Equal protection for the handicapped
Bateman's legal corner: What was Barbara Bateman saying about parents recovering damages in the original SET of 1985?
Editor’s note: In the original print version of Special Education Today, Barbara Bateman Ph.D, J. D., contributed columns offering legal observations about special education. Here SET is reprinting the contents of one of those columns; it originally appeared in March 1985 on page 14 of volume 2(2). Readers will see that this column appeared when the US laws were know as “Education of the Handicapped Act.” So, yes, the original column is dated, but the idea here is to examine how those older ideas are represented today. I am pleased that noted contemporary legal scholars, Mitchell Yell and David Bateman reviewed this column and offer their contemporary analysis of the ideas and the current status of the topic. Readers will find Barb’s column first and then David’s and Mitch’s analysis immediate after it.—JohnL
When deciding any federal Equal Protection claim the court first examines the plaintiff's entitlement to judicial protection and the interest being abridged. Based on those, the court selects one of three different standards by which to judge whether the discriminatory treatment is allowable. Under the "rational basis" test, the government has only to show some rational connection between the difterent treatment and a legitimate purpose. The "intermediate scrutiny" standard prohibits discrimination unless there is a substantial relationship to important government objectives. The "strict scrutiny" test requires the discriminatory classification be precisely drawn to further a compelling government reason.
In Cleburne Living Center v. City of Cleburne, now [1985] on appeal to the U.S. Supreme Court, the Fifth Circuit held that the mentally retarded deserve the "intermediate" test because mental retardation is immutable and has been the target of prejudice and oppression. Additionally, the interest abridged in Cleburne was integrated housing which, like education, is not itself a constitutionally protected right. If the Supreme Court upholds the use of "intermediate scrutiny" for the handicapped it will make it far easier to win Equal Protection claims than it has been under the "rational basis" test.
Even such a positive outcome in Cleburne will not, however, affect cases on education of the handicapped, as seen in the following hypothetical situation. After years of frustration with the school district's (D) programs, the parents of a handicapped child (HC) learn of a promising private placement. At the next IEP meeting, D offers more of the same. The parents request a hearing and leave HC in D's program until the hearing officer finds, a full year later, that D's program is not appropriate and the private placement is appropriate. After HC is in the private program the D's appeals consume four years before the final ruling in favor of the parents. At this point the parents are out $120,000 in schooling costs and half that in attorney's fees. And how do they fare in recovering those expenses incurred by the district's failure to provide a free appropriate program and by its numerous appeals?
They claim they are entitled to reimbursement because the D's failure violated (1) the Equal Protection clause, (2) Section 504 of the Rehabilitation Act, (3) State education laws, and (4) All Handicapped Children Act (EHA; now IDEA). They claim attorney's fees under the Equal Protection claim (Section 1988 of the Civil Rights Act) and under the Rehabilitation Act (Section 505).
In Smith v. Robinson the Supreme Court has now barred the parent's Equal Protection claim and their Section 1988 fees claim, saying that EHA is the exclusive remedy.
The Section 504 and 505 claims are also barred by the exclusivity of EHA unless the parents prove D's bad faith or gross misjudgement. The parents State law claims will next be thrown out under the Supreme Court's ruling in Pennhurst v. Halderman that federal courts may not award attorney's fees under EHA because it does not so provide. Worse yet, their claim for reimbursement of their costs of HC's education will almost certainly be denied because they violated the "stayput" provision of EHA by placing HC before the D completed its years of unsuccessful appeals. Brynes v. Riles, however, did allow parents to recover private tuition because California law requires mainte nance of the status quo place ment only through the hearing, not through all the judicial appeals. Such a provision in all states would prevent the hollow EHA "victories" now being given handicapped children.
Updates on these issues
Barbara Bateman’s 1985 column captured a critical moment in the development of special education and disability law. At the time, the Education of the Handicapped Act (which we know as “IDEA”) was still young, the Supreme Court had not yet clarified key issues about reimbursement and attorney fees, and Cleburne and Smith v. Robinson were unsettled cases. Looking back from 2025, we can see both how much has changed and how enduring many of these questions remain.
Equal protection and Cleburne
The Supreme Court ultimately decided City of Cleburne v. Cleburne Living Center (1985) using the rational basis standard, not intermediate scrutiny. However, the Court applied that test with unusual rigor, striking down the city’s denial of a group home permit. While Cleburne did not elevate individuals with intellectual disabilities to a quasi-suspect class, it signaled courts would not accept arbitrary or irrational discrimination. This remains the controlling precedent today.
Smith v. Robinson and congressional response
As B. Bateman noted, Smith v. Robinson (1984) held that the EHA was the exclusive remedy for claims involving special education; it did not foreclose Equal Protection and Section 504 as parallel avenues nor did it bar recovery of attorney’s fees. Congress swiftly responded with the Handicapped Children’s Protection Act of 1986, which explicitly authorized parents to recover attorney’s fees under IDEA and preserved the ability to pursue Section 504 and constitutional claims alongside IDEA. That legislative override fundamentally reshaped the remedies available to families, and it remains one of the most significant statutory corrections in the history of IDEA.
Stay-put and reimbursement
Barb Bateman’s hypothetical illustrates the harshness of the old “stay-put” rule. In 1985, parents who moved a child to private school without waiting for appeals risked losing all reimbursement. Just a few years later, in School Committee of Burlington v. Department of Education (1985) and Florence County School District Four v. Carter (1993), the Supreme Court clarified parents may be reimbursed for appropriate private placements if the district’s program is found inappropriate—even if the parents acted unilaterally. Today, this principle is settled law.
Continuing themes
What stands out is how the concerns Barb Bateman identified—delays in due process, financial burdens on families, and limits of Equal Protection—still echo today. Despite IDEA’s improvements, parents continue to face protracted disputes and significant costs. Litigation over attorney’s fees, reimbursement, and systemic barriers continues to occur.
Conclusions
Barbara Bateman’s 1985 column is both a historical artifact and a prescient warning. Many of the gaps she identified have since been addressed through landmark cases and congressional action, but the underlying challenge—ensuring students with disabilities receive a free appropriate public education without forcing families into years of costly litigation—remains unfinished business.
Reference
Smith v. Robinson. (1984). 468 U.S. 992. https://supreme.justia.com/cases/federal/us/468/992/