Tom Harkin

Mr. HARKIN

Mr. HARKIN. Mr. President, there is no issue of greater importance to our country than the education of our citizens. The budget before us calls for modest new investments in education over the next 5 years by increasing resources for education and training programs. In addition, the budget provides tax credits and deductions to middle income families to help pay for post-secondary education as outlined in the budget resolution. I fully support those initiatives. However, I believe we can and must do better. Several years ago I read a report by the Committee on Economic Development. This is a group of CEO's from some of our Nation's largest companies and they called on us to fundamentally change how we think about education. They said education is a process that begins at birth and that preparation must begin before birth. They called on the Federal Government to make additional investments in early intervention activities such as Head Start. I believe we should heed their words. The pending amendment makes these investments to ensure the readiness of all children and I want to commend Senator Dodd for his leadership. Last month, at my request, the Labor, Health and Human Services Appropriations Subcommittee held a hearing focusing on the importance of early childhood education. That hearing was on the eve of the White House conference on early learning and the brain which highlighted this most significant issue of the education of our youngest children. Over the past several months we have been reading a great deal about research on the brain and the implications for the education and development of young children. The research provides the scientific evidence which validates what many parents and children's advocates have been saying for years--the greatest potential for learning happens during the first years of a child's life. Therefore, we need to make sure that all children have rich learning experiences during that critical time. The first National Education Goal states that by the year 2000, all children will start school ready to learn. I strongly support all of the goals, but believe that the first goal is essential for achieving the rest of our national goals. Without a strong foundation in the early years, children, particularly children from low-income families, start school behind their peers school and often find it very difficult to catch up. Early intervention also makes good economic sense. Studies tell us that each dollar invested in high quality early childhood education programs such as Head Start saves $7 in future costs by increasing the likelihood that children will be literate and employed rather than dependent on welfare or engaged in criminal activities. However, less than half of the 2.1 million children eligible for Head Start participate. With the additional resources provided by the Dodd amendment, Head Start will be fully funded in 2002. That's a goal that is long overdue. The most perplexing problem for working families is the availability and affordability of high-quality child care. In Iowa, 67 percent of children under the age of 6 have all parents in the labor force. The cost of child care overwhelms the modest budgets of most working families since the care for one young child can cost as much as $4,000 per year. Availability of subsidies for working families are vital to helping many of these families stay off of welfare and the pending amendment provides an additional $7.5 billion over the next 5 years for this purpose. Finally the amendment increases funding for the Healthy Start Program. This initiative provides grants to areas with high rates of infant mortality to decrease the incidence of infant deaths. The additional will help sustain the gains made in those places and help disseminate information on successful interventions for other areas. Mr. President, we must not lose sight of the importance of investments in the education of young children. After all, high quality educational activities during a child's first years often alleviates the need for more expensive interventions later in life. I hope that we will be able to work together to create the infrastructure which truly redefines how we view education--as a process that begins at birth, with preparations beginning before birth. This amendment significantly increases investments for these vital early intervention initiatives and pays for these investments by closing several tax loopholes. I urge my colleagues to support the Dodd amendment and yield the floor.

Mr. HARKIN

Mr. HARKIN. Mr. President, I rise in strong opposition to the Smith amendment which adds limitations on the awarding of attorneys fees to parents of disabled children that are unprecedented in any other fees provision. The provisions in current law relating to attorneys fees were added by our colleague Senator Orrin Hatch. He modeled the IDEA fees provisions on provisions in other civil rights laws. On final passage of these provisions he explained that they reflected a carefully crafted compromise that provides for reasonable attorneys fees to a prevailing parent while at the same time protecting against excessive reimbursement. Let's not upset that carefully crafted compromise. Let's retain the parity between the fees provisions in the IDEA with the fees provisions in other civil rights statutes. It is inappropriate to establish a double standard for parents with disabled children. Listening to Senator Smith, one might get the impression that there is a proliferation of litigation under IDEA. The data does not bear out such an assertion. The number of court cases under IDEA is actually declining from 199 in 1992 to 120 last year. This is out of 5.3 million disabled children. The number of due process hearings in New Hampshire last year was 10. In my State of Iowa, the number was four. In the entire State of California, with almost 600,000 disabled children in the IDEA program, the number of due process hearings was 57--1,289 requests for hearings but the overwhelming majority were resolved in mediation. Let's reject the Smith amendment. Mr. JEFFORDS addressed the Chair.

Mr. HARKIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HARKIN. I thank Senator Jeffords for his leadership and I thank Senator Frist for his eloquent comments. I rise in strong opposition to the amendment proposed by my colleague Senator Gorton. The amendment drives a stake through the heart of the bipartisan, bicameral, fair, and balanced provisions in the bill relating to disciplining children with disabilities. The amendment states plain and simple that local school districts can totally ignore every word of the bill if they so choose. In other words, the amendment effectively repeals every protection in the law for disabled children. Last night, this extreme position was rejected by 420 of my colleagues in the House in favor of the commonsense approach included in the bill. The bill specifies procedures for the immediate removal to an alternative setting of disabled children who bring weapons to school or who knowingly use, possess, or sell illegal drugs. The bill also authorizes: The removal to an alternative setting of truly dangerous children; proper referrals to police and appropriate authorities when disabled children commit crimes, so long as the referrals, do not circumvent the school's responsibilities under IDEA. And, the transfer of student disciplinary records. Under the amendment, local school districts could cease educational services for any disabled child regardless of whether or not the child's behavior was related to his or her disability. Cessation of services is not only opposed by all disability organizations, but is opposed by the major groups representing general education and the police and prosecutors. That is why the bipartisan bill rejects cessation. My colleague raised a number of other points in the course of the debate which I would like to respond to at this point. My colleague constantly refers to IDEA as an unfunded Federal mandate. According to the Congressional Budget Office, the American Law Division of the Congressional Research Service, and the U.S. Supreme Court, IDEA is not an unfunded mandate. IDEA is a civil rights statute that implements the equal protection clause of the U.S. Constitution. IDEA helps States and local school districts pay for the costs of implementing their constitutional obligation to disabled children. My colleague also talks about the high costs of educating disabled children but fails to talk about the savings to society, not to mention the enhanced quality of life for disabled children and their families. Prior to the enactment of IDEA, 70,655 children were in institutions. Because of IDEA, that number is down to 4,001. The average cost of serving a child in a State institution is $82,256 per person. With 66,654 fewer children institutionalized, the savings to States is $5.46 billion per year. Danny Piper from Ankey IA, was born with Down's syndrome. He has an IQ of 39. At birth, his parents were told to institutionalize him because he would be a burden and would not benefit from education. The cost to the taxpayers of Iowa over the course of his life would have been $5 million. His parents said no and instead placed him in early intervention and then in an intergrated program at Ankeny High School where he was a manager of the wrestling team. The cost of special education over his 18 years was $63,000. Was it a good investment? You decide. Today, Danny works, he pays taxes, and he has his own apartment. My colleague also quotes a parent of a nondisabled child who was told by a lawyer that she has no rights when her child's class is disrupted by a disabled child. I say to that parent she better get a new lawyer. They have a right to a class environment that is safe and conducive to learning. That parent has a right to insist that the schools develop positive behavioral approaches and train teachers and provide them with the necessary supports. What they don't have is the right to kick that disabled kid out of the class just as school systems cannot kick out African-American children when a white child or his parents are uncomfortable around African-Americans. Can we have school environments that are safe and conducive to learning without kicking disabled kids out? Yes we can. Just ask Dr. Mike McTaggart of West Middle School in Sioux City, IA. In just 1 year, the number of suspensions of nondisabled children went from 692 to 156 of which 7 were out-of-school suspensions. The number of suspensions of disabled children went from 220 to zero. Attendance has gone from 72 percent to 98.5 percent. Juvenile court referrals went from 267 to 3. His philosophy of discipline for all students is to use discipline as a tool to teach rather than to punish. In closing, let's reject the Gorton amendment and send a message that we can ensure school environments that are safe and conducive to learning without gutting the rights and protections of disabled children.

