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Committee Told of Need for Legal Fees in Special-Education Suits

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Washington--Parents and lawyers involved in some of the decade's most important special-education court battles traveled here last week to testify before a Senate panel on behalf of legislation that would allow the awarding of legal fees in such cases.

"We parents do not have the money to fight school districts," said Mary L. Tatro, the mother of a handicapped child whose case was decided in a 1984 landmark U.S. Supreme Court decision. "If school-board members had to pay these legal fees out of their own pockets instead of using the taxpayer money, it would be a different ball game. Without the parents being able to recover attorney fees when fighting for their child's rights, P.L. 94-142 is gutted."

Bill's Provisions

The bill, S 415, introduced by Senator Lowell P. Weicker, Republican of Connecticut and chairman of the Senate Subcommittee on the Handi-capped, would allow parents to receive lawyers' fees if they prevail in cases brought under P.L. 94-142, the Education for All Handicapped Children Act of 1975.

The Senate bill, as well as a similar House bill now being considered, was fashioned in response to last year's Supreme Court decision in Smith v. Robinson, which declared that parents who win cases under P.L. 94-142 cannot receive legal fees. (See Education Week, March 20, 1985.).

Prior to the Court's decision, most parents filed cases under both P.L. 94-142 and Section 504 of the Rehabilitation Act of 1973, because legal fees are available under Section 504, the federal regulations that broadly protect the rights of handicapped individuals.

However, in the Smith decision, the Supreme Court ruled that P.L. 94-142 was intended to be the "exclusive avenue" through which special-education cases are filed, thus barring parents from bringing claims under Section 504 in almost all cases.

Ms. Tatro told the subcommittee that her 9-year-old daughter, Amber, who has spina bifida, required catheterization, which her Texas school refused to provide. Her suit charging that the school district was required to supply catheterization for Amber under the "related services" provision of P.L. 94-142 was filed in 1979 and upheld at the appeals-court level. The school district finally appealed the case to the Supreme Court in April 1984.

The Justices unanimously decided in Irving Independent School District v. Tatro in July 1984 that the school must offer the supportive service to Amber. However, because of the Smith decision, which was handed down the same day, the parents could not receive legal fees.

Ms. Tatro said the estimated cost of her lawyers' services was almost $200,000 by the time the case was heard by the Supreme Court. She said that without help from an advocacy organization in Texas, "we would have been financially unable to continue to fight for our daughter's rights."

"Because they insisted on fighting the original hearing officer's decision, and all subsequent decisions in our favor, the school district also spent more than $200,000 unnecessary dollars, which could have been used to improve educational programs," she added.

'Civil War Raging'

Edward Abrahamson, whose handicapped son was also the subject of prolonged court battle, told the subcommittee that "there is a civil war of sorts raging in the countryside."

Mr. Abrahamson said he spent thousands of dollars to get his son, then 12, placed in a residential program in a case that ended in the U.S. Circuit Court of Appeals for the First Circuit. He said he only managed to continue the case, Abrahamson v. Sharon School Committee and Commonwealth of Massachusetts, through the help of a state advocacy group. The Abrahamsons prevailed in 1983.

E. Richard Larson, the losing lawyer in the Smith case, told the subcommittee that because of the Supreme Court decision, "handicapped children are now accorded less protection than in 1975," when the Congress enacted P.L. 94-142.

"As the law now stands, handicapped children are provided substantially less protection against discrimination than are older people, than are women, and than are blacks and other racial minorities," Mr. Larson said.

No groups opposed to the bill testified at the hearing, to the dismay of Strom Thurmond, Republican of South Carolina, who protested the lack of disagreement.

But Senator Weicker fired back that the National School Boards Association, one of the only groups to publicly oppose the bills, did not ask to testify until after the witness list was drawn up, and then was offered a chance but declined. The nsba, which did testify on the matter before a House committe, opposes both the House and Senate bills.

The Senate version, S 415, which is expected to be voted on by the subcommittee this week, differs from the House bill in that it allows fees at the administrative level without exception, and does not codify Section 504 into the legislation.

As with the House bill, the Senate bill maintains the relationship between Section 504 and P.L. 94-142 by stating that "nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available" under Section 504.

However, most disability groups lobbied for the codification of Section 504--now part of the House bill only--which would bar the Administration from changing the regulations without Congressional approval. They argue that otherwise the Administration may try to weaken enforcement efforts in the wake of the Smith decision, thus leaving parents with no direct federal recourse on rights complaints.

Codification of the regulations into the House bill was strongly opposed by the Administration and House Republicans, and has been one of the main stumbling blocks for the bill, which has been tied up in the House Education and Labor Committee because of the disagreement.

'Get Bill Passed'

However, Victoria Raskin, speaking for the Consortium for Citizens with Developmental Disabilities, an organization of about 20 disability groups, expressed support for the Senate bill. Although the consortium backs codification of Section 504, she said that "our first concern was to get a bill passed."

The principal issue for her group, Ms. Raskin said, is whether fees would be awarded at the administrative level without exception, which the Senate bill allows.

The only disability group to express some reservations about the Senate bill was the Council for Exceptional Children, the country's largest special-education organization. In a written statement to Senator Weicker, the group said it is concerned about language in the bill that allows awarding of legal fees "in any action or proceeding," as determined by the court.

The cec said it supports the awarding of fees at the administrative level only in certain cases, such as when a school system initiates the proceedings, or when a school committee significantly violates federal or state law. Such exceptions are included in the House bill but not in the Senate bill.

But all those who testified at last week's hearing said fees at the administrative level were a necessity.

Edwin Martin, former assistant secretary for the office of special education and rehabilitative services in the Education Department, told the subcommittee that he knew of parents "who faced legal fees of $4,000 for a due-process hearing alone, not court action.

"Should the case require an appeal, or possibly go on to the Supreme Court," he added, "the expense becomes impossible to bear for all but a few wealthy parents."

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