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RESPONSE TO QUESTION FROM SENATOR STAFFORD TO WILLIAM DUSSAULT

Question: Mr. Dussault, it is my belief that making attorney's fees available through the courts would encourage earlier resolution of disputes between parents and local school districts. Critics of this legislation believe that providing fees would encourage attorneys to extend the process rather than resolving the issue at the earliest possible date.

What is your opinion on this matter? Response: It is unequivocally my position that attorneys who are knowledgeable in special education matters and are actively representing their clients will seek to resolve a dispute at the earliest possible stage in the dispute resolution process. The primary reason for this is that the child with the disability has only a specific limited amount of time to spend in publicly funded special education. The longer the time that is spent in conflict over the specific aspects of a program, the less time the student is going to have in an appropriate program. Most parents realize how important those years of publicly funded education are and are most anxious to resolve the disputes as quickly as possible so that their children may move into an appropriate program. The statutes "status quo" provision requiring that the child stay in the disputed placement during the pendency of the proceedings act as a powerful disincentive for the parents.

Additional Comments of

B. Richard Larson

on behalf of the Anerican Civil Liberties Union

on s. 415, the
Handicapped Children's Protection Act

before the
Subcommittee on the Handicapped
Committee on Labor and Human Resources

United States Senate

May 31, 1985

Subsequent to the hearing held on May 16, 1985 on the Handi

capped Children's Protection Act of 1985, I received through

Subcommittee Chairman Lowell Weicker, Jr., an additional question

posed to me by Senator Robert T. Stafford.

That question is as

follows:

Mr. Larson, since the Supreme Court ruled in Smith

v. Robinson, we have been told that parents will have a

difficult time finding legal representation in special

education suits.

Can you speak to this co-called

"chilling effect" on the availability of private attor-
neys to represent handicapped children and their

families?

In response to Senator Stafford's thoughtful question, I have no doubt that Smith v. Robinson has had (and will continue

to have, unless Congress acts to overrule Smith v. Robinson) an

overwhelming "chilling effect" on the availability of private

attorneys to represent handicapped children and their families. This conclusion flows from four interrelated realities, each of

which is addressed hereafter:

(1) Smith v. Robinson barred fee

awards in actions and proceedings involving handicapped children; (2) fee awards provide a necessary financial carrot to attract private practitioners to provide legal representation to civil rights plaintiffs in general; (3) fee awards are even more neces

sary to attract private practitioners to represent handicapped

children in special education actions and proceedings; and there

fore (4) the effect of Smith v. Robinson is the denial to

handicapped children and their families of the legal representation which is necessary to assert their rights.

1.

The Supreme Court in Smith v. Robinson Barred Fee Awards in
Actions and Proceedings Involving Handicapped Children
There is, at the outset, no question about what the Supreme

Court did in Smith v. Robinson.

It held, with regard to handi

capped children covered by the Education for All Handicapped

Children Act (the "EAHCA"), Pub. L. No. 94-142, that there is no

availability of court-awarded attorneys fees for lawyers who

successfully represent handicapped children and their families.

The Court in Smith v. Robinson reached this conclusion not

only with regard to actions and proceedings to enforce the EAHCA.

The Court also went much further.

It held that handicapped

children covered by the EAHCA have no legal rights under S 504 of the Rehabilitation Act, and that there accordingly is no avail

ability of fees under S 505 of the Rehabilitation Act (as amended

in 1978).

And the Court also held that such handicapped children

have no constitutional rights which can be asserted through 42

U.S.C. S 1983, and that there accordingly is no availability of

fees under 42 U.S.C. S 1988 (as amended in 1976).

Prior to Smith v. Robinson, the courts had routinely awarded

fees to attorneys who successfully represented handicapped

children and their families.

The Supreme Court, however, totally

removed the financial incentive which forms the predicate for

private legal representation.

2.

Pee Awards Provide a Necessary Financial Carrot to Attract
Private Practioners to provide Legal Representation to Civil
Rights Plaintiffs in General
In authorizing fee awards for counsel who are successful in

enforcing civil and constitutional rights, Congress has repeated

ly recognized that the financial carrot of fee awards is abso

lutely necessary to attract private lawyers to represent civil rights plaintiffs. This is because civil rights plaintiffs

ordinarily cannot afford to pay a lawyer, much less to pay legal

expenses and court costs; and because civil rights cases ordina

rily involve primarily if not only equitable relief, thereby

making contingency fee agreements unavailable.

Coupled with

these realities is the fact that private lawyers who must support themselves and their families are generally unwilling to provide

legal representation unless there is a high probably of payment

through legal fees.

Although each of the foregoing facts is self-evident, they

also are a matter of record through the legislative history

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Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. S 1988.

Because of the importance of the congressional findings accompa

nying the 1976 Fees Act, it is instructive to quote from at least several of the findings set forth in the accompanying Senate

Report, S. Rep. No. 94-1011, 94th Cong., 20 Sess. (1976) (the

"Senate Report"), and set forth in the accompanying House Report,

H.R. Rep. No. 94-1558, 94th Cong., 20 Sess. (1976) (the "House

Report").

First, there is no doubt about civil rights plaintiffs'

general inability to pay lawyers.

"In many cases arising under

our civil rights laws, the citizen who must sue to enforce the

law has little or no money with which to hire a lawyer."

Senate

Report at 2.

As a result:

"Because a vast majority of the

victims of civil rights violations cannot afford legal counsel,

they are unable to present their cases to the courts."

House

Report at 1.

In other words, "fee awards (are) an essential

remedy if private citizens are to have a meaningful opportunity

to vindicate the important Congressional policies which these

(civil rights) laws contain."

Senate Report at 2.

Second, there similarly is no doubt that in most civil

rights cases "only injunctive relief is sought" and that fee

awards thus are necessary "to promote the enforcement of the

Federal civil rights acts, as Congress intended."

House Report

at 9.

Stated otherwise:

"'If successful plaintiffs were

routinely forced to bear their own attorneys' fees, few aggrieved

parties would be in a position to advance the public interest by

invoking the injunctive powers of the federal courts.'"

Senate

Report at 3 (citation omitted); see also House Report at 6.

Accordingly, "fees are an integral part of the remedy necessary

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