Mr. HARKIN. Mr. President, I want to take a couple minutes to thank a lot of people because this has been indeed a long journey and a tough journey. It started, as I said, 2 years ago, on May 9, 1995, when Senator Frist had the first hearing on the reauthorization of the bill. And it has taken us 2 long years of working literally, if not every day, every week on this, and lately every day on it for the last several months. So I want to express my heartfelt appreciation to the people who have made it possible to reach this passage of S. 717. There are many people with a deep commitment to improving educational results for disabled children who stayed the course throughout this very long, tough journey. And today we can now point with satisfaction to a well- balanced, bipartisan bill that makes the kinds of improvements we are seeking in reauthorizing IDEA. Twenty-two years ago, as we have all said, with the enactment of Public Law 94-142, Congress took steps to ensure children with disabilities would no longer be excluded from school and would be guaranteed access to a free appropriate public education. Today, we have taken another major step by ensuring that the disabled children will now have the opportunity to enjoy the same expectations in the general curriculum as enjoyed by their nondisabled peers. And that success will be judged by the same high standards applicable to others. So first I would like to thank Judy Heumann, the Assistant Secretary for the Office of Special Education and Rehabilitative Services. Ms. Heumann, who has polio and herself was excluded from school, has successfully overcome diversity and discrimination. She sued the New York City Board of Education for the right to teach from her wheelchair in that city. She won. And she taught. And she has devoted her adult life to advocating for the rights of disabled persons. I think it is especially significant to point out in 1975, Judy worked for Senator Harrison Williams, who was one of the sponsors of Public Law 94-142. In her role with the Department of Education, she and Dr. Tom Hehir, Director of the Office of Special Education Programs, together with Secretary Riley, and their respective staffs crafted a reauthorization bill that has served as the framework and foundation for what we have just passed. So I express my appreciation to Secretary Riley, Ms. Heumann, and Tom Hehir. I want to give special thanks to their respective staffs who continuously provided crucial technical assistance and leadership throughout this entire reauthorization process. I would especially, Mr. President, like to commend our majority leader, Senator Lott, for his deep commitment to ensuring passage of the IDEA reauthorization bill as soon as possible in this legislative session. The majority leader demonstrated the extent of his commitment by arranging for his own chief of staff, David Hoppe, to facilitate the bipartisan, bicameral working group that has worked so hard over the last 10 weeks to develop this final bill. I simply cannot say enough to express my appreciation to Senator Lott's chief of staff, David Hoppe, for his enormous contribution to this reauthorization process. We would not have had a bill today without his involvement. Mr. Hoppe brought to this process a strong sense of integrity, superb negotiating skills, a sense of humor, and a stick-to-itiveness. It was a continuous exercise of all of these attributes in facilitating the working group that resulted in the bill we passed today. As I said, Mr. President, it was 2 years ago this week that Senator Frist, as chairman of the Subcommittee on Disability Policy brought to order the 20th anniversary joint House-Senate informational hearing on IDEA. And following that hearing, Senator Frist worked diligently to secure passage of the bill before the end of the 104th Congress. Well, although it was not possible to fully meet that goal, the groundwork laid by Senator Frist, and his unending devotion to making sure we passed it, was of significant help to the working group this year in crafting again the bill we just passed. It was a pleasure and a privilege for me to work as the ranking minority member on the Disability Policy Subcommittee with Senator Frist in this effort. I want to thank Senator Frist for his tireless leadership and contribution to this bill. Let me pay tribute to a friend of longstanding from House days, and now in the Senate, who now stands across the aisle from me as the chairman of the Committee on Labor and Human Resources, Senator Jeffords of Vermont, for his commitment over a lifetime, for developing quality education for all of our children--for all of our children. Senator Jeffords has always been in the forefront of the fight. I thank him especially for his leadership in supporting passage of this bill. Senator Jeffords' long commitment, not only to education of all kinds, but especially for kids with disabilities, also played a key role in the enactment of 94-142 in 1975. And I thank him publicly for that lifetime of work and dedication. I also especially want to thank Senator Kennedy for the tremendous contribution he made to this. Throughout his tenure with this body, Senator Kennedy has continually provided the leadership we have needed in championing all civil rights issues. He has consistently worked with me to support various laws ensuring the rights of individuals with disabilities. Through Senator Kennedy's diligence, he ensured that stronger enforcement requirements would be added to S. 717 to help ensure that States and local school districts would be in full compliance with IDEA. Let me pay tribute also to Senator Coats and Senator Dodd for their contribution to the successful passage of this bill, and all of my colleagues in the House who worked with us in a very unique arrangement. I say to my friend from Vermont, it was so successful. We had to spin this off from other bills. We pulled together not only bipartisanship here in the Senate, but it was bicameral. And we worked together with the House Republicans and Democrats, jointly, day after day in developing this bill. And I would just mention--hopefully without excluding too many people--Representatives Goodling, of course, and Martinez, Representatives Riggs and Miller, Castle and Scott. So this bill has truly been a bipartisan, bicameral effort. And I am proud to have been a part of that effort. But now let me also thank all of the staff members of the working group. As I said, they were here every day, all week, weekends, late Fridays, Saturdays. I would get phone calls on Saturday night and Sunday afternoons, and they were still working. I hate to admit it, I was home. They were working. But I have to first thank Bobby Silverstein for his leadership on this bill, and going back for many, many years, first when he worked for Congressman Williams in the House and then saw the light and came over to the Senate to work on my staff on the Disability Policy Subcommittee in the mid-1980's. And it was through Bobby Silverstein's lifetime, long and deep commitment to ensuring the rights of people with disabilities that we got through the Americans With Disabilities Act in 1990. And it was through his efforts that we were able to finally pull together all of the working people on this bill and the reauthorization of Individuals With Disabilities Education Act. So to Bobby Silverstein, I thank him for many years of service on this committee and for his service for making this country more fair and just for all people. I thank Tom Irvin of my own staff, on detail from the Department of Education. I thank Pat Morrissey, who took over the leadership on the staff in the subcommittee 2 years ago with Senator Frist. Again, Pat has been a stalwart, always there, always working, no matter what hour, no matter what day. I want to thank Pat again for all of her work in ensuring the passage of this bill. Also, Jim Downing, Senator Jeffords' staff, again, Jim, I thank you again for everything you have done. You have always been there. Thank you to Townsend Lang of Senator Coats' staff, Dave Larsen of Senator Frist's staff, and Kate Powers, Connie Garner, and Danica Petroshius of Senator Kennedy's staff. I also commend the hard work of the House staff, including Sally Lovejoy and Todd Jones of the House committee majority staff, Alex Nock of the House subcommittee minority staff, Theresa Thompson of Representative Scott's staff and Charlie Barone of Representative Miller's staff. Finally, Mr. President, most importantly--most importantly --I want to thank all of the members of the disability community and the general education community who stuck with this process through 2 long years. It was up and it was down, up and down, all the time. We thought we had agreements, then it would fall back. We kept bringing them together, bringing them together. It was a deep commitment by those who understand the need for a balance. I am sympathetic, as I said many times, with teachers who find themselves in a classroom and perhaps they have children there that they do not know how to handle. They are at their wits' end, and principals maybe get to their wits' end. I have a lot of sympathy for them. That is why we have to meet more of our obligations in providing more funds to the States for teacher training and supportive services for those teachers so they can do what is right and proper and meet their obligations. Well, what those who wanted a bill in the education community did and the disability community did over the last couple of years, they said, ``We will forget all the anecdotes. Everyone has a horror story.'' You can always find a horror story someplace no matter which side you are on. If you are on the disability side, you can find horror stories about teachers or principals who did bad things to kids with disabilities. If you are on the education side, you can find horrible things--maybe somebody claimed they had a disability and they did not. But we cannot legislate by anecdote. We cannot legislate by one, two, or three horror stories. We have to do what is right for the entire Nation. We have to cut through the fog and the haze and the one or two stories that keep cropping up. We have to cut through the misconceptions. I do not know how many times I keep hearing this is an unfunded mandate when we all know it is not an unfunded mandate. So we have to keep cutting through, cutting through, all the time. That is what some of the leaders in the general education community and the disability community did for the last couple of years. I thank them, not those who wanted to throw a hand grenade in periodically because they had a horror story, but those who understood that we had to reach a consensus, we had to strike a balance. That is what this bill is. In closing, I hope and believe the bill we passed today, the Individuals With Disabilities Education Act Amendments of 1997, will clearly enhance equal educational opportunities for all children with disabilities as we enter the 21st century. We promised that in 1975. We have met a lot of those promises--not all of them. We have a lot of promises to keep. I thank the Senator for yielding me this time.

