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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
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
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
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
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).
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.
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),
Moreover, in many instances a hearing is
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
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.
The CCDD Education Task Force seeks support for two amendments to s.
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
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
Weicker's leadership in introducing s. 415, the Handicapped Children's
Protection Act of 1985 to respond to the adverse Supreme Court decision