February 7, 2008

The Dainty Delaware Dagger

My Delaware experience from 1994-2001 has never been discussed in any meaningful way. It is such a pretty place, an historic treasure with dainty little museums and laces in old homes with giant magnolia blossoms bending to the ground in summer. It has enormous wealth in deep, private pockets because of no state taxes. There is great emphasis on being socially proper, particularly if you are a woman. And there is immense poverty, the kind that drives many families into the woods to live in trailers to escape school districts and social agencies. It is a tiny place where literally anybody who is somebody knows each other. The degree of political incest that is normal everywhere is heightened because Delaware is so small. There is in-your-face violence reflected in the names of rivers and beaches, such as Murder-Kill River and Slaughter Beach. It is a curious cultural transition between the North and South. The North is next to Pennsylvania and is similar in manner ways to the values and traditions of the northeast. But by the time you arrive in Lower Delaware you are, in every way, engulfed in the deep south of slavery and discrimination. There is no way one can describe Delaware with one exception- nobody there can spell. I stayed in a hotel in Dover, opposite the capitol, many times. Each time there was a neon convention sign lit up with at least one brilliantly displayed misspelled word.

In late 1993 Anita Morris called me from Hockessin, Delaware. She had completed a due process hearing with an attorney who charged her $83,000 and threw the case. She sought reimbursement for a unilateral placement for her gifted son who had learning disabilities and extreme hyperactivity. This was her sixth and last child, his education doubly important to her because she was a high school dropout. She explained that when she asked her attorney why he had done such an awful job and was unprepared, he admitted that he was under pressure because if he aggressively litigated her case he and his Delaware firm would suffer reprisals from the State. References to “The State” are common in Delaware, often analogous to “The Communist State.” Anita said that it was too late for this son and that she had no more money to fight Delaware. But she wanted to try and prevent what she experienced from happening to other Delaware parents with disabled kids. She said that she met a young mother, Suzanne Coale, who had two sons, both with severe disabilities. Would I meet with Suzanne so that Anita could help her? Would I consider doing a hearing if it turned out to be necessary? There were no attorneys, none, in Delaware who could be trusted in any lawsuit against the State because of the consequences if they won. I said “Yes” to both questions.

Anita, Suzanne and two other families filled the car that pulled up in front of my house on the specified day. The car trunk was full of 9 boxes of school records, the child in question only 10. I’d never met them before so they didn’t know what to expect from me nor I from them. That first meeting lasted 10 hours, with peanut butter sandwiches for lunch and dinner and many pots of coffee. I’d told Anita to bring a tape recorder so they could have a record of our intake and discussion. The other two families took notes and, it turned out, were there in the event I “had time” to listen to their situations. It took hours to tease out exactly what the dispute was because of so much misinformation they’d all received along the way. None of them knew the basics- comprehensive evaluations, IEP development with measurable goals and objectives. By the end of that day it was clear to us all that I was going to be in Delaware a long time. The specific problem was simple. The child had dyslexia with accompanying expressive language disorder. But the school refused to permit phonics in the IEP. That day we scheduled an IEP meeting in Brandywine before they left. After three meetings in the school over a six-week period, Brandywine wouldn’t budge. The Coales filed for due process.

The first day of the Coale hearing in 1994, the Board attorney took the position that I was engaging in the unauthorized practice of law and should be prohibited from representing the parents. She stated that she had filed a complaint with the Delaware Bar and was awaiting a ruling. I was never copied on that letter and checked the state rules before actually agreeing to do the hearing. Their regulations specifically said that those with special knowledge in special education could represent either the parents or a school district. The Board attorney had spoken with those in the Department of Education in New Jersey and “knew my reputation”. The bottom line was that she was afraid she would lose and tried to intimidate the parents and me. It was an extraordinary hearing. My sense was that nobody had ever experienced a strong cross-examination until that day. I asked the child’s classroom teacher to define phonics. She hesitated. She could not define it. I asked her to explain the child’s disability from an instructional perspective. She had no idea what the question meant. The hearing panel kept telling me to hurry up, that my questions took too long. When the young teacher burst into tears because she couldn’t answer questions, I was admonished for being overly hostile! We won the hearing for independent testing and compensatory services. That was the beginning. If I’d lost, if I’d done what the attorneys there did and dumbed down the case, I’d be there today. But that was not an option. Not ever.

Over those Delaware years there were many cases settled simply because the districts knew there would be an aggressive hearing otherwise. Parent training programs were started in all three Delaware counties. The federally funded Parent Information Center there was useless. Anita began to see parents individually so we could keep up with the increasing amounts of cases. A widely diverse group of parents came together because of the single issue of special education and the overwhelming failure of Delaware to provide appropriate services or placement options. I was away from home often a week at a time. Over and over again it was the same issue- children were illiterate. Nobody seemed to care. Discipline problems growing out of frustration and embarrassment got kids suspended or expelled. The fact that families found one person who actually went toe to toe with the school district, the board attorney, and the deputy attorney general made those proverbial floodgates open. I was overwhelmed and the State was beside itself. This is how it began, the backdrop for the decision of Delaware to sue me for the unauthorized practice of law in 1997. With each hearing it got more difficult, the hearing panels increasingly hostile. All of the hearings were open so that people came to listen and observe. That may have been the final straw, to have such incompetence on public display time after time.

I don’t regret it. Not one moment of it because what we did will come around again and many were saved. I was told to be careful because of angering so many people. They decided not to murder me but simply to wound me. The dainty lace cuffs of the judiciary and the Delaware Bar took careful aim with its legislative dagger, cutting into the heart of justice for its special needs children. Justice does not exist in Delaware because it upsets the status quo. I’m fine. But those who remain in Delaware with disabled children are not, continuing to watch fearfully for the State’s dagger to strike them if they’re not nice, nobody, not a soul, willing to help them help themselves.