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Education Department Clarifies Stance on Rights of Handicapped

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Washington--Fears among special-education advocates here that the Education Department was planning to restructure its enforcement of laws governing the rights of handicapped students were apparently countered last week when Secretary of Education William J. Bennett sent a letter to the Congress pledging to continue "vigorous" enforcement efforts.

Special-education groups and Congressional aides had expressed concern that Education Department officials might decide to ask the office for civil rights to back away from enforcing complaints under Section 504 of the Rehabilitation Act of 1973, leaving most complaints to be handled by the department's special-education office.

Such a move, following a key Supreme Court decision limiting the right of parents to sue under that law, would further curtail the ability of complainants to seek redress of grievances from the government, special-education lobbyists said.

No Change Seen

But in a March 18 letter to Representative Pat Williams, Democrat of Montana and chairman of the House Subcommittee on Select Education, Mr. Bennett said: "We do not believe at this time that the [Supreme Court decision] compels a change in the department's regulations implementing Section 504 ... or in the office for civil rights' monitoring and enforcement duties."

The letter responded to repeated requests made by the select-education panel since last August for a statement clarifying the role of the department's office for civil rights in the wake of the Supreme Court's recent ruling in Smith v. Robinson, which limited the application of federal laws in special-education disputes.

Under current policy, ocr and the office of special education and rehabilitative services share monitoring and enforcement responsibility for federal laws protecting the handicapped. But the special-education office plays a monitoring and technical-assistance role, not an enforcement role; it can withold federal money but cannot investigate individual cases.

For several years, and especially in the wake of the Court's Smith decision, special-education groups have been requesting clarification of the two offices' roles. ocr and osers are now reassessing their joint enforcement efforts and are "working on a new detailed collaboration arrangement which will decide the scope of the areas, including technical assistance and enforcement activity," Tomasina V. Rogers, an ocr spokesman, said last week.

Impact of Ruling

Although the Supreme Court specifically focused on the issue of awarding legal fees to parents in Smith v. Robinson, it also limited the use of Section 504 in special-education cases, declaring that if a remedy is provided under P.L. 94-142 "with more clarity and precision" than under Section 504, Section 504 may not be used as the basis for a special-education lawsuit.

Thus, shifting responsibility for Section 504 out of ocr would leave parents with no direct federal recourse, since P.L. 94-142 requires that complaints be processed administratively at the local and state levels, said Bruce A. Ramirez, assistant director for governmental relations for the Council for Exceptional Children. Any appeal of a special-education program would have to go through the state education agency or the due-process system, Mr. Ramirez said, which would block off one avenue of redress.

Other observers say such a shift would also swamp the special-education office in complaints, leaving it little time for other business.

Seeking Regulatory Shifts

Before the Supreme Court's ruling, complaints could be brought under either P.L. 94-142 or Section 504, or a combination of the two.

However, even before the Court's decision, questions about the division of enforcement between ocr and osers led to a 1980 Carter Administration "memorandum of understanding" between the two offices.

That 22-page memorandum set up a framework for collaboration between the offices, establishing "a framework within which ocr and [the office of special education] will work together to ensure that Section 504 and [P.L. 94-142] are administered in the most effective, efficient, and consistent manner possible."

The memorandum, however, was never actually implemented. And Ms. Rogers said it is no longer "operable, because of changed circumstances,'' largely due to internal reorganization.

One of Reagan's First Goals

In fact, modifying the regulatory structure under both laws was among the first Reagan Administration goals. Vice President Bush, charged by the President with the task of finding ways to ease the burden of federal regulations, targeted both laws for review and regulatory modifications, but no changes resulted from his task force's work.

In addition, early Administration plans included a proposal to consolidate all civil-rights-enforcement ac-tivities within the Justice Department, but that plan, too, was apparently shelved.

According to figures from the National Association of State Directors of Special Education, about 1,400 first-level due-process hearings are held annually under P.L. 94-142; in fiscal year 1984, ocr received 902 complaints under Section 504 for both precollegiate and postsecondary education, and 842 were completed. A break-down of elementary and secondary complaints was not available, an ocr spokesman said. In the first quarter of 1985, 213 cases were filed, and 210 were closed. The cases are carried over from quarter to quarter, the spokesman said.

However, Mr. Ramirez said such statistics do not show how long it took to complete each case. The number of cases still pending under Section 504 was not available from ocr last week.

Staff members in the Senate Subcommittee on the Handicapped say they have received letters from people alleging that ocr has refused to investigate their Section 504 complaints because of the Court's ruling in Smith v. Robinson.

Special Attention

Special attention has been focused on the relationship between the two laws in the past month because of bills introduced in the House and the Senate, which would award legal fees to parents under P.L. 94-142. (See Education Week, March 20, 1985.) The bills also specify that P.L. 94-142 was not intended to "restrict or limit the rights, procedures, and remedies available [under Section 504]."

The Education Department has not taken a stand on either bill, but the general counsel's office confirmed that it expects to complete a ''position paper" on the House bill before April 2.

nsba View

The National School Boards Association is one of the few advocacy groups that has requested that the bills reflect the Court's interpretation, and that grievances be filed under Section 504 only when no avenues are available under P.L. 94-142.

Jean Biler Arnold, representing the nsba, said in testimony before the House Subcommittee on Select Education this month that "dual jurisdiction over what is essentially one claim is inconsistent with Congressional purposes in enacting [P.L. 94-142] and furthermore represents poor management of department resources." Ms. Arnold also argued that "it also places an unnecessary, additional burden upon school districts that must respond to investigations by both offices of essentially the same facts."

Although Ms. Arnold said the nsba does not propose that ocr's jurisdiction over handicapped claims be totally eliminated, she argued that it "should be restricted to claims that fall outside the coverage of [P.L. 94-142]."

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