February 15, 2008

Them Thar's Hangin' Judges in Delaware

In Delaware there is a three-member panel hearing the due process petition. One is an educator, one is a parent and the Chair is always a lawyer. The problem is that the person designated as the parent member may also be the CEO of a company involved with special education, and the educator a friend or relative of somebody in the school district. The lawyer is from a Delaware firm and in charge of running the hearing and writing the decision. Up until I arrived there, hearings weren’t generally taken too seriously. Hearing Panels were historically proud to say that they refused to look at IDEA, rulings determined by Delaware law. They were untrained in how a legitimate hearing should be conducted, how to handle objections, how to work as a panel, the most basic elements of a due process hearing. But push them a little, and they’d put you in a noose in the blink of an eye and as polite as can be.

Each hearing I had in Delaware is a story unto itself. The Hearing Chair who locked us all in the hearing room for 12 hours with no lunch because he insisted the hearing would be done in one day. He stated he was too important to give these hearings more time than that. The Educator who came to me at the end of the hearing to congratulate me on the win and to remind me that he did private consultations and evaluations and would appreciate referrals. The lovely, sweet little man, dying of cancer, an attorney who led the panel and tried to be as fair as he could in spite of how sick he was while the other two panelists fought and passed notes around and over him. Another Hearing Chair yelled that he was not interested in anything I had to say. The bias against the parents was so overt that by the end of the second hearing the family decided to sue the hearing panel as a group and individually because of violating the requirement for impartiality. This happened two or three different times with different families.

Once I started to represent parents, the State began to provide training for these panel members. Given the tone and shocking attitude of the panels to the parents, I soon began to examine each panelist for bias and potential recusal before the actual hearing started. I think my first motion to recuse came at the second hearing. The panel was in genuine shock- indignant and furious. They denied the motion. But within a month, one of my “deep throat” contacts called to tell me about an emergency meeting called by the Attorney General to address how motions to recuse would be handled by the panels. This was in a formal training session, funded with IDEA money, where my involvement in Delaware was the focus of the training with every panelist who would be assigned at some point to a hearing panel. It turned out that all of these training sessions were tape recorded so that anyone who was sick or could not come could listen to the training tapes. If I was the agenda topic for the training, then how could any parent I represented get an impartial hearing because every panelist would be biased. Even for Delaware I found this hard to believe. I made a FOIA request for a copy of the tapes. When they came, the part of the tape dealing with recusal suddenly went blank. 15 minutes of the tape had been erased! They didn’t even try to cover it up, just 15 minutes of empty tape. There were some squeaks and a few grinding noises but that was it. The presenter was the Chair of the panel where the recusal request had been made. It was my very own Nixonian moment! Yes, when I asked why that part of the tape had been erased, “ it was an inadvertent error in making my copies” and they were so sorry but the master tape had also been erased. I still have the tapes.

Barbara Crowell was the attorney representing Brandywine and who filed the original request to bar me from Delaware based on UPL charges. She was a petite, lady-like person, soft spoken, easily flustered, charming. She represented the school district during all of the first series of Brandywine cases including the ones for Suzanne Coale. During that period a Family Court judge, a Judge Poppitti, recommended Crowell for a judgeship in Family Court. She got that appointment. Meantime, we’d won another hearing against Brandywine, this time for Kevin Coale’s residential placement to help his extreme dyslexia. The district appealed the decision to Family Court. Guess who was assigned to hear the appeal? You guessed it- Judge Poppitti. The Coales could not afford an attorney and represented themselves. Suzanne called me from the courthouse, sobbing and choking with anger. The judge was making fun of her, was working with the new attorney now representing Brandywine (Barbara was now in Family Court with Poppitti.). Poppitti made suggestions to Crowell’s replacement as to how she should respond to Suzanne’s arguments and the contents of the transcripts from the hearing panel.

It is important to understand that both Suzanne and her husband had significant learning disabilities in language, one with auditory processing and the other reading about a second grade level. They did the best they could. I later read the transcripts. Nothing Suzanne said came close to the actual travesty of what happened during that appeal. Of course they lost. By now their son was about 13, a bright boy who loved his guitar and fishing. He so wanted to go to a school that could teach him to read and to write. He became despondent and depressed, the longer the legal process wore on. He refused to return to school in Brandywine. As he awaited the justice he thought the hearing panel gave him, the simple right to read and become part of society, he walked along a road at dusk. He was a thin, wiry kid that the truck did not see. And in his despair he did not see the truck as it hit him head on. He was killed instantly. When his Dad called me, he cried into the phone, “They killed him. The bastards killed my boy!” Though it was the truck that killed the child, it was Crowell and Poppitti who put him on that road. I have called them murderers before and will always believe it, as the sound of that call continues to echo in my memory. But what else should we have expected. Them thar’s hangin’ judges in Delaware. They’ll get a noose and string you up, or put you on the path to righteousness as the truck mows you down. Amen.