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State Asserts Its Immunity From P.L. 94-142 Lawsuits

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Washington--Federal courts cannot force Pennsylvania to pay half the cost of a handicapped boy's private-school tuition because the state is immune from lawsuits brought against it under the Education for All Handicapped Children Act, a lawyer for the state told the U.S. Supreme Court last week.

Although the Congress can abrogate states' 11th Amendment immunity from suits in federal courts, it must do so "in unmistakably clear language," Maria Parisi-Vickers, an assistant commonwealth attorney general, told the Justices. Such language, she said, is lacking in the special-education law, P.L. 94-142.

But a lawyer for the father of a handicapped boy who disputed a proposed change in his son's individualized education program countered that the law makes it clear "that Congress intended to waive the states' immunity."

If states cannot be forced to share with local school officials the cost of reimbursing parents for private-school expenses, "parents will have to accept whatever education their school offers" while administrative proceedings take place, said the lawyer, Martha A. Field.

The case argued before the Court, Gilhool v. Muth (Case No. 87-1855), stems from a decision by officials in the Central Bucks School District to change a learning-disabled boy's educational placement during the 1983-844school year. The boy's father protested the change, and before due-process hearings were completed, enrolled him in a private school in Massachusetts.

Federal district and appeals courts eventually ruled that the state's administrative-hearing procedures violated the federal law, and ordered the state to share with the district the cost of one year's tuition at the private school.

Ms. Parisi-Vickers, the state's lawyer, argued that the tuition-reimbursement orders were unconstitutional because, in enacting P.L. 94-142, the Congress did not explicitly waive states' 11th Amendment immunity from being sued in federal courts by their own citizens.

Ms. Fields, however, contended that "there is clear language in the law" that the Congress did intend to waive such immunity. "Every member of Congress had to be aware that the statute would be enforceable against the states," she said.

The Court is expected to hand down its decision in the case by late June.--tm

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