Schooling for Handicapped Upheld : Education: Even those who cannot learn qualify for public instruction. The Supreme Court ruling affects a few thousand severely retarded children.

TIMES STAFF WRITER

The Supreme Court on Monday let stand a ruling that all handicapped children, even those who lack any learning ability, are entitled to education paid for by the public schools.

The justices without dissent denied an appeal from a New Hampshire school district that was ordered to provide education and "related services" for a profoundly retarded 13-year old, even though it was conceded that the child could not "benefit from education." The child, known only as Timothy W., suffered severe brain damage at birth and does not respond to stimulation.

Monday's action by the high court directly affects only the few thousand most severely retarded of the nation's 4.1 million children who are classified as mentally or physically handicapped. Since 1975, federal law has required that public schools provide "special education" for "all handicapped children."

But the National School Boards and the American Assn. of School Administrators, in appeals to the Supreme Court, contended that it does not make "common sense" to require the public schools to pay as much as $20,000 per year to provide education for children who are too retarded to benefit in any way.

The court's decision "seems to wipe out the distinction between educational and non-educational services so that we are responsible for everything, even if it is just manipulating a child's leg muscles," said Gwendolyn Gregory, an attorney for the school boards group.

However, advocates for retarded children said the decision merely upholds the understood policy in most school systems.

"When Congress passed the law, it said 'all' children, and it meant 'all.' The Supreme Court has just reaffirmed that," said Joseph Ballard, government relations director for the Council for Exceptional Children.

School officials in California say Monday's decision is in line with existing policy.

"We have had a zero-reject policy for a long time," said Joyce Eckrem, staff counsel for the state Department of Education. "Some school districts have contested that policy in hearings, but they've lost."

In the Los Angeles school district, children who are profoundly retarded are generally placed in special developmental centers, said Phil Callison, assistant superintendent for special education.

"We have some kids who are for all intents and purposes comatose. But we still take them and provide some physical therapy and occupational therapy," he said.

The 1975 handicapped schooling law has irked some education officials because Congress pledged to fund improved school programs for retarded and disabled children, but has since reneged on the promise. Last year, education for handicapped children cost the nation's schools $16 billion, but the federal government paid only 6% of the cost.

To some education officials, the case of Timothy W. illustrated the need to put limits on school spending. From birth, the child was given medical care and physical therapy at a publicly funded development center in Rochester, N.H. His mother demanded, however, that the school system also provide educational services for her son.

After a two-day trial last year, U.S. District Judge Martin Loughlin ruled that the federal law did not require a school system to provide education to a child who lacks the capacity to learn. "Congress would not legislate futility" by requiring teachers to teach children who cannot learn, he said.

The U.S. 1st Circuit Court of Appeals disagreed. In May, the Boston-based court ruled that federal law requires educational aid for "all" handicapped children without exception.

The school district, joined by the two national education groups, the National League of Cities and the National Conference of State Legislatures, appealed. But without dissent, the high court dismissed the case. (Rochester School District vs. Timothy W., 89-515.)

In other actions, the court:

--Let stand a Colorado court ruling requiring a telephone company to include in its customer mailings a notice of a lawsuit against the company. The Mountain State Telephone Co., joined by a series of other firms, said this decision violated its free speech rights.

The Colorado Supreme Court ruled in July that the company could not be required to mail out an "ideological or political" message, but it could be forced to transmit a legal notice. (Mountain States Telephone vs. District Court, 89-531.)

--Let stand a Kansas ordinance requiring owners of "pit bulls" to keep the dogs indoors or muzzled. Lawyers for several dog owners in Overland Park, Kan., contended that the law was unconstitutionally vague. It defined the dogs in question as Staffordshire Bull Terriers, American Staffordshire Bull Terriers, American Pit Bull Terriers and others who have "the appearance and characteristics" of those breeds. (Hearn vs. Overland Park, 89-412.)

--Dismissed a suit against the Senate Judiciary Committee for its unanimous confirmation of Justice Anthony M. Kennedy. The suit by a Los Angeles man contended that the senators knowingly failed to investigate charges against Kennedy, but two lower courts ruled that senators are immune from being sued for their official decisions. (Lee vs. Biden, 89-591.)

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