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Education for All Handicapped Children Act, 1975-1989; a judicial history.



In 1975, The U.S. Congress passed and President Ford signed into law Public Law 94-142, the Education for All Handicapped Children Act (EAHCA). Legal milestones established by the Federal courts shape the resolution of the ongoing legal challenges to make "a free appropriate education" available to all individuals between the ages of three and twenty-one. Despite the considerable specificity of P.L. 94-142 and its implementing regulations over the past 15 years, the courts have still been required to play a major role in determining the meaning of the Act's provisions.


The leading judicial opinion interpreting the Act was that of the U.S. Supreme Court in Board of Education v. Rowley.[1] Most child advocates were greatly disappointed with the Rowley decision. Unlike lower courts that had heard the case, the high Court rejected arguments that children with disabilities should be provided services sufficient to enable them to achieve their full potential. It held instead that a child with a disability was entitled to "personalized instruction with sufficient support services to permit them to benefit educationally from that instruction."[2]

It did not, however, establish a standard for how great that benefit must be. The Court said Congress' intent was "more to open the door of public education than to guarantee any particular level of education once inside."[3]

However, the Rowley opinion did affirm the right of children with disabilities: (1) to be educated by public schools

without charge; (2) to be provided with individualized,

beneficial, "meaningful" services,

designed through the individualized

educational plan (IEP) process; (3) to be "mainstreamed" where possible; (4) to receive an instructional program that

approximates the grade levels used in

the state's regular education program; (5) to be provided with related and

supportive services needed to derive

benefit from their special education; (6) to have parents or guardians actively

involved in the planning of their

education; (7) to challenge the adequacy of their

education programs in due process

hearings; and (8) to challenge in federal court both the

substance of their IEP and the

procedures afforded for its

development and review.

Lower federal courts, continuing an earlier line of decisions,[4] found support in Rowley for a right to an extended school year for those children with severe disabilities whose IEPs called for this. They held that state policies limiting education to 180 days precluded individualized consideration and instruction and failed to provide "the basic floor of opportunity" embodied in the Act.[5]

In Rowley, the Supreme Court recognized that, in drafting 94-142, "Congress sought to protect individual children by providing for parental involvement in...the formulation of the child's individual education program."[6] The Court observed that," parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act."[7]


On July 5, 1984, in Smith v. Robinson,[8] the Supreme Court ruled that successful plaintiffs in P.L. 94-142 suits could, in most cases, no longer be awarded attorneys' fees. The Act itself made no mention of such awards, and the Court found that the practice, common until then, of claiming fee awards under Section 504 of the Rehabilitation Act or under a Civil Rights Act provision, amounted to an improper circumvention of the EAHCA's comprehensive provisions. This decision could have dealt a severe blow, since most parents are financially unable to bear the expense of a court challenge when their child's educational rights are being violated. Congress, however, re-established the earlier balance of power between parents and school systems by passing the Handicapped Children's Protection Act of 1986, which restored courts' authority to award reasonable attorneys' fees to parents or guardians who succeed in EAHCA law suits or administrative hearings.[9]


Fiscal responsbility was also the issue in the third EAHCA case decided by the Supreme Court. In 1985, in Burlington v. the Department of Education of Massachusetts, the Court held that a court may order a school system to reimburse parents for private school tuition and other expenses they have incurred if the proposed public school program and placement that they rejected are ultimately found inappropriate for the child.[10] The Court found that the parents had not forfeited their right to reimbursement by transferring their child to a private school without waiting for a due process hearing before state special education administrators, noting that the time delays incident to the "ponderous" hearings often require parents to act unilaterally to protect their child's interests.[11]

In a June 1989 decision, Dellmuth v. Muth,[12] the Supreme Court detracted somewhat from Burlington, ruling (5-4) that the EAHCA does not eliminate a state government's Eleventh Amendment sovereign immunity from federal suit. Parents who incur the costs of private schooling or attorneys' fees in a Burlington-type situation cannot, therefore, sue the state in federal court for reimbursement of these expenses. Parents are, however, still free to sue the local school district for such costs. Also, even the justices in the Dellmuth majority acknowledge that the U.S. Congress may do away with states' immunity in P.L. 94-142 suits by enacting another statute that does so in unmistakably clear and explicit language. It remains to be seen whether Congress will choose to do so.


