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there, Jose P. v. the Board of Education and the Laura case, and in both public-interest lawyers were involved and in both they gained settlements affecting the lives of tens of thousands of children in New York City.
Since the Smith v. Robinson decision, these public-interest lawyers are not able to recover their legal fees, and they have had to sharply reduce the number of cases they can do and particularly individual cases. They have to try and preserve themselves for class action kinds of situations. And as the members of this committee know, that really flies against the very soul of this act. This act is designed to focus on individual needs, on individual situations, on individual education plans, on individual participation of parents, and on the individual reliefs which are possible, when situations are appealed through the due process procedure. If the due process system cannot allow parents to pursue these protections, the heart of the law is erased.
And I did just want to point out, as both of you distinguished Senators know, the resources available to public interest law firms are limited as well. And as a person who is not an attorney and bears no interest in private attorneys' fees and so forth, I think that it is difficult to see a situation, as I see directly in New York, where the few resources that are available are now having to cut back their assistance to individual parents.
We need to do everything possible to encourage a greater proportion of parents to take an active part in the education of their children, to take advantage of the opportunity to speak on behalf of their child, if they feel a situation is justified. Parents feel overwhelmed by the prospect of arguing a child's case before the school officals, to say nothing about school board attorneys. I do not know how many parents have told me, it is not an easy matter to face the principal, the school psychologist, the teachers, all the experts and to try to say that you think that you know something differently than they do. If they face extreme expenses, facing appeal decisions through the administrative and judicial system, they are clearly going to have to waive the protections that the Congress intended.
I would like to say, in closing, that as a person who has worked for 32 years now, I am extremely grateful for this committee and for the leadership of Chairman Weicker, for the kind of activities that the committee has been involved in, since the advent of his chairmanship. Since its creation, this committee has played a critical role in helping children and adults with disabilities. I remember discussing the need for it with Senator Williams before it was organized, under the earlier leadership of Senator Randolph and Senator Stafford and Senator Williams and the other members of the committee. Major gains were made for people with disabilities, but the battles of recent years particularly, have required great courage and insightful leadership and I know I express the feelings of parents and educators when I express our appreciation to you, Mr. Chairman, and for the work that you and your colleagues have done.
Thank you for the opportunity to testify. I hope the full Senate and your colleagues in the House will approve your efforts, perhaps recognizing that today is your birthday, might see this as a delayed birthday present for parents and children as well as for you, to reestablish the protections under 504 and other similar acts that were available during the first years of implementation of Public Law 94-142 and which have proven to be most necessary and useful.
Senator WEICKER. I want to thank you very much and we will get back to questions.
Let us hear then from Richard Larson, an attorney for the American Civil Liberties Union.
Mr. LARSON. Thank you, sir.
Senator THURMOND. I wonder if you could permit me about 2 minutes since I have another meeting?
Senator WEICKER. Of course, go right ahead.
Senator THURMOND. I regret that scheduling conflicts prevented my earlier attendance at this hearing, but nevertheless I am glad to be here and look forward to reviewing the testimony which has been presented today in order to make an informed decision on the merits of this bill.
Mr. Chairman, I believe that such an informed decision can only be attained by having an opportunity to hear diverse views on legislation as important as the bill that we consider today. Such a decision would include consideration of the impact this measure may have on the Federal judicial system, public school administrators, members of public school boards, and other interested citizens.
In my statement before this subcommittee on April 1, 1985, on the issue of advocacy for mentally ill persons, I said that it would only be reasonable and fair that State and Federal agencies have an opportunity to respond to the testimony presented, if they desired to do so. I am sure that no one can object to hearing both sides of a matter. Today I repeat those concerns and enlarge them to include the need for the committee to hear from spokespersons for affected local school authorities. For the benefit of those Senators who have not made a decision on the merits of this bill, I think this is necessary. Personally, I would like to learn more about this bill.
I respectfully request that those who may be affected by this legislation, but whose views may differ from those of the fine panel before us, be allowed the fundamental right to be heard. Having emphasized the need for completeness and fairness, Mr. Chairman, I do want to welcome all of the witnesses who have testified today and I shall be interested in carefully studying what they have to say.
Senator WEICKER. I thank the distinguished Senator from South Carolina for his comments. The record will remain open for at least a week to 10 days for those who care to go ahead and submit additional testimony.
I received the letter of my good friend, Senator Thurmond, relative to a request made by the National School Board Association. I would like the record to show right now that this legislation was introduced originally in July 1984. These hearings were put together and I approved the final witness list on April 29, 1985. We had no request from the National School Board Association until May 2. At that time we were in the middle of other hearings, and I gave approval 2 days ago to their testifying in person and I have indicated that they could certainly submit any statements that they care to for the record, and statements will be considered. I agree that we want to have all points of view. I think that it has to be pointed out that the request to testify was a tardy one indeed. The invitation to testify, and it was given 48 hours ago, was declined. And so, for whatever reasons—I am not going to speculate—we would be glad to have their testimony submitted for the record, and the record will remain open to receive that.
Senator THURMOND. Mr. Chairman, I might say that the school boards felt that 2 days' notice was not enough. The National School Board
Senator WEICKER. They had a year's notice.
