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After the debacle of Smith v. Robinson, we turned to you for just a bit more dry powder so that we may sustain our seemingly endless battles. My son Danny's story began 11 months after birth in 1966.
One of three children, he was diagnosed developmentally retarded, a great shock to parents who typically, I am sure, never expected anything to go wrong. Danny is multiply handicapped, with a kidney disorder and neuromuscular seizures. He is severely retarded with autistic-like behavior and has no verbal communication.
The first dragon facing parents of handicapped children is the piecing together and maintaining of the proper medical support structure. This is, in itself, an expensive time and energy consuming endeavor, which in our case involved the mental health establishment.
The second dragon intimidating the parents of the handicapped child is the educational establishment. Some people of this establishment, perceiving perhaps more obligation to administrate than to educate, are busy balancing school budgets, never mind the lofty intent and the wording of a right-to-education statute. So that when a parent petitions his school district for a program appropriate to his child's individual needs, per the statute, he is very often offered a totally inadequate response.
Danny's “formal” education began in 1969 at a preschool day program. It suddenly became clear that he was intractable both at school and at home. And in 1975 he was placed in an austere residential program which could not handle his 12 to 20 daily attempts to escape. He was eventually placed in a more capable and costly year-round residential program despite tenacious resistance by our town's school superintendent.
In 1979 the school authorities precipitously decided to ship him back to a 10-month public school program. Since the program changes offered were, from past experience, totally inadequate we were forced to reject the education plan, and were thereby plunged into the full administrative appeals process. This required us to hire an attorney and expert witnesses to defend our position in the hearings requested by the school officials, who were represented by legal counsel.
We were now face to face with our third dragon: The legal industry surrounding our judiciary. The wheels of justice grind exceedingly fine and slow, and expensive. By the time our April 1980 State administrative hearing was lost, and then our October 1980 State administrative appeal was lost, we were out of pocket and low in spirits.
Nevertheless, we filed suit in Federal district court in January 1981 against the School Committee and the Commonwealth of Massachusetts but had to hurdle sundry expensive maneuvers and injunctions to ensure that the town continued Danny's education while the appeals proceeded.
In a February 1981 hearing, the Federal judge remanded the case back to the State's administrative hearing officer for reconsideration in light of new evidence.
In June 1981, we lost the remand decision by the State administrative hearing officer, who reaffirmed his original order.
In July 1981, the Federal court took additional evidence from expert witnesses. In January 1982, the court agreed with us that a free and appropriate education for Danny includes a residential program because it is essential to his learning of communication and self-help skills. One of several ironies in this case was that it took a Federal judge to use a Federal statute in order to enforce a State law, Massachusetts Chapter 766, upon which our precious Federal law was modeled.
Our relief was short-lived however, upon notification that the town had appealed the case to the U.S. First Circuit Court of Appeals. By this time, expenses for legal services, expert witnesses, court costs, and transcribing days of testimony was into five figures. We then learned that it would cost us at least an additional $5,000 just to continue. It was timed perfectly, just when I lost my job. Were it not for the prompt support of the nonprofit Massachusetts Advocacy Center-whose attorney on the case is with us today, sitting behind us—and other organizations, who became amici curiae in the first circuit of appeal, we might not have eventually prevailed in 1983, because we had been ground down to our knees although I believe that we never let it show. The fact that we again prevailed, however, still did not entitle us to reimbursement for our considerable expenditure on attorneys and expert witnesses.
It is also quite clear that it is not possible to even go through even the administrative hearings without competent legal representation and expert testimony. This would risk jeopardizing an entire case at its inception because the careful preparation of evidence and questioning of the witnesses is essential.
Most of this happens at the quasi-judicial administrative hearing. Therefore, we urge that Congress expressly authorize administrative hearing officers as well as courts to award to parents who prevail, reimbursement for their considerable expenses incurred in both administrative and judicial proceedings. Authority to reimburse for the administrative hearings should also be given to the administrative hearing officers because the parties should be discouraged from appealing to the courts unless absolutely necessary.
Mr. DUSSAULT. Thank you, Mr. Chairman, and members of the panel.
My name is William Dussault and I am an attorney in private practice from Seattle, WA. Having submitted my written testimony in advance, I am going to depart from reading it just slightly and give you some personal perspectives on this issue that perhaps might be illuminating.
I have had the opportunity to represent parents like the ones who are on the panel today, for almost 15 years in special education litigation. In the State of Washington, we were fortunate to pass a law requiring due process proceedings in special education as early as 1970. In that context, I have represented many hundreds of parents at the negotiation stage, the administration stage, and subsequently in litigation.
It is my strong belief that when both our State law was passed and our Federal law was passed there was a presumption that the parties would have a certain equality; that there would be respect between the parties. The school district would respect the parents for their knowledge of their particular children and that the parents, in turn, would respect the school districts for their knowledge of education of handicapped children in general.
It is my experience in literally hundreds of negotiation cases that the anticipated respect has, in fact, been granted between the parties and that there are only a small number of cases where, for whatever reason, a dispute arises. I have represented parents with all kinds of socioeconomic backgrounds; all kinds of questions and having children with all types of disabilities, from the mild disabilities to the very severe.