The more enduring of the Supreme Court's July 1984 decisions has been Irving Independent School District v. Tatro.[13] Amber Tatro was an eight-year-old child with spina bifida and a condition which prevents her from emptying her bladder voluntarily. Every three or four hours she must have a catheter inserted into her urethra to drain her bladder -- clean, intermittent catheterization (CIC), a procedure that she was not yet able to perform by herself. Her Texas public school system argued that CIC was a "medical service" and thus not their responsibility. The Supreme Court, however, ruled that it was a "related service" under 94-142 that must be provided by the school. This favorable precedent has been cited by thousands of families across the nation to obtain a wide variety of "related services" for their disabled children.

In 1986, however, a federal district court in Northern New York state declined to follow Tatro when it decided a case called Detsel v. Board of Education.[14]

Melissa Detsel was a seven-year-old child with severe physical disabilities. She requires constant respirator assistance, a continuous supply of forty percent oxygen, and constant vigilance by an individual trained to monitor her health and prepared to administer cardio-pulmonary resuscitation. While in school, Melissa's nurse must check her vital signs and administer medication through a tube to the child's intestines. Moreover, the nurse must perform a procedure known as a "P.D. and C.", injecting a saline solution into Melissa's lungs and then striking her about the lungs, suctioning out the mucus collected there. The school physician testified that these procedures would require the services of a licensed practical nurse or a registered nurse; even Melissa's own physician testified that the services of a school nurse would be inadequate.

The district court reviewed the Supreme Court's Tatro opinion and concluded that Melissa's case was "decidedly different." It found that the care Melissa requires is "costly," "complicated," "extensive," "beyond the competence of a school," and "requires the skill of trained health professionals."[15] In Tatro, the high Court had noted that "Amber's parents, baby-sitter, and teenage brother are all qualified to administer CIC, and Amber soon will be able to perform this procedure herself." It had emphasized that "not even the services of a nurse are required;...a layperson with minimal training is qualified to provide CIC."[16] The Detsel district court concluded that, even though the extensive services required by Melissa need not be performed by a physician, they so closely resemble therapeutic medical services (which are excluded from "related services" under 94-142) that they need not be provided by the school.

In June, 1987, the Second Circuit Court of Appeals affirmed the district court's Detsel decision.[17] Despite the urging of many advocates, and the fact that a federal court in Hawaii had, in 1983, decided that a public school must provide the somewhat less demanding "related services" required by a student with cystic fibrosis and wearing a tracheostomy tube,[18] the U.S. Supreme Court has refused to review Detsel, and it currently stands as the law of the Second Circuit (which encompasses New York, Connecticut and Vermont). It remains to be seen precisely where the line delimiting the requirement for school-provided "related services" will ultimately be drawn.


In 1988, the high Court handed down an important decision upholding children's special education rights on an issue where finances were not the dominant factor. In Honig v. Doe, the Court held that a school system may not unilaterally exclude children with disabilities from the classroom for dangerous or disruptive behavior growing out of their disability.[19] The "stay put" provision of the Act directs that, while a decision regarding the child's educational placement or other aspect of the IEP is being reviewed by administrative agencies or courts, unless the educational agency and the parents or guardian otherwise agree, the child shall remain in his or her then current educational placement.[20] The Court refused to read a "dangerousness" exception into this provision, finding that "Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude handicapped students, particularly emotionally handicapped students, from school."[21]

The Court noted a number of acceptable procedures schools could use in dealing with children who are endangering themselves or others, including the use of study carrels, time-outs, detention, or the restriction of privileges. "More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days. This authority...also provides a `cooling down' period during which officials can initiate IEP review and seek to persuade the child's parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts."[22]


Because Rowley held that the EAHCA requires that a free appropriate public education be designed to provide disabled children "some benefit," some schools have argued that they need not provide such education to students whom they find are incapable of benefitting from it. In May 1989, however, the U.S. Court of Appeals for the First Circuit, in the case of Timothy W., a child with profound mental retardation and other multiple disabilities, rejected this "benefit/eligibility" test.[23] The court ruled that "all handicapped children, regardless of the severity of their handicap, are entitled to a public education.... School districts cannot... unilaterally exclud[e] certain handicapped children from a public education on the ground that they are uneducable."

