Strike two
Bateman's legal corner: What was Barbara Bateman saying about the Tommy S. case in the original SET of 1985?
Editor’s note: In the original print version of Special Education Today, Barbara Bateman contributed columns offering legal observations about special education. Here SET is reprinting the contents of one of those columns that appeared in 1985 on page 14 of volume 2(1). I am pleased that noted contemporary legal scholars, Mitchell Yell and David Bateman reviewed this column and offered 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
B. Bateman’s 1985 column entitled ”Strike Two”
Many advocates for the handicapped considered the U.S .Supreme Court's Rowley decision, which placed limitations on judicial review of substantive decisions and gave deference to educational authorities’ views, to be a strike against the rights of handicapped children. The Court's decision last summer [1984] in Smith v. Robinson is now being considered by some to be strike two. Here's why.
Among his other disabilities, Thomas Smith III has cerebral palsy and emotional problems. In 1975, when Tommy was seven, the public schools placed him in a hospital day program. In 1976, the schools told his parents that the schools would not fund that platement because it was the responsibility of the State Division of Mental Health, Retardation, and Hospitals. This meant that the parents would have to pay a part of the program costs. Thus began what the U.S. Supreme Court described in a classic understatement as a complicated procedural history.
Tommy's parents appealed the school's decision and went to federal court to have his placement maintained during the appeal. By 1978 they had appealed twice and in 1980 the Rhode Island Supreme Court ruled that the schools must pay for Tommy's education. After nearly five years, the parents had won the right to a free education for Tommy
Supreme Court Ruling
However, following another three years of appeals and legal maneuvers, the U.S. Supreme Court ruled that the parents were not entitled to recover their attorney's fees (see [physical] SET, Vol. I, No. 5, p. 2). The parents had raised Constitutional claims of Equal Protection and Due Process and statutory claims under the Education of All Handicapped Children Act (EHA [now known as IDEA]), section 504, and state law. Because EHA does not specifically authorize an award of attorney's fees under the American rule, they may not be awarded. Consequently, attorneys have sought fees under section 504 or under section 1983 of the Civil Rights Act which allow recovery for violation of federal statutory or Constitutional rights. Lower courts have been split on whether these sections could be used to recover fees in special education cases.
In Smith, the Supreme Court refused to allow the recovery of attorney’s fees. The majority of the Court relied solely on its interpretation of the intent of Congress when EHA was written, In a strong dissent, three Justices disagreed, arguing that Congress, in fact, fully intended to allow recovery of attorney's fees. If the dissenting Justices opinion is correct, then Congress will have to "revisit the matter" and amend ЕНА .
Ironies
One of the ironies in Smith is that the very comprehensiveness of EHA has now been turned against handicapped children in two ways. First, because it is comprehensive and courts conclude that it provides its own relief, the courts preclude the greater relief (e.g., attorney's fees) that are available under the Civil Rights Act when less comprehensive laws have been violated. Second, it is argued that to allow the recovery of fees in addition to comprehensive services is unduly burdensome on state finances.
If EHA is to retain its vitality, it is essential that Congress amend it to provide for attorney's fees. Can parents, who worked so long and hard for the passage and defense of EHA, rally once again to get Congress to alter EHA? In the meantime, few parents will be able to afford the $30,000, $50,000, or even $100,000 in legal fees that it may take to obtain a free appropriate education for their child.
M. Yell’s & D. Bateman’s 2025 observations
At the conclusion of her “Strike Two” column, Barbara Bateman was prescient! Barbara noted that if the EHA (now the IDEA) was to retain its vitality, Congress needed to amend the law to include attorney’s fees. In this case, Smith v. Robinson (1984), the Supreme Court established parents could not recover legal expenses incurred in pursuing suits under the Education for All Handicapped Children Act. In another special education decision handed down on the same day as the Smith ruling, Irving Independent School District v. Tatro (1984), the parents were denied attorney’s fees even though they prevailed in their action against a school district.
As Barbara noted, in Justice Brennan’s strong dissent to the ruling (he was joined by Justices Marshall and Stevens), Brennan wrote that “Congress will now have to take time to revisit the matter. And until it does, the handicapped children of this country whose difficulties are compounded by discrimination and by other deprivations of Constitutional Rights will have to pay the costs. It is at best ironic that the Court has managed to impose this burden on handicapped children in the course of interpreting a statute wholly intended to promote the educational rights of those children” (p. 992).
