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Justices Decline Special-Ed. Case On School for All

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Washington--The U.S. Supreme Court last week declined to review a controversial appellate ruling that public schools are obligated to educate all handicapped children, regardless of how little they might benefit.

Without comment, the Justices rejected an appeal by the Rochester, N.H., school district, which had been ordered by a federal appeals court to serve a 13-year-old boy who is so profoundly retarded that experts disagree over his ability to respond to stimuli.

The case, Timothy W. v. Rochester, N.H., School District (Case No. 89-515), is among the first to address what has come to be known as the "zero reject" philosophy, which holds that, under federal special-education law, no child is too handicapped for public schooling. The suit has been closely watched by advocates for disabled children, as well as by groups representing school boards, local governments, and school administrators.

School groups have expressed concern over the financial and other implications of providing schooling for the estimated 4,000 children nationwide who may be as seriously handicapped as Timothy W.

The decision the High Court let stand sets a precedent only within the jurisdiction of the U.S. Court of Appeals for the First Circuit, which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

The plaintiff in the case has been severely handicapped from his birth two months prematurely in December 1975. School officials in the Rochester district contended they were not required to pay the $15,000-a-year cost of educating him because he was incapable of learning "even the most rudimentary skill."

"Timothy has consistently exhibited profound mental and developmental retardation, deafness and blindness, a persistent convulsive disorder, and severe cerebral palsy," the district said in a brief filed with High Court. "He is virtually immobile, suffers from spasticity, and has contracted joints, dislocated hips, and scoliosis."

But the boy's mother and therapists testifying in a lower-court trial described the boy's abilities differently. They said he sees bright light, smiles when happy, cries when sad, and responds to touching and talking.

The First Circuit Court ruled in May that the Education for All Handicapped Children Act, P.L. 94-142, mandates that "all children, regardless of the severity of their handicap, are entitled to a public education."

"It is the state's responsibility to experiment, refine, and improve upon the educational services it provides to handicapped children," the appellate court said, "and not to exclude handicapped children if there is no proof that they can benefit from the existing program that a state might offer at a particular time."

"Any time you start to exclude anybody from education, you start to embark on a very dangerous road," Ronald K. Lospennato, the lawyer for the Disabilities Rights Center Inc. who represented the boy, added last week.

The Court's decision to leave the appellate ruling intact drew applause from groups promoting the rights of disabled children and adults.

But Gwendolyn H. Gregory, deputy general counsel for the National School Boards Association, which filed a friend-of-the-court brief in the case, took a different view. She said the decision left untouched by the Court had set a dangerous precedent.

"It gives the courts language which might require expanding related services," such as occupational and physical therapy, she said. "We don't have enough money as it is--let alone to have to pay for non-educational services."

Previous court rulings in other cases have held that schools must provide related services only if they are necessary in order for a child to benefit from special education, added Gerald K. Zelin, the lawyer for the New Hampshire district. But the appeals court in this case made no distinction between special education and related services, both Mr. Zelin and Ms. Gregory said.

As part of the boy's "educational needs," it listed, for example, ''postural drainage, motion exercises, sensory stimulation, positioning," and other assistance generally provided by therapists as related services.

The NSBA was joined in its brief by the American Association of School Administrators. Among others supporting the school officials' position were the International City Management Association, the National Conference of State Legislatures, the National League of Cities, and the U.S. Conference of Mayors.

Still at issue in the case is $175,000 in damages being sought by the boy's mother. That lawsuit is pending in a federal district court.

In other action last week, the Supreme Court heard oral arguments in two cases centering on adolescents' access to abortion. The cases could resolve the uncertainty surrounding the constitutionality of parental-notification laws and other restrictions aimed at young people. (See Education Week, Nov. 29, 1989.)

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