How much benefit must be conferred by the education is a question with which many lower courts have grappled. In 1988, the U.S. Court of Appeals for the Third Circuit, noting that the Supreme Court's Rowley opinion said that the education provided must be "meaningful," concluded that the EAHCA calls for more than a "trivial" educational benefit.[24] It therefore ordered that a child with severe mental and physical disabilities be provided the physical therapy that developmental experts believed to be an essential part of her education, in addition to the other services the school had offered.


One of the most promising developments regarding the extent of benefit required, however, has been the recognition by several courts that some states' special education laws set higher standards than P.L. 94-142 for the level of educational services to be provided. The Massachusetts act, for example, provides that such services must benefit the child "to the maximum extent feasible," and this has been interpreted by the state's highest court as requiring special education programs "to assure the maximum possible development of a child with special needs."[25]

In a very important 1985 ruling in the case of Massachusetts student, David D., the First Circuit Court of Appeals held that a state's higher standard for special education services is incorporated into P.L. 94-142, and thus may be enforced by federal courts.[26] In 1986, by declining to review David D., the U.S. Supreme Court left open the opportunity for children's advocates in many states to have federal courts compel the provision of substantially greater services where similar higher standards exist in state law.

The Courts continue to reaffirm P.L. 94-142 and have broadly defined the education required to serve children with disabilities. However, parents and professionals must remain vigilant as the standard for what constitutes adequate special education services is beginning to vary between jurisdictions, depending upon the individual states' statutes; and courts are still working out the limits of what "related services" must be provided by the school.

PHOTO : The Tatro family in 1984.

NOTES [1]458 U.S. 176 (1982). [2]Id., at 203. [3]Id., at 192. [4]See Battle v. Pennsylvania, 629 F.2d 269 (3rd. Cir. 1980), cert. denied sub nom. Scanlon v. Battle, 452 U.S. 968 (1981). [5]Yaris v. Special School District, 558 F.Supp. 545 (E.D. Mo. 1983). [6]458 U.S., at 208. [7]Id., at 209. [8]468 U.S. 992 (1984). [9]P.L. 99-372 (1986). [10]471 U.S. 224 (1985). [11]Id., at 230. [12]109 S.Ct. 2397 (1989). [13]468 U.S. 883 (1984). [14]637 F.Supp. 1022 (N.D.N.Y. 1986). [15]Id., at 1026-27. [16]468 U.S., at 894. [17]820 F.2d. 587 (1987). [18]State of Hawaii Dept. of Education v. Katherine D., 727 F.2d 809 (9th Cir. 1983), cert. denied, 105 S. Ct. 2360 (1985). [19]108 S.Ct. 592 (1988). [20]20 U.S.C. sec. 1415(e)(3). [21]108 S.Ct., at 604. [22]Id., at 605 (footnote omitted). [23]Timothy W. v. Rochester, N.H. School District, 875 F.2d 954 (1st Cir., 1989). [24]Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171 (3rd Cir., 1988). [25]Mass. Gen. Laws ch. 71B, sec. 3, as interpreted in Stock v. Mass. Hospital School, 392 Mass. 205 (1984), at 211. [26]Mass. Dept. of Education v. David D., 775 F.2d 411 (1st Cir. 1985), cert. denied, 106 S.Ct. 1790 (1986).

Harry A. Beyer received his J.D. from Harvard Law School and is a member of the Massachusetts Supreme Judicial Court Bar Association, the United States District Court and the United States Court of Appeals. In addition, he is a member of the advisory committee for the office of Human Rights and the Board of Trustees of the Information Center for Individuals with Disabilities. He teaches at the Boston University School of Law, and is the author and editor of many publications concerning legal issues of importance to people with disabilities.
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Author:Beyer, Henry A.
Publication:The Exceptional Parent
Date:Sep 1, 1989
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