I do not mean to say that parents need attorneys in the first instance to help them press for better quality programs. The opposite is probably true. But what many parents have told me is that they've tried and tried to get something appropriate for their child by having meetings with school officials and been ignored. They think, and I agree, that those early meetings would be more fruitful if the district was not so confident that it could cavalierly ignore the parents' requests without fear of later adversarial action. The ability of parents to obtain attorney fees if they are successful in ultimate legal action will bring some balance and mutual respect to the penultimate negotiations. Presently, as I'm sure many parents will tell you, a district can make the decision to spend, say, ten thousand for attorneys fees to put off instituting a twenty thousand dollar program while it pursues time-consuming appeals. This decision becomes even easier if the attorney fees for the district are covered by insurance. To answer your question, Senator Weicker, I believe the lack of an opportunity to recover attorney fees has caused many parents in Wisconsin to give up when blocked by school districts at a pre-hearing stage. This not only hurts the children and the parents, but also our state, which is then faced with the increased cost of care for adults with significant handicaps who will not have been taught those skills for independence they might otherwise have acquired. Improve Legal Advocacy The intent of the Act is that where negotiation and organized pressure by parents cannot bring about appropriate programs, this goal be accomplished by individual legal actions on behalf of particular children. Congress made the choice, wisely I believe, that the purposes of the act would best be reached by point to point rather than mass advocacy. That way the unique gifts and needs of each child will not be ignored. Unfortunately, this plan has had one serious drawback in its implementation. Many private attorneys simply lack the necessary background information to step in and effectively and efficiently conduct actions on behalf of children in special education cases. Nothing in the average private practioner's range of activities generalizes well enough to support the tactics needed to conduct due process hearings and court reviews. The fundamental role of the IEP, the prospective nature of the action, the content of evaluations, and even the basic goals of special educational programming are among the topics to be mastered before an attorney can do a good job. If a parent, lacking an alternative, hires an inexperienced attorney, the choice is whether to pay for part of the attorney's education in these areas, or hope for the best and let their counsel wing it. Some attorneys have engaged in a sufficient volume of hearings to become skillful. Many of these represent school districts. A few are parents' lawyers, who, by accepting cases from large regions can find enough parents with the resources to pay for quality representation. Some of the protection and advocacy agencies, like the one where I am employed, have dedicated significant portions of their staff attorneys' time to special education cases (leaving less time available for other issues such as those relating to adults with disabilities, institutional conditions, vocational rights, etc). But a single attorney located in one city in a large state will only be able to do a small number of cases state-wide. As a result I, and many of my colleagues at other P & A's have had to turn down many requests for representation. The availability of attorney's fees in some special education It's easy for a lawyer in a public interest agency to criticize private counsel for not doing special education cases on a pro bono basis. But the fact is that special education cases are so time-consuming that few lawyers can afford to do them without charge. Where a divorce, even with child custody issues might take twenty or thirty hours over a six month period, a special education appeal can easily require hundreds of hours over a period of years. (Incidently, I suspect the duration of appeals will be reduced if the costs of delay are more equally shared by schools and parents.) Thus, the main goal of the law would also be furthered by awarding attorneys' fees in certain cases. Where legal action in individual cases is needed to build good programs, efficient and skilled private counsel will be available to represent the needs of the children affected. I hope you and your committee find this information helpful. Feel free to contact me or my agency if you need clarification or further details. Sincerely, The Dray John Franz Thank you for your kind letter of May 8, 1985 and its invitation to provide written testimony on the referenced legislation. Background I am the Executive Director of Florida's Protection and I am of the strong opinion that the meaningful implementation of Public Law 94-142 necessitates that parents be afforded the right to petition courts for an award of reasonable attorneys' fees and costs when they prevail in litigation brought under the Act. This must include at least an opportunity to request costs and fees incurred in bringing administrative due process hearings. Trend to More Legalistic Proceedings It is important to note at the outset a significant trend with respect to educational due process hearings. These Office of the Governor, The Capitol, Tallahassee, Florida 32301-8047 / Telephone (904) 488-9071, Toll Free 1-800-342-0823 (TDD or Voice) hearings are becoming increasingly formal with an emphasis on procedural due process conducted by law trained hearing officers. In Florida special education due