Senator THURMOND [continuing]. Would like to submit a statement for the record.
Senator WEICKER. They had a year's notice.
Senator THURMOND. I think that it would be proper if we could invite both sides to come and appear. It seems that the impression is that only those who favor this legislation have been invited to come and appear here and have television advantage. The other side should be allowed to be heard, too.
As I said, I want to study this bill. I have not made up my mind on it, but I do think that on any piece of legislation, both sides should be heard. This is the point that I am trying to make.
Senator WEICKER. The point is well taken and the record will remain open for the submission by the National School Board Association or any other group or individual that cares to do so.
Mr. LARSON. Senator Weicker, I would like to open by thanking you and Senator Kerry and the entire subcommittee for the leadership that you have shown in trying to eliminate discrimination against the handicapped.
I would also, Senator Weicker, like to thank you for introducing legislation that you did last July and reintroducing again, the legislation as S. 415 this year. And, along with everybody else in the room, I am sure, I would like to wish you a happy birthday, Senator Weicker.
I believe that I am here in my capacity as the counsel for Thomas and Ursla Smith and their son, Tommy, in the Supreme Court last year. I have the unfortunate distinction of being the losing attorney in that case. It was a case that we certainly did not expect to lose at all. I have had a number of arguments in the Supreme Court. I considered Smith v. Robinson to be the easiest case that I had ever had up there and it was my first loss. I was very surprised.
S. 415 is necessary to overturn Smith v. Robinson. In my prepared statement, I address two separate things. One, why S. 415 is necessary to overturn Smith v. Robinson and the second subject is simply a matter of equity, that S. 415 is necessary to provide handicapped children with the same rights that are already provided under our civil rights laws to lots of protected groups; to older Americans, to racial minorities, to women, and to many others.
On the first point, the necessity of overturning Smith v. Robinson, let us turn to Smith itself. As you stated at the outset of these hearings, Senator Weicker, Smith v. Robinson not only denied attorneys' fees in the context of handicapped education, but it deprived handicapped children of preexisting rights and remedies. It did so based upon a finding that Congress perversely in 1975 had itself denied rights and remedies to handicapped children when it enacted the Public Law 94-142. That is simply wrong.
But the result of the Smith decision is that handicapped children today are much less well off than they were in 1975 when the monumental legislation was passed by Congress. S. 415 rectifies the mistake that the court made in Smith v. Robinson. It does so in three steps. It authorizes attorneys' fees, it restores to handicapped children their preexisting rights and remedies, and it makes the fee authorization retroactive to the date of Smith. It is a commendable piece of legislation to overrule Smith, an objective which I think is absolutely necessary,
The second point is that, indeed, S. 415 is nothing more than a piece of legislation giving to handicapped children, children least able to protect themselves in this society, the same rights and remedies that are available to older Americans, that are available to racial minorities, to women, to other protected groups.
Again, this is done through three steps. First, there is an authorization of attorneys' fees. This is hardly unique. Congress has enacted more than 150 Federal statutes authorizing attorneys' fees for the rich and sometimes for the poor as well. For the rich, for example, some of the earliest attorney fee statutes enacted by Congress were the Securities Act of 1933 and the Securities and Exchange Act of 1934. Indeed, when a corporation sues another corporation for an antitrust violation, the corporation is entitled to attorneys' fees under the Clayton Act, if the plaintiff is the prevailing party.
More recently, Congress, of course, in the last 20 years has enacted a large variety of fee statutes for those who have been discriminated against when they prevail. For example, Age Discrimination in Employment Act, the Equal Pay Act, the Fair Housing Act, title II and title VII of the Civil Rights Act of 1964 and literally dozens upon dozens of others.
In addition to authorizing fees in general in litigation, section 2 of S. 415 authorizes fees in administrative proceedings. That too is consistent with the other fee shifting statutes. The Supreme Court held in New York Gaslight Club v. Carey, that where there is a mandatory exhaustion requirement, indeed fees are available. Handicapped children should be treated no less well than others who have to go through administrative mandatory proceedings.
S. 415 restores to handicapped children all preexisting rights, remedies and procedures. And this provision, too, places handicapped children on a par with other persons who are protected by Congress against discrimination. Let me give you an example. Let us say that a school teacher is denied equal pay for equal work. That school teacher has a civil rights remedy under a comprehensive Federal statute, enacted in 1964 and amended in 1972, which is title VII of the Civil Rights Act of 1964 as amended.
But that teacher also has a remedy under the Equal Pay Act of 1963, which provides for double backpay and a means of liquidated damages, and there are different procedures. Additionally, that teacher can assert constitutional rights through section 1983. This is just one example of the fact that discriminated against persons in other areas of society have remedies that sometimes overlap and they are able to pursue their remedies. Handicapped children should not be treated any less well.
The third point is that as S. 415 makes the fee authorization retroactive and applicable to pending cases, that is standard in fees law. Once again handicapped children should not be treated less well.
This bill is simply, in my view, a matter of fairness, but it is more, of course, than a matter of fairness. It is rectifying the record of what this Congress, I think, quite clearly did back in 1975.
The ACLU strongly supports this legislation.
[The prepared statement of Mr. Larson follows:]