects the rights of all handicapped individuals against discrimination; P.L. 94-142, which specifically addresses education for the handicapped, is more comprehensive and sets forth the fundamental rights and procedures to protect the rights of handicapped children in schooling.

However, P.L. 94-142 does not explicitly provide for the awarding of legal fees. In general, parents alleging bias against their handicapped children in education also have alleged violations of Section 504, which does provide for the awarding of legal fees.

The Congress has authorized attorneys' fees in virtually all other civil rights actions brought under federal law; therefore, advocates say that the Congress originally intended to allow such fees but simply failed to make it clear in the law.

Although the Court focused on the issue of legal fees in the Robinson case, it also stated that "Congress intended [P.L. 94-142] to be the exclusive avenue through which a plaintiff may assert an equal-protection claim to a publicly financed special education," thus precluding the possibility of parents filing claims under Section 504.

'Restore the Balance'

Two bills, one introduced in the House by Representative Pat Williams, Democrat of Montana, and another in the Senate earlier in the month by Senator Lowell P. Weicker Jr., Republican of Connecticut, attempt to "restore the careful balance between parent and educational agency that Congress intended to be in place," Representative Willliams said at last week's hearing before the House Subcommittee on Select Education.

Last year, a similar House bill and an identical Senate bill were introduced, but both died in committee, largely owing to time constraints posed by the election and to confusion over the scope of the bills, according to legislative aides.

"I believe [the House bill] is a much improved version of the original bill, because we had time to digest the implications of possible statutory provisions, to talk to each other about our common and unique concerns, and most important, to hear from parents of handicapped children and school officials," said Representative Steve Bartlett, Republican of Texas.

Organizations' Backing

The House bill has the backing of the National School Boards Association, the Council for Exceptional Children, and most special-education advocacy groups.

"I am convinced that without the act being amended to include a reasonable award of attorneys' fees to prevailing parties in any action dealing with [P.L. 94-142], parents will be unable to challenge their school district's decisions, and the act will become an empty promise to the handicapped children of America," said Beverly Galarza of San Antonio, Tex., who fought a five-year battle to secure year-round schooling for her handicapped son.

State Directors Unsure

The National Association of State Directors of Special Education has not yet endorsed either bill.

William Schipper, president of the association, said there are "a lot of gray zones in the Senate bill, and a couple that remain in the House bill," particularly with respect to when legal fees can be awarded.

"As I understand the intent of the bills, it is to reimburse parents for out-of-pocket costs, for having to go to court to right a wrong, which seems fair and proper," he added. "The question is if the Congress can draft legislation that meets that intent without causing more problems."

Areas of Contention

The major focus of debate over the House bill is whether it should allow awards of legal fees for work done in state-level administrative hearings as well as in judicial proceedings.

P.L. 94-142 established a due-process procedure for cases to be heard administratively. According to national figures from nasde, about 1,400 first-level hearings are conducted annually, and about 60 of these result in litigation.

"At the administrative level, which is mandatory and critical, the school district will always be represented by counsel," Ms. Galarza told subcommittee members. "Issues are no less complex and evidence no less important than before a court. Without an attorney, parents have little chance of prevailing despite the merits of their case."

Clarification Requested

However, Jean Bilger Arnold, representing the National School Boards Association, testified against the awarding of legal fees at the administrative level, arguing that "whenever there is the possibility of recovering legal fees, the presence of attorneys inevitably increases.''

Both sides asked for clearer language in the House bill, which now simply states that courts can award legal fees but does not restrict the award to costs incurred in court proceedings.

The Senate bill would allow the award of legal fees at the administrative level.

Before Smith v. Robinson, "legal fees could be awarded at the administrative level," said Carl White, legislative aide to Senator Weicker, chairman of the Senate Subcommittee on the Handicapped. "We wanted the bill to restore the intent of Congress as it was before."

In addition, the House bill differs from the Senate bill in that it specifies that federal funds allocated under P.L. 94-142 cannot be used to pay legal costs. It also offers more detailed guidance concerning the circumstances under which fees can beawarded, and specifies an informal mediation process after a complaint is made.

Dissenting Voice

The only dissenter at the hearing was Linus Wright, general superintendent of the Dallas Independent School District, who represented the American Association of School Administrators.

While Mr. Wright did not oppose the bills, saying that "the draft bill is moving in the right direction," he did say that awarding fees to winning plaintiffs' attorneys "ushers in a whole host of problems.''

Mr. Wright charged that the awarding of such fees would encourage lawsuits in special education, and that "once attorneys are involved, mediation becomes more difficult. An automatic adversarial relationship immediately is birthed."

The superintendent said that if legal fees are offered, the law should limit them. Neither bill now places a cap on fees.

According to a report prepared by the General Accounting Office at the request of Senator Weicker, legal fees were awarded under Section 504 in 10 out of 18 individual cases identified. In the six cases for which information on amounts awarded was available, the legal fees totaled $63,337, ranging from $2,860 to $36,465, the report said. Advocates of the bills use the figures to prove that most attorneys' fees awarded, with some exceptions, are generally low.

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