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Appeals Court Boosts Handicapped Schooling

May 26, 1989

BOSTON (AP) _ A federal appeals court upheld the right of a profoundly retarded boy to be educated at public expense, and a disability advocate said Thursday that the ruling lifts a threat to special education.

The ruling issued Wednesday by the 1st U.S. Circuit Court of Appeals here overturned a U.S. District Court ruling last July in New Hampshire which said the boy was not entitled to publicly financed educational services because he could not benefit from them.

The higher court ruled that the 1975 federal Education for All Handicapped Children Act means what the title suggests: ″A school district has a duty to provide an educational program to every handicapped child in the district, regardless of the severity of the handicap.″

″I feel it is a reaffirmation of what I thought was clear all along - that all handicapped students are entitled to an education,″ said attorney Ronald Lospennato, who represented the 14-year-old boy identified only as Timothy W. and the Disabilities Rights Center.

But attorney Gerald Zelin, who represented the Rochester, N.H., school district, warned that the ruling could expose cities and towns across the country to potentially unlimited costs for programs that will have minimal impact.

Zelin said the town might appeal the ruling to the U.S. Supreme Court.

″The statute defines handicapped children as those who need or require special education,″ Zelin said. ″The district argues that a child who can’t benefit cannot ‘need’ or ‘require’ it.″

Nationwide, Zelin said, as many as 10 percent of all school-age children qualify for special education, although most of them have relatively mild disabilities and can be accommodated in mainstream classrooms.

For children with extraordinary or multiple handicaps, however, the cost to local government can be high. Day programs can cost $5,000 to $10,000 or more per year, and residential placements can cost more than $50,000 a year.

Zelin said Congress never appropriated more than about $300 a year per pupil under the law, which covers young people from age 3 to age 21.

″If Tim were to remain in a day program at $10,000 to $20,000 a year, that’s not going to break Rochester’s budget. It is on the other hand, arguably, a waste of public resources. For $20,000 you could hire another whole teacher,″ Zelin said.

″It’s a real head-versus-heart case,″ Zelin said.

The boy’s attorney agreed that funding was an issue, but argued that the law raises questions beyond the school district’s budget.

″First of all, Timothy is clearly the type of kid where society has some obligation,″ Lospennato said. ″He is going to be, or could be, an extraordinary expense for anybody, one way or another. If it isn’t the school district, it’s going to be some other social service agency.″

″More than that, the failure to provide services will result in more expense to taxpayers,″ he said, arguing that if the town had paid for services beginning when Timothy was 3, he might not need such expensive services now.

The dispute began in 1978, when Timothy turned 3 and the town rebuffed his family’s request for an educational program. In 1984, the case went to U.S. District Court in New Hampshire.

In court hearings, the boy’s mother and therapists testified that Timothy could hear, see bright light and respond to music, touching and talking. But, a developmental pediatrician testified that Timothy ″did not have educational needs and could not benefit from an education.″

Rochester School Superintendent Raymond Yeagley said the appellate court’s ruling will force the school district to shift resources from students who could benefit from education to those who may not.

″School districts are getting to the point they are asked to do everything and spend more on education services than education,″ said Gwendolyn Gregory, deputy general counsel of the National School Boards Association in Washington, which filed a brief siding with the town.

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