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age 12, in that summer camp and then when he went back to his regular program, he lost that.

Senator KERRY. Just a final question that I would like to ask you as I did Mary.

How did this impact your family relationship and community relationship? Was there a strong negative impact on that, or how would you describe that?

Mr. ABRAHAMSON. It has to. There are obviously great stresses within the family. I think that it had a serious effect on our eldest daughter. Danny is in between two girls, and I think that it affected her quite a bit. I think that in some ways it affected my performance on the job, because I spent so much time following the case with my wife. Our relationships with our neighbors in the town, it is a small town.

We decided just to keep a low profile because there were a lot of people with the attitude, I think, that basketball uniforms and football uniforms are what education is about and I am sure that it is important, but it is a process of education that has to take place in the entire country before people realize that everyone is entitled to an education.

Senator KERRY. Thank you, Mr. Abrahamson.
Just one question for Mr. Dussault.

Is there anything in the mediation process that could be changed or improved that might result in a less contentious litigious consequence?

Mr. DUSSAULT. I think that we come back to the issue of equality between the parties. Mediation will only work if both parties assume that there is a risk of unsuccessful mediation. I would hold great hope for a mediation process as a halfway position, if there was some sort of sanction for the failure of mediation ultimately, such that if there were an attorney's fee provision or a sanction against inappropriate performance, or an allowance, such as in Burlington, to allow the parents to unilaterally place, in the event of an inappropriate program--then I think mediation would have something to say for it.

But when no one is at risk, or when one side perceives the mediation as not being important, then it is used solely as a delaying tactic, and when the delays operate against only one party in the process, then I cannot suggest it or support it.

Senator KERRY. Thank you all, not only for your testimony but for your advocacy. I appreciate it.

Thank you very much, Mr. Chairman.

Senator WEICKER. Thank you very much, Senator Kerry and to every member. We appreciate your testimony.

The last panel to testify will consist of Edwin Martin, now from Albertson, NY, the former Director of the Bureau of Education for the Handicapped, and Mr. E. Richard Larson, an attorney for the American Civil Liberties Union of New York.

While they come to the table, we will give our good friend here a recess.

The committee will stand in recess for 3 minutes.
[Whereupon a short recess was taken.]
Senator WEICKER. The committee will come to order.
With that, why do we not proceed in the order that I announced.

Mr. Martin?


Mr. MARTIN. Thank you, Mr. Chairman.
Thank you, Mr. Kerry and other members of this committee.

I am Édwin W. Martin, president of the Human Resources Center in Albertson, NY, which is the home of the National Center on the Employment of the Disabled. From 1969 to 1979, I was privileged to serve as the Director of the Federal Bureau of Education for the Handicapped, and in 1980 was nominated by the President and confirmed by the Senate to serve as the first assistant secretary for Special Education and Rehabilitation Services in the new Department of Education.

I am here today to offer support for S. 415, which amends the Education of the Handicapped Act to authorize the award of reasonable attorney's fees, and which would clarify the effect of the Education of the Handicapped Act on rights, procedures, and remedies under other laws.

I might say simply that I think that this legislation is extremely useful and vital to the appropriate implementation of Public Law 94-142. I had the opportunity to work closely with Senator Stafford and other members of this committee and their staffs as well as parents and educators during the time from 1971 to 1975 when the bill was developed and a key premise of the bill was to assure that parents and disabled children would be able to have full due process protections under the law. When I came to Washington in 1966 for the first time, it was to serve as staff director for the Ad Hoc Subcommittee on Handicapped in the House.

And we began the first hearings which led to the Education of the Handicapped Act being passed in 1967. We took more than 1,000 pages of testimony in that committee from parents and found that only one handicapped child in five was receiving appropriate special education. And that the parents could be turned away by school districts when they sought enrollment. There was not one State in the United States that offered full opportunity for education of those handicapped children. Many States had mandated such programs, but none was enforcing them fully and most had exclusionary provisions, which allowed the school districts to turn away children. Parents had no recourse at all.

It is hard for any of us who did not talk with parents or who did not face these problems personally to imagine the distress that parents face when a school district told them, “We cannot help you, go away." These conditions persisted until the implementation of 94142 a decade later, and in some limited instances, still persist as we have heard today.

In other situations, children were placed inappropriately in existing special education programs. I do not know how many times parents told me about having their child, let us say, a cerebral palsy child with normal intelligence placed in a classroom for the retarded because that was the only class available. Or how children were often sent off to a state school when they could have been educated in their home community. Children with learning disabilities or emotional problems were told by the schools that they were lazy and not motivated. One of the most inappropriate placements was to take all the children who were disabled and put them in one building without regard to their educational needs, but just because it was administratively convenient to have all the classes there. Whole groups of children-children with Down's syndrome, for example, were frequently classed as needing to be in a State institution without regard to the fact that they might have the ability to benefit from a school program, a special education program.

The problems that I mentioned did not disappear entirely with the passage of Public Law 94-142, nor as the result of the decisions in a number of Federal and State courts. Based on these experiences the Congress developed the due process procedures to assure parents of a mechanism for appealing decisions which they felt were inappropriate. In the years between 1976 and 1981, I had the overall responsibility for managing the Federal Government's special education and rehabilitation programs and for attempting to improve the performance in the States in their efforts to implement the new law. Each year our staff visited States and we found that while improvement was noticeable, there were continuing problems. We discovered failures to provide physical and occupational therapy and other related services such as catheterization, and we found children placed inappropriately, we found inappropriate IEP's. We found failure to provide due process protections. We found a variety of other problems. A number of these problems resulted in litigation. Some of them under section 504.

