United States Supreme Court Confronts Two Special Education Controversies
On July 5, 1984, the United States Supreme Court announced two decisions applying the Education For All 1975 Handicapped Children Act [PL 94-142] Parents of children with mental disability will find one of these decisions more encouraging than the other. The first of these decisions was Irving Independence School District v. Tatro, 52 U.S. Law Week 5151. In that decision the court ruled that under the Education For All Handicapped Children Act an eight-year-old with spina bifida was entitled to clean intermittent catheterization (CIC) during school hours to allow the child to attend school and receive the benefits of public education. In the other decision, Smith v. Robinson, 52 U.S. Law Week 5179, a court held that school systems which violate the rights of a handicapped child under the Education For All Handicapped Children Act, the Rehabilitation Act of 1973, or the Civil Rights Act of 1871 are not liable for plaintiff's attorney fees. The first case firmly established the role of the federal courts in protecting the substantive rights of handicapped children under the Education For All Handicapped Children Act The second, however, made it more unlikely than ever that claims of a denial of those rights will be presented in federal courts.
Irving Independence School District v, Tatro
The Education For All Handicapped Children Act of 1975 assures all handicapped children of a free and appropriate education. Where it is necessary that the school district provide "related services" to enable the child to avail himself of a public education, the school district must provide those services at no cost to the child or his parents. Among the most controversial and expensive "related services" are those provided by physicians. The Education For All Handicapped Children Act specifically exempts the school system from providing related services that must be performed by a physician, except for those services that are necessary for diagnosis and evaluation.
In Tatro the school system claimed that catheterization of the handicapped child was just such a medical service. The parents of the child, with whom the District Court, the Court of Appeals, and eventually the Supreme Court agreed, maintained that catheterization was a service which could be as a practical matter provided by a nurse or even a trained lay person. Texas law appeared to permit a nurse to provide the service. Thus, if the service was necessary for free and appropriate education the school system was responsible for providing it.
Apart from settling the question of liability for catheterization of a handicapped pupil, the Tatro case clarified the Supreme Court's decision two years ago in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982). The school system, relying on language in that case had claimed that the federal court's role in Tatro was restricted to determining whether the school district had complied with the state plan for educating handicapped children and had followed the proceduralments of the Education For All Handicapped Children Act. The Texas school district had argued that federal courts are not entitled to second guess state officials on whether the state had provided a free and appropriate public education including "related services."
The Supreme Court rejected that view. Speaking through Chief Justice Burger, the court found that "[j]udicial review is equally appropriate in this case which presents the legal question of a school's substantive obligation under the 'related services' requirement of Section 1401(17). …