Mr. HARKIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HARKIN. Mr. President, I thank Senator Kennedy for his kind remarks, for his leadership in this area. I thank Senator Jeffords and especially Senator Frist, who had the first hearing on this 2 years ago, May 9, 1995. It has been a long process. We have worked with all groups. We worked with all groups, and we have a very balanced, fair, and forward looking bill. To sum it up, Mr. President, what this bill says is that prior to 1974, almost 1 million kids were totally excluded from not receiving education only because they were disabled. Now they are in school, they are learning, they are becoming productive citizens, they are working. They are taxpayers, not tax consumers. They are not in institutions any longer. Are there problems out there? Yes, but we are meeting those problems, and we are a better and stronger country because of what we did 22 years ago. This bill moves us into the 21st century by saying that we are going to strengthen this law and we are going to provide that this country meets its obligations to all of our children, including children with disabilities. Again, this is a bill that reaches out and lifts up everyone in this country. I urge its passage.

Mr. HARKIN. Mr. President, there is a new policy with respect to personnel standards in section 612(a)(15)(c) of the bill that sets forth parameters by which a State may deal with a documented shortage of qualified personnel. In that subparagraph, I want to clarify that the reference ``consistent with state law,'' is intended to be applicable to those State laws governing the profession or discipline. I offer this statement to provide guidance at the U.S. Department of Education to help them in implementing the reauthorization.

Mr. HARKIN

Mr. HARKIN. I think the Senator is correct. That is the bottom line at stake. Are we really going to give the employee--are we going to empower the employee to make those decisions? This bill does not do that. This bill actually just gives more power to the employer. It gives more power to the employer to take away from the employee the benefits they have right now for overtime pay and the benefits they would have from, really, accruing comptime. As I said earlier, again, this is another one of the very bad ideas that periodically come up through the Senate. It sounds good. What's it called? The Family Friendly Workplace Act? Ridiculous. I don't know who thinks up all these titles and these names. Nothing could be farther from the truth. This is a bill--the intent may be good. I do not question the intent or motivation of my friend from Missouri at all. I just think it is going in the wrong direction. There are ways we can improve this bill. We offered these amendments to the committee. Senator Wellstone, Senator Kennedy, and Senator Murray offered amendments to really make this more like what Federal employees have now. The Senator from Missouri is right. Federal employees do have this--with good protection, good comptime. As I point out in my statement, there is a lot of difference between the private sector employer and the public sector. If the Senator from Missouri wants to amend this bill to give private sector employees the same protections as civil service laws give Federal employees, maybe he can make a case for this bill. But that is not the case right now. So you cannot compare Federal employees with employees in the private sector. This is just an example of good intentions gone awry. Good intentions, I think, messed up by other special interest groups that have come in, as Senator Kennedy pointed out. Who is for the bill? As I pointed out, every group representing low-income workers is opposed to this bill. If this was such a good bill, they would be for it. I think that is the proof of what this bill is all about. It is a bad bill. It ought to be defeated. I am sure we will have some amendments, and I am sure the Senate in its wisdom will defeat this bill and put it back in the files where it belongs. I yield the floor.