In an amendment to the IDEA passed in 1986, the Handicapped Children’s Protection Act (HCPA), Congress granted attorney’s fees to parents who prevail in lawsuits against school districts in special education cases, thus, overturning the Supreme Court’s ruling. According to the law “In any action or proceeding brought under [the HCPA], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a [child with disabilities] who is the prevailing party (IDEA, 20 U.S.C. § 1415[e][4][B]).
A major provision in the HCPA was that parents could collect attorney’s fees only if they were the prevailing party. If parents did not prevail on a major point of their suit, they were not entitled to attorney’s fees. In addition to the costs of litigating the case, attorney’s fees could include costs of tests and evaluations, time spent in monitoring and enforcing a judgment, travel time, secretarial tasks, consultation with outside experts, and the work of paraprofessionals (e.g., paralegals, law clerks).
The HCPA established that:
In any action or proceeding brought under [the IDEA], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a [child with disabilities] who is the prevailing party. (20 U.S.C. § 1415(i)(3)(B)).
Whereas this was a major victory for families, the HCPA also set clear boundaries. Attorney’s fees were not awarded if:
Parents rejected a proper settlement offer and achieved no greater relief at hearing or trial.
Parents were not the prevailing party.
The litigation was unreasonably prolonged or fees were excessive compared to local rates.
In Arlington Central School District Board of Education v. Murphy (2006), the Supreme Court further narrowed fee recoveries, holding expert witness fees were not reimbursable under the IDEA unless Congress explicitly authorized such compensation.
The Bigger Picture: Litigation Grows, Access Declines
Since the passage of the HCPA, the number of special education disputes resulting in due process hearings and lawsuits has risen substantially (Zirkel, 2024; Zirkel & Zagota, 2024). In the decades following Smith and the HCPA, the availability of fee recovery made it more feasible—though still difficult—for families to challenge school decisions.
However, barriers remain:
The cost of litigation often exceeds what low- and middle-income families can afford even with fee recovery.
There are fewer legal aid organizations willing to take on complex special education cases.
Many parents still lack access to qualified attorneys, particularly in rural and underserved areas.
Recent court decisions, like Perez v. Sturgis Public Schools (2023), reinforce parents’ right to pursue claims under Section 504 and the ADA even if they do not exhaust IDEA procedures, reflecting the continuing evolution of this legal landscape.
Conclusion
Looking back from 2025, Barbara Bateman’s warning proved prescient. With nearly 40 years of hindsight, it’s clear that Smith v. Robinson was both a setback and a turning point. In restoring fee recovery rights, the HCPA helped preserve the IDEA’s promise of a free appropriate public education.
Yet the litigation burden has shifted, not disappeared. As of the summer of 2025, special education law remains a minefield of procedural rules, legal nuance, and power asymmetries. As we now observe:
Fee recovery helps but does not equalize.
The high cost of evaluations, enforcement, and hearings discourages many families from pursuing legitimate claims.
Schools often settle cases quietly, avoiding public scrutiny but also limiting system-wide improvements.
Reference
Perez v. Sturgis Public Schools, 3 F.4th 236 (6th Cir. 2021), Supreme Court slip opinion retrieved from https://www.supremecourt.gov/opinions/22pdf/21-887_k53m.pdf
Zirkel, P. (2024). CADRE’s national data on the frequency of due process hearing decisions under the IDEA. West’s Education Law Reporter, 421, 763–767. https://perryzirkel.com/wp-content/uploads/2024/05/an-analysis-of-expedited-due-process-hearing-decisions-under-the-idea.pdf]
Zirkel, P., & Zagata, E. (2024). CADRE’s national data on the frequency of due process hearing decisions: Suggested adjustments. West’s Education Law Reporter, 422, 24–34. https://perryzirkel.com/wp-content/uploads/2024/06/cadre-data-article-2024.pdf
The late Barbara Bateman was a legal analyst and special educator in Creswell, Oregon. David Bateman lives in Charlottesville, VA, is a principal researcher at the American Institutes for Research, and can be contacted at SpecialEdConsultant.org. Mitchell Yell lives in Columbia, SC and is the Fred and Francis Lester Palmetto Chair at the University of South Carolina. Mitch and David publish notes about special education and legal matters at SpedLawBlog.