Deal Family Willing To Discuss Settlement
posted May 1, 2005
The attorney for the Deal family said the Hamilton County Schools would be embarrassed if the autism lawsuit gets to the United States Supreme Court.
Attorney Gary Mayerson said the nation's highest court, if it gets the case, "would be highly offended, if not shocked, to see how the Hamilton County Department of Education acted here to victimize a child with autism and his parents."
He said the family is willing to talk with the county schools on settlement.
The County School Board recently voted to take the case on to the nation's highest court. At the same time, the board said it would pursue settlement with the Deals.
The suit, in which the Deals sought special services for their son who is autistic, has been going on for five years. The cost to the county schools thus far is $2.3 million.
On the issue of possible settlement, attorney Mayerson said, "I must advise the board that the Deal family and their counsel are quite torn. On the one hand, after five years of litigation so far racking up about $3 million in attorneys' fees, expert witness costs, and a variety of out-of-pocket expenses, it would be a good thing to avoid further delay and expense. If Hamilton County is now prepared to meaningfully address and resolve the issue of reimbursing the Deal family for Zachary's speech, ABA, etc., paying their counsel and expert witnesses, and reimbursing the Deals and their counsel for the various out-of-pocket costs, there is no good reason why this case has to continue to burden the Deal family and all Hamilton County taxpayers."
Attorney Mayerson said, "The Deal family and their counsel do not need yet another "notch" in their belt by winning at the Supreme Court level (assuming that the Supreme Court would even take the case) any more than Hamilton County taxpayers need to immediately add another $50,000 to the pot to pay their own counsel, and then be potentially exposed to pay an equivalent amount to the Deal's counsel, who will continue to fight zealously on Zachary's behalf.
"On the other hand, to the extent that the Sixth Circuit decision has sent a very important message to school districts via its December 2004 Decision, and its later April 2005 Decision rejecting Hamilton County's application for en banc review, we potentially see an even greater benefit for children with disabilities across the nation if the Supreme Court were to grant certiorari and hear the case and all its highly embarrassing factual detail. The Supreme Court does not take many cases each year. Those cases that it does take are painstakingly and carefully reviewed by the finest staff of clerks in the nation. If certiorari were granted to Hamilton County, we would anticipate that the United States Supreme Court, like the Sixth Circuit, would be highly offended, if not shocked, to see how the Hamilton County Department of Education acted here to victimize a child with autism and his parents.
"The Supreme Court would read in the Sixth Circuit's decision, and in the underlying administrative decision by ALJ Andrews, how about a half dozen HCDE witnesses were expressly found not to be credible in their testimony i.e. they were found not to be telling the truth. Such embarassing findings hardly would impress the Supreme Court. The Supreme Court would then have to deal with the findings that HCDE had, in essence, impermissibly predetermined and dictated Zachary's educational program, that Zachary's family were told at an important IEP meeting that they were not even allowed to ask any questions, and that HCDE personnel, acting upon the instructions of the "powers that be," were carrying out an unofficial "policy" that refused to even consider the Deal family's requests. The Deal family was told that Hamilton County (the same Hamilton County that has so far spent $2.3 million defending this indefensible case) could not afford to provide any of the educational support that the Deals had requested for Zachary. The adjudicated facts of this case are not going to make the Supreme Court sorry for Hamilton County. The Supreme Court could easily seize upon this case as a textbook example of what a school district should NOT do.
"Thus, contrary to Superintendent Register's erroneous 'spin' that this case is about a family attempting to 'dictate methodology' to a school district, the Sixth Circuit and the ALJ expressly held just the opposite -- that this was a case of the school district impermissibly dictating to the Deal family, and failing and refusing to meaningfully include the Deal family in the IEP process.
"This is the fact pattern that Hamilton County and its counsel have now voted to try to bring before the Supreme Court? Good luck! If Hamilton County does not like being in the 'hole' that it is in now, the hole is likely to get even larger and deeper (and a lot more expensive)if this case were to proceed to the Supreme Court.
"So, the bottom line is that we are prepared to have a meaningful dialogue with the Board and its counsel regarding the possibility of getting closure on this case before it becomes even more of an albatross. However, no one on the Board should proceed under the belief that the Deals or their counsel 'fear' going to the Supreme Court. We have endured five years of protracted litigation without receiving the millions of dollars Hamilton County paid to two different law firms and a half dozen expert witnesses. Somehow, by the grace of God and our determination, we all survived without this kind of support. We already went through all the hard times, and ultimately, we won. Zachary did not win because of some kind of silly technicality. Zachary won because the Sixth Circuit concluded that what Hamilton County had done to Zachary and his family was absolutely intolerable. For those of you who have not actually read the Sixth Circuit decision, it can be accessed by logging onto our informational website, mayerslaw.com."
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