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All Handicapped Must Be Served, Court Concludes

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Public schools must educate all handicapped children, regardless of how little they might benefit or how severe their disability, a federal appeals court has ruled in a closely watched New Hampshire case.

The unanimous ruling last week by the U.S. Court of Appeals for the First Circuit is legally binding only in four New England states and the Commonwealth of Puerto Rico.

But it is thought to be the first ruling by a federal appellate court to address what has come to be known as the "zero reject" philosophy, which holds that all children—no matter how handicapped—are entitled to public schooling under the federal special-education law.

And experts say the ruling by the three-judge panel in Boston could have ramifications for the education of handicapped children in public schools throughout the country.

"If anybody thought there was any basis for excluding any kid, this puts an end to it," said Frank Laski, a lawyer who filed a "friend of the court" brief in the case on behalf of the Association for Persons with Severe Handicaps.

The case, Timothy W. v. Rochester School District, involved a 14-year-old boy who had been denied special-education services in his hometown of Rochester, N.H. The boy, who was 3 when the dispute first arose in 1978, is multiply handicapped and profoundly mentally retarded—so disabled, in fact, that experts testifying in court disagreed as to whether he could voluntarily respond to stimuli.

The case went to a federal district court in 1984. After four years of hearings, the court concluded that the boy did not qualify for services under state and federal special-education laws.

The appellate court, reversing the lower court's decision, said the Education For All Handicapped Children Act of 1975, or P.L. 94-142, mandates "that all handicapped children, regardless of the severity of their handicap, are entitled to a public education."

"School districts cannot avoid the provisions of the act by returning to the practices that were widespread prior to the act's passage ... of unilaterally excluding certain handicapped children from a public education on the ground that they are uneducable," Judge Hugh Bownes wrote for the court.

The panel sent the case back to the district court, ordering that it supervise the development of an individualized education plan for Timothy and assess damages against the school district.

'Wasting' Services?

Rochester school officials and their lawyers said last week that no decision had been made on whether to seek a rehearing before the First Circuit Court or to appeal directly to the U.S. Supreme Court.

"We've never denied that Tim needed services, but those services should be medical in nature," said Raymond Yeagley, superintendent of the Rochester district, which is located on the state's southern coast.

"What this does," he said, "is open the door to unlimited medical services being placed in the education budget."

The district "could certainly do a lot for other handicapped children and other children with the money they're wasting on Tim," said Gerald K. Zelin, the district's lawyer.

Mr. Zelin said the Rochester district—New Hampshire's fourth- largest, with a student population of 4,000—last year spent about $15,000 for Timothy's education. Since January 1987, the boy has been served in a regional development center where he receives physical and occupational therapy and is being taught to eat and to signal his toileting needs.

Born two months prematurely,4Timothy experienced within the first few months of life an intracranial hemorrhage, seizures, hydrocephalus (an enlargement of the cortical cavities of the brain), meningitis, and other maladies.

During hearings before the trial court, the boy's mother and therapists testified that Timothy could hear loud noises, see bright light, and respond to touching and familiar voices.

But a developmental pediatrician testified that Timothy "did not have educational needs and could not benefit from education" because X-rays had shown that he had virtually no cortex in his brain. The cortex is the brain mantle, which is required for all learned skills that develop after birth.

In the ruling last July, the district judge held that the special-education law requires that, before a child receives special services, a determination of whether he will benefit from the services must be made. The court concluded that Timothy could not benefit because he could not be educated.

The appellate court did not reject the district judge's findings on Timothy's educability as clearly erroneous. However, it took issue with the lower court's interpretation of federal special-education law.

According to Ronald K. Lospennato, the lawyer who represented Timothy for the Disability Rights Center in Concord, N.H., the appellate court's decision to reverse the lower court "reaffirms what the Education for all Handicapped Children Act said all along: that all children are entitled to a free, appropriate education. They shouldn't have to fight to get in the schoolhouse door."

In addition to the Association for Persons with Severe Handicaps, a number of other groups or organizations had filed briefs in the case supporting Timothy. They included: the Association for Retarded Citizens of the United States and its New Hampshire affiliate, tash: New England, the National Association of Protection and Advocacy Systems, four U.S. Senators, and, in an unusual filing, the U.S. Justice Department.

"That's one of the things that made the case closely watched," said S. James Rosenfeld, a lawyer who followed the case and is president of Edlaw, Inc., which publishes a special-education-law database. "It's very unusual for the Justice Department to go in at this level."

Briefs in support of the school district had been filed by the National School Boards Association and its New Hampshire chapter.

"The real issue in that case is going to come up when you start seeing small school districts that do not have the resources having to spend $100,000 a year for custodial care," said August Steinhilber, general counsel for the nsba "Then you will have a political question and not a legal one."

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