process hearings are conducted by hearing officers assigned from the State Division of Administrative Hearings. These are full-time hearing officers, all of whom are lawyers. They conduct a wide variety of hearings brought under Florida's Administrative Procedures Act. They do not make decisions based upon their own estimation of what is educationally appropriate, but rather as a judge based upon the factual evidence presented before them and the persuasiveness of legal arguments. Appeals to their special education decisions either to the State's District Courts of Appeal or to a U.S. Federal District Court. are The trend in law trained hearing officers is reinforced by recent Federal Court decisions regarding the impartiality of educational due process hearing officers. Virtually anyone with a "professional (i.e. educational) interest" in the outcome of the proceeding has been disqualified. In Mason v. Teague, the U.S. Court of Appeals for the Eleventh Circuit held that even employees of local school systems not attended by the child in question and university personnel involved in the "formulation of State policies in educating handicapped children" lack the necessary objectivity to qualify as impartial hearing officers. It seems to me inevitable in view of the increasingly narrow field from which such hearing officers may now be drawn, other States, like Florida, will turn to law trained officers and consequently more court-like proceedings. In my view this is not an objectionable trend. It is entirely consistent with broader trends in the development of both juvenile and administrative law. While all of us desire enlightened, impartial, nonadversial resolution to conflicts between parents of handicapped children and local school districts, this can not be accomplished at the expense of procedural due process. Nearly two decades ago the U.S. Supreme Court crossed this threshold in connection with juvenile justice proceedings. In re Gault returned the supremacy of legality over informality in juvenile proceedings. For better or worse it is the best way we know to limit abuses of governmental discretion. High Costs of Litigation Unfortunately, legal process is also highly technical, costly, time consuming and largely inaccessible to the average family. The extent of discovery and expert testimony that can be utilized in a typical educational due process hearing can rival a medical malpractice case. The overwhelming mass of State and Federal regulations and judicial case law rivals the anti-trust and securities fields. The Education for the Handicapped Law Report, a legal reference service concentrating exclusively on 94-142 issues, fills five large loose-leaf binders annually. My informal reading of the cases over the last seven or eight years suggests considerably more than half of the decisions reaching Federal Courts result in favor of parents. The astounding fact is how few parents avail themselves of these procedures. In Florida, for example, during the last year there were only 35 requests for due process hearings statewide. This number is due at least in part to the high cost of litigation. The bill to transcribe a single's day's deposition in a recent case I handled was nearly $1,000.00. Expert witnesses cost at a minimum a $150 per day. Handling a single due process hearing can easily cost my office in excess of $5,000 exclusive of travel costs or attorney's fees. Federal litigation, of course, multiplies these costs several times over. The average parent if they can manage to scrape together the resources for the hearing could rarely pursue an appeal. Our office by necessity must be selective in the cases it handles and can not represent all meritorious claims brought to us by parents of handicapped children. The recent U.S. Supreme Court decision in Burlington School Committee v. Department of Education of the Commonwealth of Massachusetts underscores the recognition that final decisions on the merits of an IEP challenged by parents will "in most instances, come a year or more after the school term covered by the IEP has passed. The long duration of these proceedings led the Court to find a right to reimbursement of tuition fees for parents prevailing under 94-142. In Smith v. Robinson, without express legislative intent, the Court was unable to find a comparable right to attorneys' fees awards. I read Burlington as an invitation to Congress to correct this inadvertent wrong. Unequal Contest Many have argued that S. 415 will "restore the balance between parents and educational agencies". I cannot emphasize how imbalanced the present relationship is at the local school district level. In Florida for example, our local school boards are extremely resistant to external involvement. This does not mean that we do not have progressive school districts. We do and many are making great strides in the education of handicapped children. Problems emerge only when a parent elects to challenge a school system's judgement about their child. All school boards in Florida retain as their attorneys the largest and most politically influential law firms in their communities. When a parent requests a due process hearing the matter is immediately placed in the law firms hands. With the school system controlling the educational expertise and the law firm, like Brer Rabbit, at home in the legal briar patch, the parent without a lawyer hardly stands a chance. Conclusion Parental participation and procedural due process are the hallmarks of 94-142. Without the access to legal counsel that attorneys' fees awards can assure these two essential elements are lost to most parents of handicapped children. Respectfully submitted, quathum P. Nessma JONATHAN P. ROSSMAN |