Wednesday, May 05, 2010
Ed Case and the anti-child Case Amendment
by Larry Geller
Ed Case is unique among the candidates running for election to the 1st Congressional District in Hawaii—he used to hold a seat in Congress and so he has a record that can be examined.
Among Hawaii parents of special needs students, Case was notorious for what became known as the “Case Amendment” to HR1350, 108th Congress (Reauthorization: Individuals with Disabilities Education Act).
This profoundly anti-child amendment was introduced and named for newly-elected U.S. Rep Ed Case.
Action Alerts resounded across the Internet as parents and children’s advocates mobilized to lobby their Congressional representatives to defeat the amendment. In the end, due to widespread protest, it was not included in the final law, but the fight to defeat the amendment was a long one.
What was the Case Amendment?
This anti-child amendment would have allowed governor Lingle and other state governors to set the fees for attorneys representing parents of special needs children.
When parents find that school are not providing their children with an equal education under the law, they have little recourse but to file for a due process hearing, which they most often lose unless they have representation (the DOE always has legal advice). Hawaii's Department of Education embraced the Case Amendment as a means to greatly reduce the number of due process cases filed against them.
Parents, advocates and many others saw Case's action differently, of course. In no other civil rights cases can the defendant set fees for the plaintiff--and Governor Lingle is often the defendant, along with the Department of Education, in these suits. Given the power to limit attorneys fees, she would most certainly set them at a point which would be favorable to the DOE by making it impossible for attorneys to represent parents.
Hawaii was in the midst of the Felix Consent Decree, a decade-plus struggle to regain educational rights for special needs students. The state was not happy with its legal bills, though it also dragged its feet on ending the lawsuit.
Then along came a way to potentially eliminate the legal costs altogether—by allowing the governor to set fees for the children’s attorneys, something unheard of in civil rights cases, even to a point so low that they could not afford to take the cases..
… Under the Case Amendment, [attorneys’] fees would be awarded not by courts but by a potential defendant, the state governor. If the amendment passes, it could discourage attorneys from taking Felix cases. [article reposted in UH Center on Disabilities Studies, 2/20/2004]
Among its [HR1350’s] provisions is the Case amendment, which would base attorneys' fees on rates set by the governor of each state. Currently, a lawyer who successfully represents a disabled child is entitled to recover fees, at prevailing community rates, at the court's discretion.
But attorney Chris Parsons, who represents parents, said that having the governor set rates would "give the fox the keys to the henhouse" and drive lawyers away from such cases.
"In most states, at least you have some division between the governor and the school district," he said. "Here you've got a governor whose budget is directly affected by these cases. You would be letting the person being sued set the rates. How smart is that?" [Star-Bulletin, Parents with autistic kids fear disabilities act changes, 4/22/2003]
... Under the Case Amendment, which was adopted in the Education and the Workforce Committee markup, Governors would be given the authority to establish rates for attorney fees for representing students in IDEA cases. Students and parents are already at a tremendous disadvantage in arguing IDEA disputes. Schools have unlimited legal resources available to them and already aggressively pursue legal challenges against students and parents, most of whom have limited financial resources. [The Council for Disability Rights]
Hawaii’s Board of Education took the unusual step of voting unanimously on a resolution to Hawaii's Congressional delegation objecting to parts of the act including the Case Amendment.
Perhaps in the face of the national outcry, Rep. Case actually voted against HR 1350, which by then contained his amendment. The battle moved to the Senate.
Parents protested. On April 23, 2003, a group of about two dozen parents crashed Case's office along with reporters and a video camera. The video was posted on autismhawaii.org and autismawareness.com, but since the link doesn’t work, I’ve downloaded and re-posted it here. The quality is what was available in 2003, of course.
Why not review the voting records of any candidate who has held elected office? That would help unscramble conflicting claims and campaign promises and help voters decide intelligently who they want to represent them.