Mr. HARKIN. I thank the Senator. I should not take more than 15 minutes. Mr. President, listening to my friend from Missouri expound on the wonders and benefits of this bill, once again, reminds me of what I have often said about the U.S. Senate and the 100 Members that comprise this body. There are no bad people in the U.S. Senate. I can honestly say that I like each and every individual here in the Senate. There are no bad people here. There are just a lot of bad ideas. Listening to this explanation of this bill reminds me once again of that truth. The Senator from Missouri is a friend, and he is a good guy, but this happens to be a very bad idea. I think it is terribly mistaken--what this bill would do in the force and effect of this bill. I am going to get into some of those in my remarks, especially on whether or not this really is a paycheck reduction act, because it really is. Of the three options that people have, it actually would reduce their paychecks. Mr. President, as our workplace has changed the number of two-parent families has increased. Workers deserve relief to meet the demands of everyday life. That is why, for example, I support, like a number of people here, the Family and Medical Leave Act to allow workers to take time off to care for newborn children, or ailing relatives, without fear of losing their jobs. Mr. President, millions of Americans have been helped by this landmark law. Now I believe it is time that we expand this profamily protection to provide parents with a little time off from work to attend a parent-teacher conference, or a doctor's appointment for their child. I have worked my entire career in the House and the Senate to try to improve the lives of working families, and that includes comptime. I support giving families more flexibility to balance their work and family lives, and I am hopeful that we can pass such a bill. However, this bill before us, designated S. 4, is truly a wolf in sheep's clothing. It is a sham. This bill offers the appearance of employee choice but it is not the reality. The appearance but not the reality. In the Labor Committee markup of this bill several amendments were offered to improve this bill to provide real choice and protection for workers. All were rejected on party-line votes. I am going to go through some of them. I am deeply concerned that this legislation will actually take families in the wrong direction. It gives the employers more flexibility to get out of their overtime obligations rather than giving employees more flexibility to spend time with their families. It will leave workers with less money, not more flexibility, and should be really titled ``Paycheck Reduction Act.'' A genuine comptime bill must provide employees with choice, protection, and flexibility. It has to be commonsense and profamily, and S. 4 falls short on all of those counts. Supporters claim that S. 4 allows employees to make the choice between overtime pay and comptime, but it doesn't contain the protections that are necessary to ensure that employees have free choice and are free from reprisal. Under this legislation, the employer holds all the cards. The employer chooses what options to provide the flexible work options to, and when the employees can exercise the options. It is also seriously lacking in other important employee protection measures which would ensure flexibility and not a reduction in benefits. S. 4 outlines three flexible work options, the employer--not the employee--gets to pick what flexible options to provide. An employer could either offer comptime in lieu of overtime pay; second, a biweekly work schedule; third, flexible credit hours. Two of these three options would effectively relieve an employer of their overtime obligations, and result in an actual paycheck reduction for the employee. In effect, S. 4 would eliminate the guarantee of pay for overtime work for over 64 million workers. Again, when I think about it, what rational employer would not want to maximize profits and savings with their company? The employer has to answer to the shareholders, to the stockholders. They want to maximize that. I understand that dynamic. But on the other side of that equation there must be provisions to protect the employee so that you can have a balance in those scales. This bill does not provide that kind of balance. All of the help goes to the employer and not to the employee. Again, I understand that employers want to maximize profits. That is their business. They want to ensure that their shareholders get the best return. That is their business. Our business ought to be to ensure that the workers have their rights protected to even out that balance to provide the kind of support for the workers so that this time and their work and their schedules are not totally determined by the employer. That is what this bill does. This bill gives it all to the employer. For example, under the biweekly work schedule, the employer could choose to abandon the 40-hour work week altogether. An employer would not be obligated to pay overtime until an employee works over 80 hours during a 2-week period. So in effect an employee could work 60 hours one week, 20 hours the next week, and receive no overtime pay, or even comptime. Under this scheme an employer could rig it so that overtime hours are never approved and, therefore, the employer has no overtime obligations. That is factual. I challenge anyone to dispute what I just said right there. It is not in the bill. That is what an employer could do. So not only would this result in less income than the employee would receive under current law for working those same hours and no comptime for those who want that time instead of pay but, I submit to you, Mr. President and others, that a 60-hour workweek isn't very family friendly. Under the biweekly schedule it would be extremely difficult for those workers to arrange for child care, or to plan time with their families if their employer could constantly change their work schedule. That is exactly what could happen: 60 hours one week, 20 the next, 50 the next, 30 the next, 60 one week and 20 the next. How could any employee and their family arrange for child care, or to reasonably plan their schedule? That is one of the options under this bill. So we can see that it really is not very family friendly, and it would take away overtime pay and even comptime. Under the flexible credit hours provision, an employer could offer the employee an option to work the extra hours but receive only 1 hour of overtime for each extra hour worked. Under existing law an employee would be paid time and a half for extra hours worked. Even with comptime, the employee would at least receive 1\1/2\ hours of overtime for every extra hour worked. It is hard to believe that any employee would choose this, unless he or she wasn't given any other choice. In addition, under S. 4, the flexible work hour arrangements would not have to be made available to all employees. The employer picks who gets to participate. The employer could legally discriminate against workers who need and who want overtime pay instead of comptime, and there are no remedies available to the employee to protect it. Again, let me repeat that. The employer could legally discriminate against workers who need and want overtime pay instead of comptime, and there are no remedies available to the employee which might prevent this. Instead of having a choice, workers may have it chosen for them, or suffer the consequences. For example, the Senator from Missouri cited parts of the bill which say that the employer could not directly or indirectly intimidate, threaten, coerce, et cetera, or anything like that. OK. But what if the employer did this? He could lawfully stop offering overtime to employees who do not participate in flexible options, or they could give promotions and raises only to those employees who participate. There is nothing in the bill that prohibits that. That sends a strong signal to the employees that they had better participate in what the employer has decided, or they will not get offered overtime, or they don't get the right to promotion, or they don't get the right to raises. There is nothing in this bill that prevents that. So it may be a good deal for the employer but it is a raw deal for the worker who usually receives overtime pay. This fundamental flaw was outlined clearly during the Labor Committee markup. Senator Kennedy offered an amendment that would have expressly made it unlawful for an employer to discriminate in awarding overtime, or in awarding overtime based on an employee's willingness to accept comptime instead of overtime pay. It was defeated on a straight party- line vote. Supporters of S. 4 say it prohibits coercion. The bill does not account for the mild but effective pressure employees feel to accommodate their employer. Hourly workers have little leverage in the workplace and are least likely to challenge the employer when it could mean their job, or loss of a promotion, or raise. The workers who rely most heavily on overtime pay are the most vulnerable employees. Consider the following Department of Labor statistics: One-fourth of workers who depend on overtime earn under $12,000 per year. Sixty-one percent earn $20,000, or less. More than 80 percent of overtime recipients earn less than $28,000 a year. When you are making that kind of money, you can't afford to offend your employer. Supporters of S. 4 often point out that there are remedies when an employer coerces an employee to participate, again a very hollow right. Without more resources for Department of Labor enforcement this is a sham, hollow promise. Employers violate current overtime provisions at an alarming rate. One-third, or 13,687, of the investigations by the Department of Labor in 1996 disclosed overtime violations. The Department ordered over $100 million in back pay for 170,000 workers who were victims of those overtime violations. In addition, there was a backlog of 16,000 unexamined complaints pending at the Department of Labor at the end of 1996. That backlog accounts for about 40 percent of the annual number of complaints. In committee markup, Senator Wellstone offered an amendment that would delay the implementation of this bill until the backlog could be reduced to 10 percent. Again, it was defeated on a party-line vote. You say the employee has a right. They can go to the Department of Labor. They can file a complaint. But look at the odds against you. Look at the odds that you will ever be seen, at the odds that you will ever be compensated if 40 percent of them are still backlogged cases. Plus the fact many of these are low-income workers. They do not know about filing complaints. They don't have an attorney. They are mainly scraping by week to week to take care of their families. If they get in trouble on something like this, they talk about filing a complaint and the employer says, ``You know something. I don't like the way you are performing your job.'' Out the door, fired. They are going to say, ``Boy, I am going to take my time and I am going to file this complaint with the Department of Labor, and I am going to hire me an attorney, and I am going to get what is due me''? No. You know what they are going to do? They are out the door looking for a job. They don't have the time and wherewithal to do that. They are out on the streets. They have some kids to feed, and the rent to pay. So when you say that there are remedies, believe me those are very hollow remedies when you look at these statistics. Again, despite the statistics that demonstrate overtime violations are just the cost of doing business for some industries, S. 4 doesn't make any attempt to exempt such industries from coverage under this bill. For example, even though the Department of Labor