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rights laws, the citizen who must sue to enforce the law has

little or no money with which to hire a lawyer," which in turn

means that without the potential of fee awards citizens would not

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EAHCA is to become a mere hollow pronouncement which the finan

cially strapped parents and legal representatives of handicapped

children cannot enforce, Congress must guarantee access to legal

counsel as provided for in s 2 of s. 415 so as to vindicate the

important policies which the EAHCA contain.

Second, S 3 of s. 415 restores to handicapped children all

pre-existing rights, procedures and remedies. This provision too is designed to place handicapped children on a par with other

persons who are protected by congressional bars against discrimi

nation.

For example, Congress' enactment of Title VII of the

Civil Rights Act of 1964 certainly did not deprive women and minorities of pre-existing constitutional and statutory protections against discrimination, Johnson v. Railway Express Agency,

421 U.S. 454 (1974); similarly, Congress' enactment of the Fair

Housing Act of 1968 certainly did not deprive minorities of the pre-existing protection against discrimination in the Civil

Rights Act of 1866, Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968).

Nor should Congress allow it to be said that enactment

of the EAHCA deprived handicapped children of pre-existing cons

titutional and statutory protections.

Handicapped children, in

other words, are entitled at a minimum to the same pre-existing

protections as are other people who are victims of discrimina

tion.

Finally, S 4 of s. 415 makes the fee authorization in s 2

applicable to pending actions or proceedings. This provision is similar to the standard interpretation and application of congress' more-than-150 fee statutes. See, e.g., Hutto v. Finney, 437 U.S. '678 (1978) (Fees Act); Bradley v. School Board of

Richmond, 416 U.S. 696 (1974) (ESAA).

The parents and legal

representatives of handicapped children are entitled to no lesser

protection.

Conclusion

s. 415 not only is important legislation; it is necessary

legislation.

Without full rights, procedures and remedies being

available to parents and legal representatives of handicapped

children, their rights will become less than mere hollow pro

nouncements.

The ACLU fully supports the enactment of s. 415, and com

mends this Subcommittee and Chairman Weicker for moving quickly

toward that goal.

Senator WEICKER. Thank you very much.

I really appreciate the testimony of both of you in terms of your experience, Mr. Martin, with HHS, and yours, Mr. Larson in the Smith v. Robinson case.

I understand that representatives from the National School Boards are in the audience, and I hope that they understand that the offer was sincere, that they submit their testimony for the record.

It is my intention to bring this matter to markup within the next 2 weeks, and to report it out. We are not going to delay. If anybody wants delay, they can have it on their own heads.

It seems to me that there is an inequity here that deserves to be remedied. I think that I can answer, so that there is no holier-thanthou attitude in the room, which precipitates all of these battles, be it by school boards, or be it by States. I was appalled that my State of Connecticut filed an amicus brief in Youngberg v. Romeo, in effect saying that a State owed no more than custodial care. I thought that this was a point that we had gone by many decades back.

Here is the State of Connecticut, which I consider progressive, just as my good friend, Senator Kerry, considers the State of Massachusetts, filing an amicus brief supporting that limited obligation, insofar as the State is concerned. And I think that I can give the answer, whether it is the school boards that are going to fight these things down to the last inch, or whether it is the States filing those kinds of briefs, my own State of Connecticut included: money. Pure and simple: money. They do not want to spend the money, that clearly the law indicates now has to be spent.

S. 415 gives to these American citizens nothing more than anybody else, the same as everybody else. Yes, more funds might be involved in that. But that is not reason enough, in my book, for either the State government or the Federal Government or any local authority to go ahead and take these people and harass them.

If anybody is worried about there being a proliferation of lawsuits, let me assure you, and I am sure that the various attorneys that are involved in this, the parents that are here, believe me, if you have a child, a member of your family with a disability, you have got all that you can do without worrying about going into court. Nobody wants to go into court. I do not know one person who wants to go into court.

On the other hand, that the opportunity in America should be the same for their children as anybody else's child, I think that is a rather reasonable expectation on the part of any parent. And that is what is at issue here.

The conflict is one of the law versus those who want to save money at the expense of a population which they consider to be too weak to fight back.

Well, we have seen some very courageous people here today who have fought back. And I can assure you that Senator Kerry and myself and I suspect that a large majority of the U.S. Senate is perfectly prepared to hardball on this issue. If somebody wants to fight, well, they have got one. Senator Kerry.

Senator KERRY. I join 100 percent in your comments—and unfortunately I have to leave.

I just want to ask one question, if I may, to Mr. Martin.

In your testimony you cited the Office of Civil Rights and the lack of compliance and monitoring that is going on.

I wonder if you could just take a moment and document that since 1980?

Are you prepared to do that, or perhaps would you like to just submit that in writing? But I would like to have that for the record.

Mr. MARTIN. I will submit that in writing, but I can say that I have had a number of conversations with State officials thinking here about monitoring under Public Law 94-142. I was recently in California for a meeting of the Council for Exceptional Children and spoke with the State education agency people responsible for administering the special education. They have not had a site visit on Public Law 94-142 since 1980. That is an example of the policy I am talking about.

Senator KERRY. I appreciate your testimony and the testimony of the whole panel, and in particular the comments that were just made by the chairman.

I guess that we are beyond the point of being baffled by it, but no matter how onę serves or no matter how much one is in public life, the constancy with which we seem to see cheap decisions made by people in public life and the constancy with which we see a willingness to make such short-term, such shortsighted kinds of decisions which wind up ultimately costing society so much more, ultimately in expenditures-it just is a source of constant consternation.

And I certainly join with the chairman in saying that this kind of basic fundamental right is so essential to our system and to who we are and what we are and what we stand for, that I join with him. I am sure that I speak for my colleagues who are not here in saying that this is a fight that we are certainly willing to stand up for and to take to the floor and I think ultimately can win on, and will.

And I applaud the chairman.
[Additional material supplied for the record follows:

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American Academy of Child Psychiatry
Amer i can Occupational Therapy Association
American Physical Therapy Association
Association for Children and Adults with Learning Disabilities
Association for Retarded Citizens, US
Center for Law and Education
Center for Law and Social Policy
Conference of Educational Administrators Serving the Deaf
Convention of American Instructors of the Deaf
Disability Rights Education and Defense Fund
Epilepsy Foundation of America
National Association of Private Residential Facilities for the Mentally Retarded
National Association of Private Schools for Exceptional Children
National Association of Protection and Advocacy Systems
National Council on Rehabilitation Education
National Head Injury Foundation, Inc.
National Recreation and Park Association
National Rehabilitation Association
National Society for Children and Adults with Autism
Spina Bifida Association of America
The Association for Persons with severe Handicaps
United Cerebral Palsy Associations, Inc.

May 22, 1985

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