THE BIPARTISAN DUO of Republican Sen. Kay Bailey Hutchison of Texas and Democrat Richard J. Durbin of Illinois rode to the rescue of the D.C. Board of Education and School Superintendent Paul L. Vance recently when they amended the omnibus spending bill to put a $4,000 cap on attorney fees in special education lawsuits filed against D.C. public schools. The unanimously adopted amendment also bars payments to lawyers who have a financial interest in related special education businesses. (The omnibus spending bill, approved 69 to 29, now goes to a conference.) If this sounds familiar, it should. The Senate adopted a similar fee-cap provision in 2001, but it was killed in conference. The ultimate fate of this year's amendment is anyone's guess. The Hutchison-Durbin amendment provides financial relief for the school system. But will the measure hurt children?
The cost to the school system of attorney fees from special-education-related administrative hearings is enormous. When the cap that Congress imposed in 1999 was removed in fiscal 2001, fees skyrocketed from $4 million in fiscal 2001 to $14 million in fiscal 2002, according to Ms. Hutchison. The General Accounting Office reports that had it not been for the 1999-2001 fee cap, the District would have paid $27.4 million instead of the $10 million it actually paid. The removal of the cap also appeared to be an incentive for attorneys to demand more administrative hearings. The number of special-education-related administrative hearings increased from approximately 190 per month in fiscal 2001 to 230 per month in fiscal 2002. The current rate of special education hearings puts the District in the national forefront. According to Ms. Hutchison, the District accounts for 40 percent of all special education due process hearing requests in the country under the Individuals With Disabilities Education Act. How can that be?
Cap opponents argue that caps prevent children with disabilities from getting what the law requires because they limit families' ability to hire effective advocates when the school system breaks the law. Opponents also note that the school system pays attorney fees only if it loses, and that the system loses if it's wrong in the first place. But is the litigation primarily concerned with gaining access to good special education programs? The school system maintains that only 15 percent of the hearing requests concern issues related to education. The overwhelming majority, school leaders say, involve procedural and implementation issues, which could and should be handled outside the hearing process. Thus, school leaders maintain, the winners under a no-fee-cap system are lawyers, not students who could benefit from having more education dollars directed to their classrooms or their transportation needs.
Our one regret is that this issue is being played out on Capitol Hill instead of in the District government. City leaders, not members of Congress, are responsible for providing a high-quality education for all students in the District. Instead, the city has punted its special education problem to the House and the Senate, two institutions poorly equipped to care for the District's children.