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 E. Richard Larson American Civil Liberties Union on S. 415, the Handicapped Children's Protection Act before the Subcommittee on the Handicapped May 31, 1985 Subsequent to the hearing held on May 16, 1985 on the Handicapped 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 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 necessary to attract private practitioners to represent handicapped children in special education actions and proceedings; and therefore (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 There is, at the outset, no question about what the Supreme Court did in Smith v. Robinson. It held, with regard to handicapped 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 § 504 of the Rehabilitation Act, and that there accordingly is no availability of fees under § 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. Fee 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 repeatedly recognized that the financial carrot of fee awards is absolutely 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 ordinarily 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 accompanying most civil rights fee statutes, and particularly through the legislative history accompanying the omnibus Civil 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., 2d Sess. (1976) [the "Senate Report"], and set forth in the accompanying House Report, H.R. Rep. No. 94-1558, 94th Cong., 2d 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 |