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formal due process hearing procedure and court action are taken as a last

resort after all efforts at informal resolution have failed and the

parents are convinced that the disputed area is of critical importance to

their child.

Even then, in many instances parents just do not have the

time or emotional reserves to initiate the process.

It is a fundamental issue of fairness that parents who must pursue a

formal hearing or court action in order to secure a free appropriate

public education for their child be awarded attorney's fees if they

utilize the services of an attorney and prevail. Many parents would not

even consider pursuing the due process hearing procedure if they had to

represent themselves.

It is a very intimidating process that takes its

psychological toll on the child and family.

It should certainly be easy

to understand how difficult it would be for a parent to cross-examine

school officials and teachers, even if a parent had the requisite

knowledge to do so.

Moreover, school districts often employ attorneys to

consult, prepare and/or present the district's position in these

hearings.

It is ironic that the National School Board Association's

Council of School Attorneys, with over 1,900 members, testified on H.R.

1523 that fees should be denied at the due process hearing level in order

to keep the hearing "informal and cooperative."

It is also ironic that

parents are in effect paying for their school district's attorney through

their tax dollars, while the school boards argue against their right to

be represented as well.*

Another fallacy being promoted by some in opposition to the bill is

that attorneys will be clamoring at the doors of parents of disabled

children with disabilities, encouraging them to pursue cases that they

*School boards which do not use lawyers to present cases at due process hearings use personnel specifically trained to conduct hearings.

would not otherwise pursue. Again, parents will not go through the pain

and anguish of a hearing or court action just so that their attorney can

be paid his/her regular fees.

No parent looks forward to exposing their

child's personal and medical information or being cross-examined about

their position regarding their child's education.

The availability of

attorney's fees simply assures fair access to hearings and court for

those parents who are in the painful position of having to pursue such

avenues in order to attain appropriate educational services.

The CCDD Education Task Force fully supports the "action or

proceeding' language in s. 415 to cover reimbursement for costs resulting

from administrative and court hearings.

This language is consistent with

current case law.

In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(1980), the Supreme court held that similiar language in Title VII of the

1964 Civil Rights Act author ized courts to award fees to the prevailing

party in the administrative hearing level or in court because the Act

required exhaustion of the local or administrative procedure before

proceeding to court. *

The reasoning of the court is equally apt under

the EHA:

It would be anomalous to award fees to the complainant who is

unsuccessful or only partially successful in obtaining state or local

remedies, but to deny an award to the complainant who is successful

in fulfilling Congress' plan that federal policies be vindicated at

the state or local level.

As the NSBA acknowledged in their testimony before the House on H.R.

1523, 'courts that have awarded attorney's fees for the costs incurred at

*The recent case of Webb v. County Board of Education of Dyer County------U.S.------(4/17/85) has no impact on the Gaslight decision. In Webb the court denied fees at the administrative level because they were not mandated under the statute.

administrative hearings held under the Act have reasoned that since the

EHA, like Title VII, requires parents to first exhaust their

administrative remedies before seeking judicial relief, then prevailing

parties under the EHA are also entitled to recover legal fees for the

costs of proceedings to which they must submit under the federal statute

before going to Court" (p. 5).

Several courts have followed this

reasoning in EHA cases.**

In conclusion, s. 415 assures fair and equal access to the formal

procedures established by Congress in the EHA.

Moreover, the award of

fees only becomes applicable when the hearing and/or court action was

necessary to secure the basic right to a free appropriate public

education guaranteed by Congress in 1975.

**The following decisions have awarded fees for the administrative due process hearing under the EHA: Gary B. V. Cronin, 542 F. Supp 102 (N.D. ill. 1982); Patsel v. D.C. Board of Education, 530 F. Supp. 660 (D.D.C. 1982); Davis V. D.C. Board of Education, 530 F. Supp. 1215 (D.D.C. 1982); Capello v. D.C. Board of Education, 3 EHLR 553: 6095 (D.D.C. 1982); Hilden V. Evans, 3 EHLR 552:299, 301 (D. Oregon 1980); Roe v. Riles, C.A. No. C-81-16 02 MHP (Slip Opinion) (N.D. Cal. May 25, 1982); Department of Education v. Valenzuela, 524 F. Supp. 261 (D. Hawaii 1981); Department of Education v. Katherine D., 531 F. Supp. 517 (D. Hawaii 1982); see also, Espino v. Bestro, 708 F. 2d 1002, 1010 (5th Cir. 1983).

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THE NEED TO RESTORE THE RELATIONSHIP BETWEEN THE EHA AND SECTION 504,

SECTION 1983 AND THE U.S. CONSTITUTION

Prior to the Supreme Court's decision in Smith v. Robinson, parents

had available alternative means of secur ing their child's right to a free

appropriate public education.

Contrary to the decision in Smith,

Congress was aware of these other alternatives and intended to add to

them when it enacted the EHA in 1975.

It is important that legislation

to overturn Smith reaffirm that Congress did not intend to take away

rights, but to enhance rights when it enacted the EHA.

of particular concern to parents is the continued vitality of the

administrative enforcement procedures under Section 504.

At the outset

it is important to point out that Smith v. Robinson in no way affected

the authority and responsibility of the Office of Civil Rights of the

Department of Education to process Section 504 complaints. Smith itself

only involved court actions.

OCR's responsibility was established by

Congress and the procedures were endorsed and codified in 1978.*

However, in the months following Smith there was uncertainty as to the

Administrkion's position regarding the continued jurisdiction of OCR on

elementary and secondary education complaints.

We are pleased that

Secretary Bennett has recently reaffirmed the role of OCR.

The ability to file Section 504 complaints with the Office of Civil

Rights is the most critical alternative remedy for parents.

Unlike the

formal due process hearing, which as we described above is emotionally

draining and requires a consider able amount of available time, the OCR

complaint system allows the parent to file a letter outlining their

concerns and requires investigation, resolution or enforcement by the

*See, consolidated Rail corp v. Darron, 104 S. Ct. 1248 (1984),

regulatory agency.

Moreover, in many instances a hearing is

unnecessary.

If a school district refuses to comply with a provision of

the law, a parent should not be forced to go through a hearing to achieve

compliance.

The federal government has the responsibility of assuring

that all recipients of federal funds comply with the law.

The CCDD Education Task Force fully supports the purpose and intent

of s. 415 to clarify congressional intent that P.L. 94-142 and Section

504 provide alternative means of protection for children with handicaps.

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The CCDD Education Task Force seeks support for two amendments to s.

415.

The first amendment would require the appropriate educational

agency to make available for public review the decisions which result

from impartial administrative hearing at the local and state level with

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public access provision will enhance the ability of all concerned parties

to monitor the provision of a free appropriate public education for all

children with handicaps.

The second amendment would bar educational agencies from reimbursing

prevailing parents with EHA funds.

It is our belief that these federal

dollars should be limited exclusively to the provision of special

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Weicker's leadership in introducing s. 415, the Handicapped Children's

Protection Act of 1985 to respond to the adverse Supreme Court decision

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