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The undersigned members of the Consortium for Citizens with Disabilities Education Task Force write to you today to share our strong support for the current provisions in the Individuals with Disabilities Education Act (IDEA) that allow parents of students with disabilities to receive reimbursement for their attorney’s fees when a court or hearing officer determines that their child has been denied a free, appropriate, public education. We urge you to reject any attempts to alter these provisions because they will upset a carefully crafted compromise worked out in 1986 that was designed to enable parents to take legal action with counsel on meritorious cases while protecting school districts against excessive fees.

The Consortium for Citizens with Disabilities is a coalition of approximately 100 national disability organizations working together to advocate for national public policy that ensures the self determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society.

Attorneys’ fees level the playing field for parents. The National Council on Disability, in its January 2000 report reaffirms the reality that parents of children with disabilities are the primary enforcers of IDEA. But to enforce the law, parents need lawyers and that need is only met for some families when some families when they are able to recoup attorneys fees when they prevail in securing their child’s civil right to receive an appropriate education.

Despite claims of increased litigation costs, there is little data to support changes to the attorneys’ fees provisions. Moreover, the data that does exist shows a decline in the number of due process actions. A recent General Accounting Office (GAO) report and a study by the National Association of State Directors of Special Education (NASDSE) indicate that the number of due process hearings that are held has fallen from 3500 in 1995 to 3000 in 2000. There are more than 6 million children in special education today. In other words, in calendar year 2000 there were only 5 due process hearings for every 10,000 students. Moreover, fully 76 percent of those hearings were held in 5 states and the District of Columbia. In 20 states, fewer than 10 hearings were held. In 11 states, between 10 and 20 hearings were held.

Congress made a significant change in 1997 when it required states to offer mediation to families of children in special education and allowed states to choose not to pay fees for such mediation. The GAO as well as the Special Education Expenditure Project found that mediation is being used more often and is less costly than due process. For example, GAO reported that “the Texas State Education Agency (SEA) estimated that over the past decade it had saved about $50 million in attorney fees and related due process hearing expenses by using mediation rather than due process hearings.”

We urge you to reject any cap or other limitation of attorneys’ fees for special education students. Any such cap or limit is unacceptable because it will:

· Defeat the IDEA’s purposes -- to ensure that a free appropriate public education (FAPE) is provided to all children with disabilities and that the rights of those children and their parents are protected

· Encourage school districts to draw out proceedings in order to force parents to abandon their cases (as the legislative history to the current provision shows was done before the current law was enacted)

· Deprive children with disabilities of “protection against discrimination” enjoyed by “other vulnerable groups,[i]

· Reduce the already insufficient pool of lawyers available to represent parents/children in IDEA cases

· Render the statutorily mandated due process guarantees “meaningless for all but the wealthy and well informed.”[ii]

The adverse effects of fee caps or limitations will be harshest for the very children Congress set out to protect when the current provision was enacted. Moreover, a disproportionate number of the children in families that cannot afford lawyers are black, Latino, or from families with limited English proficiency.[iii] Many, if not most, parents still cannot afford to pay an attorney and would not be able to obtain one without the provision of fees in the statute.

We urge you to oppose any legislation that would result in a change in current law with regard to attorney fees under the IDEA. Thank you for considering our views.

[i] Remarks of Senator Weicker, 1986 Cong. Rec. 16823 (July 17, 1986) (“What we do here today is to make the [IDEA] consistent with more than 130 other fee shifting statutes which provide for the award of attorneys’ fees to parties who prevail in court to obtain what is guaranteed to them by law. Without this remedy, many of our civil rights would be hollow pronouncements available only to those who could afford to sue for enforcement of their rights.”)

[ii] Remarks of Senator Simon, 1985 Cong. Rec. 21392 (July 30, 1985).

[iii] Remarks of Senator Kerry, note ii supra(“This conference report represents a victory in protecting the educational rights of all handicapped children regardless of their economic situation.”); Remarks of Senator Hatch, 1986 Cong. Rec. 16825 (July 17, 1986) ( “Without the passage of this carefully crafted document, handicapped children and their parents cannot be fully protected since they have no recourse under current law if their rights are violated.); Remarks of Senator Simon, 1985 Cong. Rec. 21392, July 30, 1985) (After noting the disproportionate number of number of black children classified as mentally retarded Senator Simon said: “For minority group parents, for low income as well as moderate income parents, the right to obtain reimbursement for assistance they may need at the administrative level is critically important to assure fair and equal access to the formal procedures mandated by Congress in Public Law 94-142.).