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OF 1985

THURSDAY, MAY 16, 1985


Washington, DC. The subcommittee met, pursuant to call, at 9:45 a.m., in room 430 of the Dirksen Senate Office Building, Senator Lowell P. Weicker, Jr. (chairman of the subcommittee) presiding.

Present: Senators Weicker, Stafford, Nickles, Thurmond, Kerry, and Simon.

OPENING STATEMENT OF SENATOR WEICKER Senator WEICKER. This hearing of the Senate Subcommittee on the Handicapped of the Labor and Human Resources Committee will come to order.

The hearing has been convened to hear testimony concerning the Handicapped Children's Protection Act of 1985, which is a direct response to the Smith v. Robinson Supreme Court decision handed down on July 5, 1984. The decision has jeopardized the protection and enforcement of the educational rights of handicapped children. The Court ruled that the Education of the Handicapped Act, Public Law 94-142, does not allow the award of attorneys' fees to parents, who, after exhausting all available administrative procedures, prevail in a civil court action to protect their child's right to a free and appropriate education.

In their dissenting opinion to the Smith v. Robinson decision, Justices Brennan, Marshall, and Stevens prophetically observed that, "Congress will now have to take time to revisit the matter and until it does, the handicapped children of our country whose difficulties are compounded by discrimination and by other deprivations of constitutional rights, will have to pay the costs."

Today we are accepting that invitation to revisit the matter. It is clear to me that Justices Brennan, Marshall, and Stevens were correct; handicapped children are, indeed, paying the cost of the Court's misinterpretation of congressional intent. Unfortunately, they and their parents will continue to pay the cost until the Handicapped Childrens' Protection Act becomes law.

In addition to being an incorrect interpretation of congressional intent, Smith v. Robinson is already having serious negative consequences for handicapped children. Enforcement of Public Law 94142 depends largely on the individual initiative of parents who be


lieve that their rights have been denied. Without any hope of recovering attorney's fees, even when they are absolutely right, most parents can no longer afford to pursue their rights in Federal Court.

The bill that we are considering today is intended to be a simple restoration and clarification of congressional intent in enacting Public Law 94-142. In accomplishing that task, S. 415 addresses three straightforward issues.

First, Federal judges will have the discretion to award to prevailing parents reasonable attorney's fees associated with bringing their case to court.

Second, nothing in Public Law 94-142 shall be construed to restrict or limit the rights, procedures, and remedies available to the parents of handicapped children under the Constitution, section 504, or other Federal statutes prohibiting discrimination.

Third, the provisions of the amendment will be retroactive to include any actions or proceedings brought prior to, or pending at, the time of the Smith v. Robinson decision.

Although simple in its language and intent, the provisions of S. 415 are essential in insuring that handicapped children receive what is guaranteed to them by law. Congress intended that the promises of Public Law 94-142 would be held out to all-not just the wealthy. The victory for the Nation's handicapped and their families embodied in Public Law 94-142 would be hollow indeed, if its enforcement remains tied to an ability to pay.

Before starting, I would like to express my appreciation to Janet Bailey, of SL Association Inc., who is providing the interpreting services for the deaf.

Now, we will hear from Senator Kerry, Senator Stafford, and Senator Simon.

Senator Kerry.
Senator KERRY. Thank you, Mr. Chairman.

I am delighted to join with you and my colleagues here today to participate in this important hearing on S. 415, the Handicapped Childrens' Protection Act. I want to commend Senator Weicker for introducing this important piece of legislation which is designed to enhance the laws governing all handicapped childrens' rights to free and appropriate public education.

It saddens me, and I am sure that my colleagues join me in the feeling, that we must be here today to redress this imbalance. Over the last year, as Senator Weicker has stated in his opening comments, the Supreme Court ruled in Smith v. Robinson that most cases concerning the free and appropriate education of handicapped children must be settled exclusively under Public Law 94142, the Education of Handicapped Act.

I think that is all of our belief that the Court's misinterpretation in this case, is discriminatory. Parents who prevail in court cases aimed at forcing school systems to live up to the law are currently not entitled to have those attorney's fees paid. In other words, families with moderate or low income are barred fundamentally from access to the courts and as a result, their right to due process and to a decent education for their children is limited.

As a freshman Senator to this subcommittee, I am obviously new to this process. I am new to the past intent of the Congress and the laws that it has passed, but it is my understanding, as well as my belief, that neither Senator Stafford nor the other authors of Public Law 94-142 intended to limit handicapped children and their parents from access to due process. Nor did they intend the right to litigation be made available only to those who can afford it. As a former prosecutor, I am painfully aware of the financial and emotional burden that is placed upon individuals who are forced to pursue lengthy legal avenues, and who are even deterred from doing so as a consequence of their inability to be able to secure counsel.