has found that half the garment shops in the United States unlawfully pay less than the minimum wage, fail to pay overtime, or use child labor, S. 4 provides this industry a lawful way to get out of their overtime obligations. Think about that. The Department of Labor found that half of the garment shops pay less than the minimum wage, fail to pay overtime, or use child labor. S. 4 would effectively say to this industry you are exempt. This is the way to get out from underneath that. Again, workers in these industries are the most vulnerable to employee coercion, and the least likely to file any complaints. During the committee markup, Senator Wellstone offered an amendment to exclude from coverage workers who would be particularly vulnerable to exploitation should comptime be offered at their worksites. The Wellstone amendment would have excluded employees in the garment industry as well as part-time seasonal and temporary employees, the most vulnerable in our society. Again, the amendment was defeated on a party-line vote. Under this bill the employer has the last word when an employee can use their comptime. The employer could lawfully deny comptime for any reason and the employee has no recourse. Let me repeat that. The employee has no recourse if the employer denies comptime for any reason. This bill, S. 4, provides that an employee who requests the use of comptime off shall be permitted to use the comptime ``within a reasonable period,'' if it ``does not unduly disrupt the operations of the employer.'' But nowhere in the bill are the terms ``reasonable period'' and ``unduly disrupt'' defined. They are not defined. So an employee might give an employer 2 weeks' notice of his or her intent to use comptime to take a child to the doctor and have that request denied on the grounds of insufficient notice or the employer could claim that the time off might unduly disrupt business. There is no definition in the bill of these terms. Employees work hard to earn their comptime. They should be able to use it within a reasonable time unless it substantially interferes with the employer's operations. No one would want to change that. Now, again, Senator Wellstone offered an amendment to ensure that an employee could actually use the earned comptime when he or she needed to, but, again, the amendment was rejected on a straight party-line vote. Supporters claim they want to offer employees more flexibility, but if the employee has little control over when they can use comptime, where, I ask you, is the flexibility? There is none. And as if giving the employer all the flexibility was not enough, S. 4 does not even provide for the protection of an employee's comptime. Accumulated comptime is an earned benefit that is accepted instead of overtime pay. S. 4 does not contain sufficient protection to ensure that workers whose employers go bankrupt will have some claim on their unpaid comptime. Let us be straight about this. Comptime is what an employee chooses in lieu of overtime pay. I think that is pretty well accepted by everyone on both sides of the aisle. But what happens when an employer goes bankrupt? Do you have a claim on that? No. In 1994, 845,300 businesses filed for bankruptcy. The rate of failure in the garment industry was 146 per 10,000 firms, twice the national average. In construction the rate of business failure was 91 per 10,000 firms. So comptime should be treated as unpaid wages during a bankruptcy. In addition, comptime should be calculated as hours worked for the purpose of calculating an employee's entitlement to overtime and certain benefits tied to the number of hours worked. No such protection is found in this bill. No such protection. For example, a worker decides to use 8 hours of banked comptime in order to take a 3-day weekend by taking a Monday off. There is no provision in this bill that would prevent an employer from requiring that employee to work 10 hours Tuesday through Friday without paying overtime because only 40 hours would have been counted as worked. So you bank the comptime. You take a Monday off for a 3-day weekend. Your kid has a day off from school. There is a teacher conference or something like that. Your kid gets a day off from school on Monday. You say we are going to spend some family time this weekend. So I have got my banked comptime. I want to take Monday off. I come back to work on Tuesday and the employer says, OK, you are working 10 hours every day this week and no overtime. No overtime. Why? Because there would only be 40 hours a week. Talk about a disincentive to take comptime. So, again, businesses go bankrupt. You have overtime pay that is due you. You have a claim in that bankruptcy court. But if you have banked comptime, you are out of luck. Well, it ought to provide that if you have banked comptime and it goes bankrupt, you ought to have a claim, just as if you had banked overtime pay due you. Also, there is another interesting little feature about this bill I do not think has been pointed out adequately enough. In many industries, contributions to pensions are made for each hour that the employee works. Overtime hours are considered hours worked for purposes of making contributions to these plans. But under this proposal, workers taking comptime not only will lose overtime pay, but they will suffer a reduction in pension benefits as well. Imagine that. Imagine that. Now we have said, OK, guess what, employee. We are going to make this flexible, as they say in this bill. As I just pointed out, there isn't really much flexibility for the employee. You can now take comptime in lieu of overtime. But what happens if you have a defined benefit plan, a pension benefit plan. Hours worked including overtime hours would mean that you could also make contributions to that benefit plan. Well, if you take comptime, first of all, you lose the overtime pay. You say, OK, that's fine. I am willing to lose the overtime pay for my comptime. OK, fine, but then you suffer a reduction in your pension benefits as well. Another little twist in this bill that makes it harder for employees to take comptime in lieu of overtime pay. Now, again, in markup, Senator Wellstone offered an amendment to count comptime as hours worked for this very purpose of making contributions to their pension programs. Again, it was defeated on a party line vote. Now, my friend from Missouri talked a lot about he just wants for people in the private sector to have what Federal employees have because Federal employees have this comptime, so he wants private sector people to have the same thing. Well, all right, first of all, I do not believe that Federal employees should enjoy more rights than private sector employees. I supported the Congressional Accountability Act when we passed it in the last Congress. However, the public and private sector operate under very different circumstances. For one, Government agencies do not go in and out of business like thinly capitalized enterprises in the private sector often do. So when a public sector employee accrues comptime, they can count on eventually receiving the benefits. But as I just pointed out, in the garment industry or construction, where they have high rates of bankruptcies and failures, you may bank the comptime. They go out of business. You are out of luck. Not so if you work for the Government. You are going to get it. Also, private sector employers are driven by the profit motive. That is as it should be. And as such they are more likely to press their employees to take comptime rather than to pay overtime. Obviously, as I said, what manager does not want, what employer does not want to maximize their profits to make a higher rate of return for their shareholders? That is their business. So, driven by the profit motive, they would want an employee to take comptime rather than overtime pay. In addition, aside from having a higher rate of unionized workplaces compared to the private sector, most public workplace employees are under the protection of civil service laws. That means if they are, in fact, singled out because of the choices they have made on the job, there is a set body of law that provides for both substantive remedies and a meaningful procedure in order to enforce their rights. Civil service laws. For example, in the private sector, an employee can be fired for any reason at the will of the employer. In the public sector, employees can only be fired for good cause. They are entitled to a hearing to determine this. So in the private sector, an employee could be fired for not taking comptime, but not in the public sector--a big difference. Also, Federal employees are entitled by law to paid sick leave, paid vacation, health and retirement benefits. If we could amend this bill to provide private sector employees with all of that, maybe I could support this bill. So I would challenge those on the other side, especially my friend from Missouri, amend the bill, provide the same kind of legal protections to employees in the private sector as employees have in the public sector working for the Federal Government. Maybe you could make a case for this bill. But I daresay they are not going to want to do that. Lastly, I would like to point out that much of the flexibility the supporters of this legislation claim to want to offer is available right now. It is available now under existing law. So one has to wonder that if employers can do these things now but they are not, what is the real motivation, what is really behind their desire to get rid of the 40-hour workweek? Is it really to provide the comptime on the employer's side, or is it a way of saying, hey, this is a way I can improve my bottom line, increase my profit margin, pay a little bit more to the shareholders. We got a real hint of this, Mr. President, at the Employment and Training Subcommittee hearing on February 13 of this year. A representative of the National Federation of Independent Businesses said: Real small businesses. . . our members cannot afford to pay their employees overtime. This (comptime) bill is something they can offer in exchange that gives them a benefit. Gives the employer some benefit. Well, if S. 4 is supposed to be family friendly, employee driven, giving flexibility to the employee as the supporters suggest, why are we looking for ways to give the employer more benefits? But that is what the NFIB representative said, I think in a moment of unguarded candor, if I might so state. So the bottom line is this. When considering altering overtime protections in current law, the rights of employees must be of paramount importance to any proposal affecting their time and compensation. This proposal before us appears to be neither worker friendly nor family friendly, and the result of its enactment would require employees to work longer hours for less pay. Lastly, the Senator from Missouri went on at great lengths to say that the special interests are ganging up to defeat this. Special interests? Let me just read a few of the groups opposed to this bill: the League of Women Voters, American Association of University Women, National Council of Senior Citizens, the NAACP, the National Council of La Raza, the Disability Rights Education and Defense Fund, the Union of American Hebrew Congregations, the Southern Christian Leadership Conference, the National Council of Churches, on and on and on. Special interests? The fact remains, Mr. President, that every group that represents low-income workers is opposed to this bill. Every group that represents low-income workers is opposed to this bill. That is a fact. Special interests? Not at all. Special interests, not opposed to this bill. But those who understand what real life is about and who understand what these low-income workers have to go through, they are opposed to this bill.

