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Appeal Is Filed in Special-Ed. Suit

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The parents of a child with severe physical and mental handicaps have appealed a federal-court decision that is believed to be the first to declare a child ineligible to receive special-education services because he is not "capable of benefiting" from them.

The controversial ruling has also drawn the attention of federal officials, who plan to file a brief on the child's behalf in the appeal.

A U.S. district judge in New Hampshire ruled in July that the child, who is blind, deaf, and "operating at the brainstem level" is not entitled to receive services guaranteed by the federal Education for All Handicapped Children Act.

In his decision, Judge Martin F. Loughlin agreed with the Rochester (N.H.) School District's contention that the Congress intended to provide special education only for those children who could benefit from it.

"It logically follows that a handicapped child who cannot 'benefit' from special education, or who does not have learning capacity, was not intended to receive special education" under pl 94-142, he wrote. ''Surely, Congress would not legislate futility."

"Under New Hampshire law," the judge held, "an initial decision must be made concerning the ability of a handicapped child to benefit from special education before an entitlement to the education can exist."

The child, 13-year-old Timothy W., has cerebral palsy, is a quadriplegic, and is profoundly retarded. His parents have attempted to enroll him in the Rochester school system since 1980.

Ronald K. Lospennato, the child's lawyer, contended last week that the judge was not properly interpreting the intentions of members of the Congress when they adopted the special-education measure in 1975.

"I think that Congress could easily have assumed all handicapped kids can benefit because there is a lot of evidence out there that suggests that [severely handicapped] kids can benefit," he said.

The child's parents filed their appeal of the decision this month.

Leaders in the special-education field also denounce the ruling.

"We believe that all children are able to benefit from an education," said Fred Weintraub, assistant executive director of the Council for Exceptional Children. "There is no line that separates some that can from some that can't."

"If you start drawing lines, where is it going to be drawn tomorrow?" he asked. "You'll leave it to another judge to say that Sally can't benefit, and we'll be back to where we were 10, 15 years ago."

At the request of the U.S. Education Department, the U.S. Justice Department is filing a friend-of-the-court brief on behalf of the child. Department officials declined to comment on the judge's decision.

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