High Court Asked To Restrict Medical Services for Students

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Washington--A lawyer for a Texas school district asked the U.S. Supreme Court last week to rule that a federal anti-discrimination statute requires schools to provide handicapped students with medical care only for purposes of diagnosis and evaluation.

Catheterizing a student's bladder in order to allow her to urinate is not a "related service" as defined under the Education for All Handicapped Children Act of 1975, argued James W. Deatherage on behalf of the district in Irving Independent School District v. Tatro (Case No. 83-558).

"There was a limitation placed by Congress in that definition, and that limitation was diagnosis and evaluation only," he said. "We submit there is nothing in this act requiring school districts to provide clean, intermittent catheterization."

But, argued James C. Todd, the lawyer for the seven-year-old girl whose parents filed the lawsuit, catheterization "is surely not among the greater burdens that school districts are required to bear" under the anti-discrimination law, P.L. 94-142.

"Catheterization is so simple that a person of average intelligence can be trained to do the procedure in less than 30 minutes," Mr. Todd said. "We are not asking the school district to cure her."

Related Services

The Justices' decision to hear the case stems from an April 1983 federal appeals court ruling that catheterization--the insertion of a small tube into the urethra to empty the bladder--is a related service guaranteed to handicapped students under P.L. 94-142. (See Education Week, May 25, 1983.)

The law defines such services as those "required to assist a handicapped child to benefit from special education." But it goes on to say, however, that medical services covered under this definition "shall be for diagnostic and evaluation [purposes] only."

The lawsuit was initiated in 1979 by the parents of Amber Tatro, a child of normal intelligence who was born with spina bifida, a condition that prevents her from urinating normally. Amber's parents requested that the school district create an individualized education program for her that includes catheterization, but the district declined, saying that the service was "medical treatment" not required under the law.

The Court could rule in the case before its summer recess, which begins in early July, or it could wait until the after the beginning of its next session in October to hand down its decision.

Buffalo Desegregation

In other actions last week:

The Court turned down a request by the mayor of Buffalo, N.Y., that it review a federal district judge's $7.4-million funding order in the city's school-desegregation case, Griffin v. Board of Education (No. 83-625).

In papers filed with the Justices, lawyers for Mayor James D. Griffin unsuccessfully argued that it was unconstitutional for the judge to direct the city to appropriate the funds, in part because the sum "was picked out of the air" by the school board's lawyer.

The municipal government also challenged as false the school board's claim that its entire budget is required for desegregation.

The city noted that the National Association for the Advancement of Colored People, which also is involved in the lawsuit, disagreed with the school board's position when the case was tried before a federal appeals court. During that trial, lawyers for the civil-rights group stated that the Buffalo board and other school boards around the country were "giving desegregation a bad name" by claiming that "everything is required for desegregation."

The mayor, residents, and taxpayers of Buffalo have been exonerated of any fault in the desegregation case, the city argued in its motion seeking review of the case.

"The responsibility was that of ... the school board itself," it said. "Now, to escape from the consequences of its wrong, the school board is asking city residents and taxpayers to pay for an extravagant, and unproven, voluntary 'interdistrict' remedy, which may, or may not, pan out."

Lawyers' Fees

The Justices agreed to decide whether civil-rights lawyers can win fees for work done in optional state administrative proceedings.

The Court's decision to review this question stems from the dismissal of a Dyer County, Tenn., teacher in 1974 on charges of "unprofessional conduct and insubordination."

The teacher, Leonard Webb, challenged his firing in state administrative hearings for four years before filing a race-bias claim in federal court. Although the suit was settled out of court in Mr. Webb's favor, federal district and appeals courts have ruled that his lawyer is not entitled to collect fees from the defendant school district for the work he did while the dispute was being fought at the state level.

The case, Webb v. County Board of Education (No. 83-1360), most likely will be heard next fall.

In a unanimous ruling, the Court held that teachers and other public employees should not be prevented from filing federal civil-rights lawsuits following the conclusion of union arbitration proceedings.

Allowing such proceedings to preclude the filing of suits under section 1983 of the Civil Rights Act of 1871 would "severely undermine" that statute, the Justices wrote.

The case, McDonald v. City of West Branch, Mich., involved the dismissal of a police officer.

Vol. 03, Issue 31

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