Additionally, I would like to point out that virtually all of the existing civil rights laws in this country contain provisions for attorney's fees. I believe it is a fundamental guarantee of one's civil rights. I think the unnecessary hardship that is placed on families and the inequities resulting from Smith v. Robinson are in fact overwhelming and I look forward today to hearing the thoughts and the suggestions of our witnesses as they offer us their view of the importance of this legislation. Finally, I commend again, and recognize publicly, the important work that I think both Senator Stafford and Senator Weicker have offered on this subject, and thank them for their concern.

Thank you, very much, Mr. Chairman. Senator WEICKER. Senator Kerry, thank you very much. Senator Stafford. Senator STAFFORD. Thank you, Mr. Chairman. The Education of All Handicapped Children Act, Public Law 94142, was enacted by the Congress in 1975, because we believed that disabled children were being excluded from public schools. This legislation mandated a free and appropriate education of all handicapped children and provided full due process protections under the law. In July of 1984, the Supreme Court issued a ruling in Smith v. Robinson, which has already been discussed by the chairman and by Senator Kerry and I will not repeat that portion of my statement, but I will say that when we originally drafted 94-142, we included prescriptive language concerning the administrative due process procedures that each State was to establish.

The purpose of these administrative hearings was to provide a vehicle to resolve disputes between parents and school districts outside the judicial system. In the vast majority of cases, this system has worked well. Very few cases have had to be resolved by the courts; fewer than one-hundredth of 1 percent. In virtually every other civil rights law, costs incurred by prevailing parties in court can be recovered if the judge chooses to make such a ruling, as Senator Kerry has pointed out.

Critics of Š. 415 fear increased litigation as a consequence of making fees available to parents who are successful at the court level. It is my belief that the knowledge that fees can be awarded will encourage local and State education agencies to work out compromises with parents before court actions become necessary.

A law that mandates a free and appropriate education to handicapped children, that at the same time denies the awarding of legal fees incurred to uphold that mandate is a hollow promise at best and it hurts the families most, that can least afford it.

Parents must have every opportunity to participate with local school personnel to develop programs for their handicapped children if Public Law 94-142 is to work effectively. That includes having the prospect of financial reimbursement for legal fees if the services of an attorney are necessary to this process.

I hope that the Senate will act swiftly to amend the Education for All Handicapped Children Act, clarifying the congressional intent for the courts. And I, like Senator Kerry and others, salute our chairman, Senator Weicker, for his leadership on this important legislation.

And I also look forward to hearing the witnesses this morning.
Thank you, Mr. Chairman.
Senator WEICKER. Thank you, Senator Stafford.

We would not even be here, I might add, were it not for your having put together Public Law 94-142. So that is where the compliments belong.

Senator Simon.
Senator SIMON. Thank you, Mr. Chairman.

I want to join my colleagues in appreciation of your leadership on this, Senator Weicker. I want to put my full statement in the record, and I also join in appreciation for Senator Stafford's original leadership on Public 94-142. I was, as a freshman Member of the House, a cosponsor of this legislation. While there are a lot of things that I have done through the years that have received more publicity, I have to say that there is little that I have done for which I have received as much satisfaction as the creation of Public Law 94-142.

I think that one of the things that was clear in the minds of all of us when we created Public Law 94-142 was that the economic status of the parents should have nothing to do with whether or not a child received an opportunity for an appropriate public education. I think the Smith v. Robinson decision by the U.S. Supreme Court, brings that into question for a great many people. You are talking about parents who already have serious financial problems simply because their children are handicapped. And to compound this by saying that they are not eligible for attorney's fees simply compounds all the problems.

I would join in the point made by Senator Stafford that the decision is, in fact, going to cause more litigation. It is going to make some school boards reluctant to sit down and negotiate and work things out. I think the law before Smith v. Robinson —or the law as we intended it—was sound, and I hope we move back there quickly and get this bill out of the subcommittee and out of the full committee and through this Congress to the President very quick


Thank you, Mr. Chairman.
[The prepared statement of Senator Simon follows:

PREPARED STATEMENT OF SENATOR SIMON As one who cosponsored the original House version of the bill that became Public Law 94-142, I think that all of us who were involved in that process would have been surprised if we had known that we would be here today.

Nothing could have been clearer to us than the fact that we did not want a parent's economic status to be a factor in whether or not their child would be assured

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