Mr. HARKIN. I will yield to the Senator.

Mr. HARKIN

Mr. HARKIN. I would be pleased to enter into a colloquy with my colleague, Senator Boxer.

Mr. HARKIN. Under the legislation, States are authorized to transfer the responsibility for educating juveniles with disabilities convicted as adults and incarcerated in adult prisons from State and local education agencies to other agencies deemed appropriate by the Governor, such as the State Department of Corrections.

Mr. HARKIN. If a State makes such a transfer and if the Secretary finds that the public agency is in noncompliance, the Secretary must limit any withholding action to that agency. Furthermore, any reduction or withholding of payments must be proportionate to the number of disabled children in adult prisons under the supervision of that agency compared to the number served by local school districts. For example, if 1 percent of the disabled students were in adult prisons, the Secretary could only withhold 1 percent of the funds.

Mr. HARKIN. No.

Mr. HARKIN. The Senator is correct that any withholding of Federal funds will be limited to the proportional share attributable to disabled students in adult prisons. Other funds would not be withheld.

Mr. HARKIN. I thank the Senator for raising these important issues.

Mr. HARKIN. No, these laws still apply.

Mr. HARKIN. Public agencies may modify an IEP for bona fide security or compelling penological reasons. For example, the public agency would not be required to develop an IEP for a person convicted as an adult and incarcerated in an adult prison who is serving a life sentence without the possibility of parole or is sentenced to death. This exception applies to those inmates for whom special education will have no rehabilitative function for life after prison. Our aim in assuring that prisoners receive special education is to make them better able to cope after prison, resulting in a safer environment for all of us. This goal does not apply for those who will not return to society. In addition, the provisions requiring participation of students with disabilities in statewide assessments will not apply. Further, the transition services requirements will not apply to students whose eligibility will terminate before their release from prison. Finally, the obligation to make a free appropriate public education available to all disabled children does not apply with respect to children and 18 to 21 to the extent that State law does not require that special education and related services under this part be provided to children with disability, who, in the education placement prior to their incarceration in an adult correction facilities, were not identified as being a student with a disability, or did not have an IEP.

Mr. HARKIN. Thank you, Mr. President. I don't intend to take a long period of time. I wanted to respond to my friend from New Hampshire. Let me, first of all, recap a little history on the provisions in the bill which provide for reasonable attorney's fees--again, keeping in mind you have to prevail in this case. The provision here, what is in the bill, is nothing new. This has been in the bill for a long time. In fact, I did a little bit of research and found out that this first came under S. 415, the Handicapped Children's Protection Act of 1986. And the person who was in charge of this provision was none other than our own Senator Orrin Hatch of Utah. I just thought I would read into the Record, again, what he said at that time on July 17, 1986. He says that the agreement we are now considering is a compromise which I feel accomplishes two major objectives. First, it provides the reward of reasonable attorneys' fees to prevailing parents in Education of Handicapped Act proceedings. Second, it includes the application provisions from some court cases, which he mentioned, which I don't have to go through. In order to protect against excessive reimbursements. Senator Hatch goes on to say, ``Let me again emphasis that the conference agreement developed was a compromise. 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.'' Again, that law now provides that a court may award reasonable attorneys' fees as part of the cost of the parents of a child with a disability who is the prevailing party in a due process proceeding, or court action. In other words, if a parent prevails at an administrative hearing, they are entitled to fees. What fees? Reasonable? They must be based on rates prevailing in the community for that time, and quality of services performed. Unlike other civil rights statutes, no bonus or multiplier may be used to increase the amount of fee awards. No award of fees may be made for services performed subsequent to the time a written statement offer is made to the parents, if, among other things, the relief finally obtained by the parent is not more favorable to the parents than the offer of settlement. I think this is really a critical point. Again, I apologize to the Senator from New Hampshire. I do not know if he covered this or not. Let's say they have a written statement of offer to settle. The parents decide not to do that, and they go on. From that point on, if the final judgment is not more favorable than the written statement offer, they get nothing beyond that point. They go at their own peril. So, again, how can that be unreasonable attorneys' fees? And the court must reduce the amount of the fee award whenever the court finds the following: First, the parent unreasonably protracted the final resolution; Second, the amount of fees unreasonably exceeds the hourly rate prevailing in the community; Third, the time spent on the legal services furnished were excessive considering the failure of the action or proceeding. So this is all in current law--adequate protections to make sure that there are not unreasonable attorney fees in these cases. So really this amendment offered by the Senator from New Hampshire really undermines the rationale for having attorney's fees. Again, let's keep in mind one other very important fact that I think keeps being ignored here when we are talking about IDEA. The Individuals With Disabilities Education Act is a civil rights statute. It talks about civil rights for kids with disabilities. I already went through that earlier today talking about not discriminating on the basis of race, sex, creed, or national origin. Well, the courts have now said disability too. You can't discriminate on that basis. I have here a copy of all of the statutes under which attorneys' fees may be awarded by Federal courts and agencies in other civil rights cases. The Civil Rights Act of 1964; Public Facilities; Equal Opportunities; Fair Housing Act; title 8; Employment Act of 1967; Fair Labor Standards; Voting Rights Act of 1965; the Equal Credit Opportunity Act; the Age Discrimination Act; the Rehab Act of 1973. And all of those we get reasonable attorneys' fees. So now are we going to say, ``But, for the civil rights of kids with disabilities and their parents, no, that is different''? Why don't we carve out the Civil Rights Act of 1964, or public accommodations on the basis of race or color? Why don't we say, ``Well, if you have a civil rights case and it is based on race, you don't get attorneys' fees, if you prevail?'' Why not? The Senator from New Hampshire says we will carve it out for kids with disabilities. Why don't we carve it out on the basis of race? How about religion? What if you got a complaint based upon violations of civil rights based on religion, and you prevail? You say you don't get attorneys' fees? No. We say in the law you get attorneys' fees, if you prevail. Equal employment I mentioned. Title IX dealing with discrimination based upon sex, we say, ``Oh. Well, in this case, however, if you are female, your civil rights have been violated under title IX, and you bring action. No. We are not going to give you attorney's fees.'' Why don't we have those amendments offered around here? It is only the kid with disabilities. It doesn't make any sense at all. So let's keep all of our civil rights laws the same. If your civil right is violated on the basis of race, I submit to you it is no more onerous than if your civil rights is violated based upon disabilities. And we shouldn't discriminate under the Civil Rights Act, and we shouldn't here either. So I oppose the amendment because it undermines the rationale. It subjects the parents of children to a double standard compared to other civil rights bills. We have to keep these things the same. Last, the data doesn't support the assertions that the fee is a result of proliferation of litigation. I looked up New Hampshire. For 1 year--1995-1996--New Hampshire had 10 complaints that went through due process. Do you know how many become court cases? Zero. This is an amendment looking for a problem. There is no problem out there. Vermont has zero. Arkansas has zero. Again, it is just not a big problem out there at all. In my State--I might as well talk about Iowa--we had four due process hearings, and we had three cases go to court. Out of the thousands--this is what is interesting. In California, one of the largest States, we had 1,289 requests for due process hearings. Out of that, 1,114 were disposed in mediation. We had 57 hearing decisions rendered out of 1,289 requests. That is just not much of a problem. That is out of 550,000 students in California receiving special education. Out of 550,000 students, only 57 had a hearing decision rendered. So, again, the number of due process hearings per year averages about one-hundredth of 1 percent of the number of children served. The law specifically provides for reasonable attorney's fees, and I just outlined what that means when Senator Hatch put this in the bill 11 years ago. And, third, we would not--no one here, I would think--would want to discriminate on the basis of civil rights that in one civil rights case you get attorneys' fees but in another civil rights case you don't. No. We don't want any of that around here. For those reasons, while I have every respect for the Senator from New Hampshire--and he is a good friend of mine--this is just a bad idea, quite frankly. And I hope Senators will reject this approach of trying to divide out kids with disabilities and their families away from everybody else under the purview of civil rights laws. Mr. President, I yield the floor.

