Wednesday, August 30, 2006


Sometimes being ineffective can be a good thing

There is another angle on Richard Borreca's article (Star-Bulletin, August 29, 2006) on the battle between Sen. Daniel Akaka and Rep. Ed Case over which of them is the more ineffective: Sometimes being ineffective can be a good thing.

While Sen. Akaka struggles to advance the bill that bears his name, Rep. Case did the same with what became known as the "Case Amendment" to H.R. 1350, part of the 2003 reauthorization of the federal Individuals with Disabilities Education Act. If you Google "Case Amendment" (with the quotes) you'll find numerous articles and a video protesting the damage his amendment would have done to his constituents in Hawaii and to parents nationwide.

Case's anti-child amendment would have allowed governor Lingle and other state governors to set fees for attorneys representing parents of special needs children. If a school is not providing an equal education for a child as the law requires, parents have little recourse but to file for a due process hearing. They most often lose unless they have legal representation (the state Department of Education always has access to attorneys).

Hawaii's DOE embraced the Case Amendment as a means to greatly reduce the number of due process cases filed against them which continued even past the end of the Felix Consent Decree.

Parents, advocates and many others saw it differently, of course. In no other civil rights action can the defendant set fees for the plaintiff--and Governor Lingle is often the defendant, along with the DOE, in these suits. Given the power to limit fees, she would most certainly set them at a point which would make it impossible for attorneys to represent parents.

Across the country, parents groups petitioned their congressional delegations to defeat the Case Amendment.

About two dozen parents visited Case in his Honolulu office along with reporters and a video camera. Quoted in a Star-Bulletin article (April 22, 2003) on the meeting, attorney Chris Parsons told Case that "[allowing the governor to set rates would] give the fox the keys to the henhouse" and drive lawyers away from such cases. But Case was implacable.

In the end, he could not push it through. Fortunately, he didn’t have the clout to do it.

Clearly, Rep. Case acted against the parents who are his constituents. His amendment brought him (and Hawaii) tremendous negative publicity across the country.

So being ineffective can be an advantage. Imagine if the Case Amendment had passed.


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