Public School Integration of Children with Handicaps after Smith v. Robinson: "Separate but Equal" Revisited?

Under the direction of Chief Justice Burger the United States Supreme Court has issued several opinions limiting the availability of federal causes of action. While one benefit of this trend may be a reduction in the volume of federal litigation, the costs may include the limitation of substantive federal rights. The recent Supreme Court decision in Smith v. Robinson narrowly construed the availability of certain federal causes of action, and it illustrates how such a ruling, although procedural on its surface, in reality can operate to erode substantive rights. In Smith the Court concluded that a handicapped child could not receive an award of attorney's fees upon prevailing in an action to secure a "free appropriate public education." In reaching its conclusion the Court held that certain traditional means of securing civil rights which also provided for the award of attorney's fees are unavailable to children with handicaps. Specifically, the Court held that a child with a handicapping condition could not assert the equal protection clause in a section 1983 action as the basis for a claim to a free appropriate public education. The Court further held that a handicapped child could not assert section 504 of the Rehabilitation Act of 1973, popularly known as the "Civil Rights Act for the Handicapped," as the basis for his claim to a free appropriate public education. Removing such causes of action from the grasp of children with handicaps may have repercussions beyond the elimination of attorney's fees. Smith could be viewed as a precursor to the abandonment of the goals of equal educational opportunity and integrated education for the handicapped.