Mr. HARKIN. Yes. The bill authorizes all the current activities and allows the Secretary to support national clearinghouses.

Mr. HARKIN. The bill allows the Secretary flexibility in the mechanisms used to provide State and local entities the technical assistance they need to improve results for children, youth, infants, and toddlers with disabilities. A Federal resource center is one mechanism the Secretary could use to carry out his responsibilities under this section. treatment of persons with disabilities in adult prisons

Mr. HARKIN. Mr. President I thank Senator Jeffords. First of all, I thank Senator Coats for his recent statement that he just made on the floor. He hit all the right points. He talked about how long this bill had been in the making and the delicate balance that we reached. I thank Senator Coats for his efforts over a long period of time in this area to reach this very delicate balance. I also see my colleague, Senator Frist, on the floor. I want to publicly thank Senator Frist again for his great leadership in this area. I was just looking up today, and it was on May 9, 1995, that Senator Frist held the first hearing on this bill--2 years ago. It has taken us 2 years to get to this point. He has worked day and night on this to try to get it through. Last year we had a lot of problems, and Senator Frist hung in there every step of the way making sure that we got this bill through. It took 2 years. But we no have a well-balanced bill. I want to publicly thank Senator Frist for hanging in there and not giving up. I appreciate that very much. Of course, I thank Senator Jeffords, our leader on the committee, again for leading us in this area. Again, Senator Jeffords was one of the few around here who was there when Public Law 94-142 was passed. He was a leader at that time 22 years ago. He is still here to lead the charge on this landmark legislation. I want to talk for a couple of minutes with regard to some of the things that Senator Gorton brought up. First, Senator Gorton said there are two main objections he had to the bill. The first was that it was an unfunded mandate. This is, of course, not an unfunded mandate at all. No matter how many times someone may say it or how strongly they may say it, this is not an unfunded mandate. The Congressional Budget Office, the American Law Division of the Library of Congress, and the Supreme Court, have all said this does not fall under the unfunded mandate legislation. So it is not an unfunded mandate. It is a civil rights bill, it is a law implementing the equal protection clause of the 14th Amendment to the U.S. Constitution. It is not an unfunded mandate. In other words, Mr. President, let me put it this way. The State of Idaho does not have to provide a free public education to its kids. If the State of Idaho decided to stop that, they can do it. But as long as the State of Idaho decides that they will provide a free public education to all their kids, then the State of Idaho can then not discriminate against kids because they are black or they are brown or they are female or they are disabled. That free education must be available to all kids. The Supreme Court has decided that. So it is a constitutional mandate, not an unfunded mandate. What we have said with IDEA--Public Law 94-142--is, ``Look, we will try to help the States meet that obligation because it will cost some money, and we will help them meet that.'' That is why Senator Gregg moved in this area to get the Federal Government to pick up more of that obligation. We should. But I do not want to go into that anymore. Senator Jeffords responded to that. But this is a civil rights bill. What Senator Gorton's amendment basically says is, if you just read the first words, ``Notwithstanding any other provision of this act,'' each State educational agency, et cetera, can decide for themselves what they want to do. Notwithstanding anything else, they can do whatever they want to do. Would Senator Gorton apply that same reasoning to the Civil Rights Act of 1964--notwithstanding any other provision of the law, if a jurisdiction wants to discriminate against African-Americans, they can do so, they can fashion whatever framework they want? Would Senator Gorton apply that to title IX and say, ``Well, with regard to women, each jurisdiction can decide whatever they want and how it applies to women''? We can do that with the civil rights bill? Of course not. Civil rights applies to all in this country. The second thing he brought up was the cost. He mentioned something about the cost of this in terms of the mandate. There are a lot of ways to look at the cost. But what is the marginal cost of this? We have some figures here. You have to look at the savings. The average per student in America for those in special education the average cost is $6,100. So it costs about 14 percent more marginally to educate a kid with disabilities than a child without disabilities. Well, is it worth it? We have to ask: Is it worth it to spend that 14 percent? Look at it this way. Mr. President, in 1974, before the enactment of this bill, 70,655 children were living in State institutions. By 1994, 20 years later, as a direct result of this bill, that number went to 4,001--less than 6 percent of what it had been 20 years before. What is the cost? What is the savings? The average State institution cost was $82,256 per person in 1994. So, if you take the difference of $66,654 for kids that are not institutionalized but are in school learning, that is a savings to the State of $5.46 billion each and every year. That doesn't include the savings later on in welfare costs. For example, my friend, Danny Piper, who got special education, went to school. We figured up for Danny Piper that the total cost of his special education was $63,000. That is what it cost. Danny Piper today is living on his own in an apartment and takes the bus to work. He is employed. He is a taxpayer. He is not in an institution. But when he was born with Down's syndrome, the doctors told his parents, ``Put him in an institution.'' They refused to do so. Because of IDEA, they got him in school in special education. He did well in high school. Now he is working and making money. The cost to the taxpayers of the State of Iowa to institutionalize Danny Piper would have been $5 million. Do you know what it cost us? $63,000 to get him his education. So you can look at it from the cost, but you have to look at it from the other side--the savings side, not to mention lifestyles, quality of life, and what it means to the Danny Pipers and others not to be institutionalized. Lastly, Senator Gorton talks about the double standard. I am sorry. That is just not so. There is no double standard here at all. I guess what we have to ask is, What do we want at the end of the day? At the end of the day, we want a safe classroom with an environment that is conducive to learning for all students. That is what we are all about. What we want to do is teach children behavior that will lead to that safe, quiet classroom that is conducive to learning. Under IDEA, we want to use discipline as a tool to learn and not just as a punishment and to ensure that each child receives the supportive services necessary to function appropriately in a classroom environment. For example, we have some examples of kids. Here is one. I have hundreds of these examples. Here is one, Nick Evans in Wisconsin. I have a letter here dated January 24, 1997. He was in school. He was fighting. We are told that they did not know what to do with him. We are told by the school that they felt Nick was emotionally disturbed, mentally retarded, and did not belong in the school. They did not know what to do. But they sought an evaluation at the clinic in La Crosse, WI. They met with the child's specialist. He had a superior IQ of over 130. His behavior problem stemmed from tremendous frustration of an unidentified, profound learning disability. Once that was recognized, once he got the supportive services, his behavior problems literally disappeared overnight. Now he is an A, honor roll, student. The kids want to work with him. When he is doing a class work science project, the classmates choose to work with him. This is a kid who the school said, ``Kick him out. Get rid of him. He is disturbing