Some of the parents have strong feelings and some are only mildly involved. But we place them all within an administrative hearing process where the premium appears to be on winning. It is almost like the Vince Lombardi school of litigation; the contest becomes everything, not the outcome for the child. We have lost sight of the fact that what is really at risk here is the child.
In the early years of the due process hearings that went on in the States, the primary focus was the child. We focused on trying to obtain the appropriate individualized program for the child. It was my experience that school districts “lost”-I use that term in a very limited context-more cases than they won. They became aware that their traditional autonomy and position of authority was being eroded by a new concept in education.
Clearly 94-142 signaled a revolutionary new concept in education, giving parents an equal and a substantial right to determine programs with the school districts. And that is unique in education today.
The hearings started to become more and more formalized. School districts used in-house counsel, hired expensive out-of-house counsel, sometimes used county prosecutors, sometimes used State attorney generals. Counsel was always available to the school districts. Counsel was not similarly available to the parents.
I think it is very, very important to remember some facts when we hear criticisms that S. 415 will trigger a flood of new litigation, with aggressive attorneys bringing suits solely for the purpose of achieving attorneys' fees. Awards of attorneys' fees were available to some degree prior to Smith. We saw a split in the circuit courts in the United States with some courts awarding attorneys' fees, culminating 94-142 causes of action with section 504 and section 1983 causes of action under civil rights laws. Even though attorneys' fees were awarded in some cases, prior to Smith, in fact, in the vast majority of litigation, the courts exercised their discretion and did not make such awards. Even when fees were considered by the courts, they were considered on the traditional bases used for evaluating such claims. It was not by any means an automatic award.
I think that you will find that, given the numbers of hours and effort put into such litigation, the attorneys were quite often eating a good deal of their hourly fees, if not a substantial portion of them. The awards made by the court did not come close to compensating the attorneys involved for the time that they had put in.
A broad group of attorneys specializing in special education cases, if you will, a bar for the parents in bringing these cases, has simply not developed in the United States. There are less than 10 attorneys in the United States in private practice who do these kinds of cases on a regular basis. Special education law is complicated, and it is difficult and it is highly technical. It requires the assistance of expert witnesses that are also expensive.
It is only through the incredible efforts of parents, such as those here on the panel, that any of these cases come to court. I know of no case where the parent has been able to fully compensate the attorney for all the services rendered in these special education dueprocess appeals and the subsequent appeals. It simply has not happened.
I think that it is important as we look at the process to look at the balance of power between the two parties. The due process procedures were meant to resolve possible negotiation impasses in the development of students' programs. Public Law 94-142 established a system where parents and school districts could come to the table to attempt to develop a program on an equal basis. When an impasse is reached in that process, the law allows a due-process proceeding. Any negotiation process and you are aware of this in your work here in the Senate-nationally and internationally, depends upon both sides wanting something, and at the same time having something to lose.
If one side in the negotiation process is not at risk, has no jeopardy, then what incentive is there for that side to negotiate? We know that under the law the student is required to remain in the then-current placement during the entire pendency of the due process proceeding.
That is, of course, to the advantage of the school district, which has placed the child in that program prior to the negotiation. We know, from the recent Supreme Court Burlington decision, that if the parents remove the child from the then-current placement, they do so at their own financial risk, quoting from the Court's opinion. Thus, there is no incentive for the parent to drag this hearing out, to make it complicated and extended.
The advantage is to the school district, because the child remains in placement during that period of time, at the school district's advantage. There is no disadvantage to the school district as to attorneys' fees, at this point, because they have their in-house counsel or they have counsel provided through Government sources. Essentially the school district has no risk in the proceeding, and it is to their advantage to delay.
The parents on the other hand know that they have 12 to 14 years of public education provided at public expense for their child. The cases represented before you on this panel took 6 years and 4 years respectively out of a total educational program of 12 to 14 years. Was that to the child's advantage? Was that to the parent's advantage?
Clearly not. It is to the parents advantage to settle the case quickly and efficiently to negotiate at the earliest possible stage. That negotiation can only take place if both sides on the negotiating table understand that there is some potential jeopardy for them.
The recent Supreme Court Burlington decision, places the school district in some jeopardy; they now know that if their program is ultimately not to be appropriate, the district may bear some costs. S. 415, simply equalizes the position with regard to attorneys' fees. If the district fails to negotiate in good faith, the parents are going to have no option but to go to due process or to litigate. With both the Burlington ruling and S. 415, both parties are placed in an equal negotiating position.
This provides the necessary incentive to bring the parties to the table on an equal basis. Far from encouraging litigation, I would tend to agree with Senator Stafford that this law is going to remove the impetus for a litigation. It is going to remove the incentive of the school district to delay, to obfuscate. It is going to encourage them to come to the bargaining table in good faith, to avoid future costs. And in that respect, it is going to substantially bring us back to the implementation of the law as it was intended.
I support your efforts. I am honored to present to this panel, I am more honored frankly, to sit at the same table with the parents that have not been beaten down by the exhaustion imposed by school districts.