May 27, 2009

Judge Ben - I Knew You When

Special education wears everybody out. But the group that is almost never discussed is the judges who hear most of the due process cases. I’ve watched the toll hearings take on them, watched their change in attitude and philosophy over a period of years. Some are drawn to special education for their own reasons- they have a disabled child, the spouse is on a child study team, the complexity of the law intrigues them, individual political views can be examined, whether conservative, liberal, or middle of the road. Many judges automatically blame parents before they even get the case, believing parents overuse the system, are fundamentally flawed and in denial about the potential of their children. A few are genuinely objective, starting at zero and learning the facts before taking a position. Even fewer are pro parent and do not stay in the system very long. Many talk about the gut wrenching nature of the stories they hear from the bench and refuse to take the assignment from the scheduling judge. During lunch, they break into their cliques as they leave the building. The best gauge of what kind of judge they are is who they choose to eat lunch with.

During the 80s and 90s I was before every OAL judge in New Jersey who heard special education cases. There were three administrative buildings- one in Newark, one in Trenton, and one in Atlantic City. In the beginning the judges traveled to the town of the school district for the hearing, using the municipal court building. Later, all cases were sent to one of the three regions. There was one judge in particular that I admired. He was called the Phi Beta Kappa judge by many of his colleagues, considered to be the intellectual king of the Office of Administrative Law. He was well organized and could summarize an argument in a sentence that flowed like butter. He was thoughtful, quiet and said something to me early on that I measured everything else by over the years- Marilyn, what we seek is the truth. And he meant it. He cared then about fairness and accuracy. His decisions were carefully crafted and the law he applied, even when you lost a case, well reasoned and logical. I think we were about the same age, though he was very clearly a conservative and I very clearly a liberal. Over the years I must have had well over 100 cases before him. While waiting for opposing counsel in his chambers in case after case I learned that he loved William Faulkner. So did I. He always kept his distance and was never too friendly, somehow knowing how to engage without being overly familiar. Faulkner was always a safe topic. His wife was in graduate school and wanted to be a school psychologist. I was in graduate school in a neuroscience program. Sometimes we compared notes about working and going to school and raising families at the same time. He was often upset about the amount of private school tuition because of the tax burden. But he was able to put that view in his pocket when the facts supported residential placement. As people we liked each other. Much of my growth as a litigator was because of his influence and the strict control he had of his courtroom.

Another thing we shared was the loss of a child. The unexpected death of your child changes you forever. Neither of us talked about it but both of us knew the other’s tragedy. After my daughter died, I decided to stop taking cases and devote the rest of my life to teaching, working with families, and research. I don’t know what happened to him, except that the man he became was not the man I knew. Judges seek raises and hope to go up the promotion ladder like anyone else. While he stayed at OAL, the less competent judges around him were nominated and got appointments in state courts. That must have hurt. Gossip from various attorneys alluded to how nasty and sarcastic Judge Ben had become. I couldn’t believe it, not about the man whose only goal was to find the truth.

In 2000 I was asked and agreed to testify as an expert witness in a case about a gifted trombone player with learning disabilities. By then the federal court had already held that I was an expert without peer in my field. My son was a professional trombone player, and I had pioneered Third Circuit decisions on the gifted handicapped. The case went to Judge Ben. At the outset he noted on the record that he was not comfortable in acknowledging that I was an expert in special education or anything else. He said that he had been curious about my work and how it was funded for years and that this was his opportunity to inquire about it on the record. I knew this man. And the person sitting on the bench snarling at me bore no resemblance. The questions went far beyond determining my credibility and expertise. There was no other expert who was trained as both a musician and a special educator. The parents won their case. But an addendum was added to the opinion. Ben said that all of my testimony was to be stricken from the record and the record should reflect that I never testified. He based this on the position that there was nobody else in the case to measure my testimony against. I’ve seen everything over the years. But that was the first time I’d ever seen anything like this. It was as personally directed as a letter.

By 2006 Judge Ben became the scheduling judge at OAL. My last case, Z.R. v. Fort Lee BOE, was conferenced in his chambers. Ben said that OAL’s job was to settle cases and that if parents wanted a decision and punishment of the school district, the federal court was the place to go. He said that OAL was too busy to hear cases, that when he saw I was representing the family he assigned a retiring judge because I always settled my cases. He talked about the “generous” settlement offer the district made, about the unrealistic expectations of the parents, and his firm opinion that the student had “plateaued”. I looked at him as he spoke, almost nothing familiar about this man except how his hands moved and the fixed smile he put on his face when waiting for an answer. He had been podded! The invasion of the body snatchers had scooped up the Judge Ben I admired and replaced him with an empty shell. I asked him if he was interested in finding the truth of the case. No. All he wanted was a settlement. He and the judge that he reassigned to the case took turns attacking and shifting their emphasis on why I must make the parents take the settlement. Opposing counsel watched and openly laughed, having no idea how many years I had known the stranger Judge Ben had become.

As the case wore on, Judge Ben was seen in the halls of OAL, smiling and joking with all around him, looking up and saying Hello to each person who passed. Even to me, the person he had threatened in chambers, his soft spoken voice punctuating consonants like a knife… it was highly unlikely I would win the case and that it must be settled. For the first time in public I refused to smile back and simply glared at him. We’ve ridden in elevators together for over 20 years. The last ride was a silent one, just the two of us. We did not look at each other and he got out first. Later he came into the door of the downstairs deli for lunch. He saw me there and walked out. At least his discomfort with me was honest and he did not pretend to be civil.

The evolution of Judge Ben continues to haunt me. The system broke him, turning him into a dishonest political hack with a permanent public smile. Someplace in him he knows he is being forced to do things he would have never done and is hanging on until retirement. It cannot be too soon.