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Court Restricts Fee Awards In Special-Education Suits

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Washington--Parents who win special-education disputes with school districts cannot be awarded attorneys' fees if their cases do not go to court, a federal appellate court has ruled.

The ruling this summer by the U.S. Court of Appeals for the District of Columbia Circuit involves the interpretation of the Handicapped Children's Protection Act of 1986. The law mandates the awarding of legal fees to the parents of handicapped children who prevail over school districts in special-education "actions or proceedings."

The issue before the court was whether the law applied to administrative or "due process" hearings, which are held by state education departments, as well as court cases.

That question has been addressed in numerous cases in federal district and appeals courts since the law was passed three years ago. But the June 20 decision is the first by a federal appellate court to side with the school district.

Federal appeals courts in two other circuits have held in favor of the parents in similar cases and a third appellate court, in deciding another special-education issue, has indicated that it would concur if asked to do so.

"I think the major importance of this is that it now creates a conflict of circuits and opens the way for the U.S. Supreme Court's consideration," said S. James Rosenfeld, a lawyer and the founder of Edlaw Inc., which publishes a special-education database.

Unclear Intentions

The court's 2-to-1 decision in the case, Lani Moore v. District of Columbia, reverses a 1987 lower-court ruling.

The three-judge panel based its opinion on an extensive review of the law's legislative history.

Writing for the majority, Judge Daniel M. Friedman said, "We cannot say that, viewed in its entirety, the legislative history reflects 'a clearly expressed legislative intention ... that would justify the deparrom the statutory language."'

The court found that, while the House of Representatives' intent to include administrative hearings in the scope of the law was clear, the Senate's intent was not so apparent.

That conclusion was disputed by Judge Harry T. Edwards, the dissenting panelist in the case.

He said the legislative history indicates that "Congress clearly intended to provide attorney's fees for those parents who prevail in administrative proceedings."

Lawyers for the nine learning-disabled children who filed the lawsuit have asked the court to rehear the case--this time before a full, 12-judge panel of the court.

"We certainly think that the court's decision threatens the ability of handicapped children and parents to preserve their rights," said Matthew B. Bogin, a lawyer for the children. "And we think the full court ought to look at it."

His request is being supported by 10 members of the Congress who were instrumental in passing the law. In a friend-of-the-court brief filed in July, the lawmakers said they intended to include "due process" hearings as well as court proceedings when they drafted and passed the law.

The senators joining in the brief include Democrats Tom Harkin of Iowa, Edward M. Kennedy of Massachusetts, John F. Kerry of Massachusetts, and Paul Simon of Illinois, as well as former Senator Lowell P. Weicker Jr., Republican of Connecticut.

The representatives and former House members involved were: Democrats Tony Coehlho of California, Augustus F. Hawkins of California, Major R. Owens of New York, and Pat Williams of Montana, and Republican James M. Jeffords, of Vermont, who opposed the idea while the bill was being debated.

Even if the court turns down the rehearing request, the issue is expected to come up once more this summer. The U.S. Court of Appeals for the Ninth Circuit in San Francisco is scheduled to hear arguments on Aug. 17 in McCormick v. Burlingame School District, a California case involving the same issue.

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