I might say here that Public Law 94-142 does not provide a full range of effective mechanisms for dealing with individual problems. While the law provides the due process procedures which are conducted at the local and State level and the ultimate resolution at the court level—the only remedy really available to the executive branch is to terminate funding to the State, or through the State to terminate funding or delay funding sometimes during the approval process of a State plan in the school district. This is both legally cumbersome and politically and educationally unattractive and, in fact, has seldom been done. Although, as the Senator knows, I frequently did delay funding to a number of states until we tried to have some leverage to them and in many instances that did work.

Senator WEICKER. The problem is, as you correctly infer, the problem is that the impact of that falls on the child and not the wrongdoer which is the State.

Mr. MARTIN. And that is the point, that in order for the system to work well in protecting children, the parents' opportunity to participate in hearings at the local and State level and ultimately to seek judicial relief must be encouraged. Without an effective due process system there is really no protection for children and parents in the law through the administrative process.

The protections of section 504 and the diligent compliance efforts of the Office of Civil Rights to enforce this law have proven critical to the effective function of Public Law 94-142. I might add here that I am disappointed that the Federal Government's efforts in monitoring and compliance have been so markedly reduced since 1980.

I could not help but think, when I listened to Mrs. Tatro, that in 1980 we clarified the regulations after a very careful process to indicate that clean intermittant catheterization should be provided under Public Law 94-142 and that regulation has been in effect since 1980. It took a great deal of care to get that regulation thought through. Judge Hufstetler, who was then Secretary of Education, reviewed it personally very carefully and it is, of course, the basic intention that was put into place at that time, that the Court affirmed in that case. It should have been possible for the school district and the State of Texas to decide that on the basis of that regulation in 1980.

It should be pointed out here that local school districts in the States have complied with Public Law 94-142 and their record in providing education for all handicapped children has really been quite good. The number of situations where problems occur is small. For example, if 99 out of 100 children were educated without an appeal, there would still be 42,000 hearings among the population of 4.2 million children. If 999 cases out of 1,000, which would be a very good record indeed, worked smoothly, there would be 4,200 hearing cases annually.

The fact of the matter is that for the last year for which the information was available, 1983, the National Association of State Directors of Special Education identified only about 1,400 cases and only 67 cases went to court action.

The total number of administrative hearings declined in a comparable group of States from 1,800 in school year 1979-80 to approximately 1,100 in school year 1983-84, and the percentage was reduced by 39 percent over those years, during which time the remedies that would be available through 415 were in place, for the most part.

What I wish to communicate is that the relief that we seek, while critically important to the integrity of this system, as well as to the 1,000 or more families who might be involved, is not likely to exhaust the resources of the educational system. Why is it so critically important then?

First, in my experience with administering the law, the parents who have the least resources available to them in terms of income and education, and sometimes they are parents without familiarity with our language and culture, are much less likely to use the due process system than are parents who have more sources available to them.

Further, the group of children whose parents may have less income and who face more complicated problems in their environment need the resources of the education of the Handicapped Act most critically.

I know the distinguished members of this committee, a number of whom are attorneys, know how expensive it is to prepare a case for Federal district court. I might add here that I know of parents who have faced legal fees of $4,000 for a due process hearing alone, not court action.

And it is hardly something that the average parent can afford. Should the case require an appeal or possibly go on to the Supreme Court, the expense becomes impossible to bear for all but a few wealthy parents. And the inability to cover attorney's fees will not only stifle the rights of these people with low or middle income, but virtually any parent unless that parent is able to find free legal service. Perhaps more importantly for all children, without the possibilities of court relief the due process hearing system will lose its effectiveness.

School districts are generally represented by attorneys at local and State hearings. Without legal recourse, the parents will have to give up on their attempts to rectify their child's problems as we have heard so well from the other panel earlier.

I think that one of the first times that I faced this, Senator, was a very interesting situation. A gentleman who was a general counsel of one of the Cabinet departments went through a due process hearing on his own child and told me how beaten and battered they were by that experience. They had decided to hire their own counsel and had paid the fees for it for the hearing. During the hearing, the school district resisted, implying that there was a great deal of responsibility on the part of this gentleman and his wife for the child's problems and so forth and so on. And he came back and he said to me; "You know, I never had quite appreciated what all of this was about, until I, as a former corporate attorney, and the general counsel of the Cabinet department got beaten around the ears. And if I cannot deal with this thing, how do other parents do it?''

That experience has stuck in my mind all of these years as I have thought about the need for 504 and the need for Public Law 94-142 legal resources.

I think that there is a good balance, by the way, under S. 415. The school districts can save dollars by settling the cases promptly. The parents, on the other hand, really risk losing everything if the case is not found in their favor. It is hardly a one-way street. And the school districts already have a good deal of advantage. They appoint the hearing officers, they train the hearing officers and so the process does not begin on completely neutral turf, even starting as it does.

In the course of my work in my teaching, I try to stay in close touch with parents of handicapped children and informed of the issues raised in the courts. I have been interested, for example, in the Burlington case, which as mentioned was just resolved 2 weeks ago. Here the parents also went all the way through the Supreme Court. In this case, I might say that it is kind of interesting as Senator Kerry well knows, that the State of Massachusetts eventually became on one side of this issue and the school district on the other—the case is Burlington v. Massachusetts. And the court, as you know, awarded the costs of educating the youngster in a private school, something that the parents had been fighting for and had won at most levels throughout. But at the end of all of that, again, no legal fees, and so we have this ironic circumstance of going all the way through the courts, to the Supreme Court, getting tuition paid for the school year 1979-80, but no legal fees as a result of it.

I am serving now on the mayor's commission on special Education in New York and there have been two historic Court suits

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