For the last five years, I have had the honor of being lead counsel for Zachary Deal and his parents in the Deal litigation referred to in your March 3, 2003 article [Commissioner Henry Says County Schools Spent $2,280,000 On One Lawsuit]
I am quite taken aback to see the Hamilton County Department of Education admitting in the media that it apparently has spent at least $2,280,000 to (unsuccessfully) defend a relatively small reimbursement claim and that this spending spree is not over. It is shocking to see that admission not only because Hamilton County lost the case both at the administrative level and before the Sixth Circuit Court of Appeals, but because to date, the collective value of the costs and attorneys' fees incurred on Zachary's behalf in this litigation by my law firm and our local counsel in Tennessee is a mere fraction of what the Hamilton County Schools have paid out to its own counsel and expert witnesses. I am puzzled that the costs and attorneys' fees we have recorded to date on Zachary Deal's behalf amount to (at most) approximately 25% of the costs and attorneys' fees that the Hamilton County Schools have paid out to date in this case.
The Sixth Circuit Court of Appeals has held that school districts are not required to offer students a "Cadillac" program, but only the educational equivalent of a "serviceable Chevrolet." Ironically, in its ostensible quest to conserve taxpayer dollars, the Hamilton County Department of Education apparently has so far written taxpayer- funded checks that would have purchased a small fleet of Bentleys. To put it in human terms, the veritable fortune of money that the Hamilton County Department of Education has paid out to date in Zachary's case would have been sufficient to pay for the educational programs of dozens of children with autism and other disabilities. Similarly, how many experienced teachers might have been hired with this money?
Looking at the Hamilton County Schools' printed response to Commissioner Henry's comments (a response presumably written by counsel), one might conclude that the Hamilton County Schools did absolutely nothing wrong and that the Hamilton County Schools are being victimized by an unreasonable Deal family. The Sixth Circuit Court of Appeals held otherwise in its December, 2004 Decision, as did the Administrative Law Judge way back in the Summer of 2001, just weeks before the September 11 attacks. A verbatim copy of the Sixth Circuit's Decision in Zachary's case is posted to my website, mayerslaw.com. The Court's decision speaks volumes.
The Sixth Circuit held that the Hamilton County Department of Education violated some pretty fundamental federal statutory entitlements. Among its other findings, the Sixth Circuit held that:
- The evidence reveals that the School System, and its representatives, had pre-decided not to offer Zachary intensive ABA services regardless of any evidence concerning Zachary's individual needs and the effectiveness of his private program. This predetermination amounted to a procedural violation of the IDEA [the federal statute]. Because it effectively deprived Zachary's parents of meaningful participation in the IEP process, the predetermination caused substantive harm and therefore deprived Zachary of a FAPE [a "free and appropriate public education"].
- The facts of this case strongly suggest that the School System had an unofficial policy of refusing to provide one-on-one ABA programs and that School System personnel thus did not have open minds and were not willing to consider the provision of such a program...no matter how strong the evidence provided by the Deals, the School System still would have refused to provide the services. This is [impermissible] predetermination.
- Tthe School System deprived the Deals of a meaningful opportunity to participate (their participation was no more than after the fact involvement. (p. 14-15)
- The Deals were told by School System personnel that "the powers that be were not funding ABA programs."
The Sixth Circuit predicated its December, 2004 Decision, in large part, upon the extensive fact findings made by the Administrative Law Judge back in 2001. Those findings included a finding that during a March 3, 1999 IEP meeting, Jane Dixon [a Hamilton County Schools administrator] told the Deals that they could not ask questions. Since Zachary has autism and has very significant communication deficits, it is sad, if not shameful, that Zachary's parents were precluded from communicating any questions at the March IEP meeting. Let it suffice to say that the Sixth Circuit's Decision explains in careful detail why Zachary's parents brought this case, and why the Hamilton County school system did not prevail.
The Sixth Circuit's Decision shows why the Deals were left with no choice but to go to court to protect Zachary's statutory entitlements. The Deals, who were asserting a relatively minor reimbursement claim, certainly did not force the Hamilton County Schools to spend (so far) some $2,280,000 dollars in litigation costs. Unfortunately, these costs are continuing to mount to the extent that Hamilton County continues in its appeal efforts. Is someone going for some kind of world record here? Since Zachary and his parents have so far substantially prevailed in the litigation, the Hamilton County Schools will soon be asked to pay Zachary's lawyers and other recoverable costs, as the IDEA statute expressly provides.
Any suggestion by Hamilton County that the Deals or their counsel have not attempted to settle this matter in good faith is simply not accurate. Last week, I was interviewed on the Today Show with my book How To Compromise With Your School District Without Compromising Your Child. Ironically, I shared the interview stage with Tom Kelly, the Superintendent of the Valhalla, New York School District. Mr. Kelly and I were discussing how parents and school district can work together collaboratively in an effort to avoid having to go to litigation! At every stage, including the current one, the Deals have expressed an interest in resolving this manner in a fair and reasonable manner. Hamilton County's response? Paying out literally millions in attorneys' fees and expert fees. Fees that continue to mount. Inertia apparently is a very powerful force in Hamilton County.
According to the unidentified "School Officials" who are quoted in the Chattanoogan article, the reason that the Hamilton County Schools have so far spent $2,280,000 trying to defend this case is their apparent belief that Zachary's program would cost approximately $60,000 annually, and their apparent projection that "If that program was implemented for every child with the same need in the school system, the cost would exceed $10 million per year on a reoccurring basis."
On this point, there are multiple ironies. The first irony is that after spending millions ostensibly to keep ABA out of Hamilton County, ABA programming apparently is now being introduced in Hamilton County classrooms. While this clearly is a positive development, it is sad that Zachary and the Deal family had to endure a $2,280,000 legal onslaught to pioneer this opportunity for other similarly affected children in Hamilton County. It would not be an overstatement to say that Zachary's parents are heroes who should be applauded by the community. The other irony is that, to the best of my knowledge, Hamilton County's "fear factor" anticipation of a $10 million annual problem has simply not materialized. In the last five years, my office has not brought any additional due process proceedings in Hamilton County, and we are not aware of any parent who has done so with other counsel. So much for the anticipated annual $10 million dollar problem.
Almost a century ago, Justice Brandeis of the U.S. Supreme Court wrote that "sunlight is the best disinfectant." On behalf of the Deal family, I want to thank your publication for bringing to light a matter of significant public interest.
Mayerson & Associates
330 West 38th Street
New York, New York 10018