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Law Allows Legal-Fee Awards, Legislators Tell Appeals Court

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Washington--A bipartisan group of federal lawmakers has urged an appellate court here to uphold a decision that school districts can be forced to pay the legal fees of handicapped children who win favorable rulings from hearing officers in disputes over educational placements.

The six senators and five representatives filed their "friend of the court" brief last month in a case stemming from the contested placement of 12 District of Columbia special-education students during the mid-1980's. The U.S. Court of Appeals for the District of Columbia Circuit heard arguments in the suit, Moore v. District of Columbia, on Nov. 21 and is expected to hand down its ruling next year.

Michael J. Eig, a lawyer for the students, said that all of his clients had obtained favorable rulings from hearing officers who considered their arguments. He said the suit was filed in the spring of 1987 when local school officials refused to pay the students' legal fees.

The officials argued that the Congress had not intended to authorize the payment of such costs accrued during the administrative-hearing process when it passed the Handicapped Children's Protection Act of 1986.

That law was intended to nullify the the U.S. Supreme Court's 1984 decision in Smith v. Robinson, which held that students could not seek legal-fee awards in special-education suits filed under the Education for All Handicapped Children Act, pl 94-142.

Bipartisan Support

A federal district judge ruled in favor of the Washington students in July 1987.

Eight Democrats and three Republicans joined in the brief filed with the appellate court.

The Democrats are Senators Tom Harkin of Iowa, Edward M. Kennedy and John F. Kerry of Massachusetts, and Paul Simon of Illinois, and Representatives Tony Coelho and Augustus F. Hawkins of California, Major R. Owens of New York, and Pat Williams of Montana.

The Republicans include Senators Robert T. Stafford of Vermont, who is retiring; Lowell P. Weicker Jr. of Connecticut, who lost his re-election bid last month; and Representative James M. Jeffords of Vermont, who was elected to succeed Mr. Stafford in the Senate.

The lawmakers note in their brief that they were either sponsors or cosponsors of the 1986 law, chairmen or ranking minority members of the panels that considered it, or members of the conference committee that approved it prior to the votes by the full House and Senate.

"The words of the act are clear," they argue. "The provision for awarding attorneys' fees to parents who 'prevail' in a 'proceeding' clearly refer to the administrative due-process hearing and state appeal provided for" under pl 94-142.

"There can be no doubt that the effect, meaning, and intent of Congress's action was to provide for attorneys' fees" at the administrative level, they continue.

Although some members of the House and Senate may have "questioned the wisdom of doing so," they say, "all clearly understood that that was precisely what Congress was doing in approving the bill as finally enacted."--tm

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