The House Education and Labor Committee, defeating a slew of Republican amendments, last week passed legislation that would allow parents to collect legal fees in special-education lawsuits involving schools.
The Senate had unanimously approved a similar bill, S 415, in July.
The bills are designed to nullify the Supreme Court’s ruling in Smith v. Robinson. In that ruling, the Court held that parents may not file lawsuits under Section 504 of the Rehabilitation Act of 1973 if remedies are available under P.L. 94-142, the Education for All Handicapped Children Act of 1975. Legal fees are not available under P.L. 94-142. (See Education Week, March 20, 1985.)
Prior to the Supreme Court’s decision, most parents challenging special-education programs filed suit under both P.L. 94-142 and Section 504.
House Version
Like the Senate bill, the House version would allow the awarding of legal fees at the administrative level as well as after formal litigation.
House Republicans and the Administration have strongly protested such a provision, claiming it will prolong litigation. However, advocacy groups claim that without that provision, many parents would not be able to present their case adequately at a due-process hearing.
However, the House bill also includes another controversial provision that was deleted from the Senate version: It incorporates into the statute federal regulations protecting the rights of all handicapped individuals, thus barring future changes in the regulations without Congressional approval.
Representative Steve Bartlett, Republican of Texas, offered an amendment to eliminate the codification, saying that incorporating the regulations into law “may one day come back to haunt this committee.”
But Representative Mario Biaggi, Democrat of New York, said that the codification is necessary because “there has been an attempt on the part of the Administration to deregulate” and that provisions protecting the handicapped “have never been under such attack.”
The Senate bill also bars “double dipping” by stipulating that publicly funded lawyers, such as those employed by legal-aid groups, representing parents may be reimbursed only for costs and not at the prevailing market rate. The House version does not include that stipulation.
The legislation will probably be voted on by the entire House early next month, a Congressional aide said.