everybody. He is dangerous.'' But he got the supportive services and the proper kind of discipline--the discipline to teach him how to act within that environment. I can go through a lot of them. Here is Molly, who was very abusive to others, hitting and pushing them; teachers wanting the child removed. A speech language pathologist was called in. They commenced a program and found out that she had a communications problem. Within 12 weeks her ability to talk to her peers grew. Her behavior problems faded away. Here is a family of three. The children engaged in fighting, aggressive outbursts, name calling. Frustrated by lack of support by the school system, they moved to a neighboring district where they found the support, and now all three of their kids are honor roll students and doing well. Let me talk about Mike McTaggart of Sioux City, something closer to my home. I visited the school last year. Mike McTaggart is the principal of West Middle School in Sioux City. Listen to this. There are 650 students in the middle school. Student population is 28 percent minority, 32 percent are children with disabilities, and one out of three have IDP. One year prior to Dr. McTaggart coming there and taking over this school, there were 692 suspensions, and of those suspended, 220 were disabled children. The absenteeism rate was 25 percent, and there were 267 referrals to juvenile authorities in 1 year. In 1 year. Dr. McTaggart came in, and 1 year later the number of suspensions of nondisabled children went from 692 to 156. The number of suspensions of disabled children went from 220 to zero. Attendance has gone from 72 percent to 98.5 percent. Juvenile court referrals went from 267 to 3. What happened in that 1 year? We had a principal who came in--who brought a different philosophy, a philosophy of using discipline as a tool to teach rather than to punish, and turned that school around by involving kids and involving their parents. That school is very successful today. But if you had looked at that school before he got there, there was a lot of blame on the kids--blame the kids, blame their parents. They shouldn't be there. They are dangerous. Get them out of there. There were 267 referrals to juvenile authorities--from that to 3 in 1 year--and 220 disabled kids were suspended. It went to zero the next year. I am just saying that is again bringing in someone who understands a different philosophy, that you use discipline as a method of teaching and enabling--not just as a method of punishment. Lastly, the Senator from Washington State kept asking the question. He had a letter that he was reading from a parent in Washington who basically said that I asked my attorney--and I am paraphrasing here. But the letter the Senator read into the Record was, what rights do I have for my child to be free from all this commotion, and dangerous activity in school. And the attorney said, ``You have no rights.'' Well, first of all, I would suggest that parent get a different attorney because you do have rights. That parent has the right to demand of that school a safe and conducive learning environment. They have a right to demand that. They ought to demand it. What they don't have the right to do is to demand that a disabled kid gets kicked out of school. They don't have that right. It would be like this. Let's say, Mr. President, that a caucasian kid came to school and had to sit next to an African-American. They said, ``Well, I don't like that. I don't like this integration.'' I am conjuring up memories of a few years ago. ``Oh, no. Those kids cause all kinds of problems in school. They couldn't be conducive to a learning environment.'' Well, we found out that wasn't so, as long as teachers and principals and parents got together, and in sort of an atmosphere of working together, it was fine; no problems. Let's say that a child went to school, and all of a sudden sitting next to him was a physically disabled child who made them nervous because they didn't look the same, they didn't act the same, they had a physical disability that, well, maybe they weren't like the rest of the kids. Would a parent who said, hey, wait a minute. My kid has to sit there and it's disturbing; it confuses him; it is not a good, conducive atmosphere for him to learn--would that parent have the right to say, kick that disabled kid out of school? No. But what the parent has the right to do is demand of the school that they provide a safe and conducive learning environment. That means at least to this Senator that the school has to develop strategies to make the classroom safe and quiet and conducive to learning. If kids are disturbed by someone who is in the classroom, by their appearance or by their actions, that means you develop a strategy to deal with it and bring the parents in and provide for an atmosphere where kids can learn, not just a knee-jerk reaction and say, well, the easiest course of action is to expel them, kick them out, get rid of them, segregate them, exclude them. We have been down that road before. The whole theory of IDEA, the Individuals With Disabilities Education Act, is to mainstream, is to bring people together, not to segregate people. So I would say to the person who wrote that letter to Senator Gorton, yes, you have that right; go to that school and demand the safe, conducive learning environment. You have that right. But you do not have the right to demand the kid gets kicked out because he or she is disabled. You do not have that right. So I would suggest that perhaps they ought to get a different attorney. I just wanted to make those comments. I did not have the time before. There was one other thing. Again, showing how things can happen if people really do want to make it work, will work together, on January 29 of this year Elizabeth Healy, a member of the Pittsburgh School Board, testified before our committee. She said she thought IDEA was a good law; it is working. She said the Pittsburgh School District has adopted a family centered inclusive approach to provide special education. Because of what they did in Pittsburgh, because of this family centered approach, the number of due process hearings has plummeted. Unlike reports from other urban school districts regarding the due process hearings, last year there was only one due process hearing and one special education mediation in the entire school district in Pittsburgh. I do not know a lot about Pittsburgh, but it is a pretty urban city. One due process hearing, one special education mediation in the entire school district. I might suggest to the Senator from Washington that he might want to take the principal of this school that he keeps talking about with all these problems and maybe send him to Pittsburgh and have him look at what they did there or send him to Sioux City, IA, and we will have him look at what Principal Mike McTaggart did there. And maybe, and I say this in all candor and seriousness, they could pick up some pointers on how to structure the school environment, how to involve the families, so that they will have the same results as Sioux City or the same results as Pittsburgh. So I am saying it is not impossible. It is very possible to have a safe and conducive learning environment and to meet at the same time the requirements of the Individuals With Disabilities Education Act. What it really takes is a commitment by the school boards, teachers and principals, parents and the community to work together in an atmosphere of mutual accommodation and understanding and support. If they do that, there won't be that many problems. Oh, you will always have some problems, but, my gosh, Pittsburgh went down to one due process hearing. That is the kind of goals we ought to be looking for. That is what this bill does. That is what this bill does. I have to tell you, Mr. President, a lot of times my heart goes out to teachers who are in the classroom and they are confronted with situations where they have emotionally disturbed kids, physically disabled kids, mentally disabled kids, and that teacher does not have the proper support and learning and training to know how to deal with it. Teachers need that support. They need that kind of training and that kind of educational support that will help them. That is what we are talking about here. If they do that, IDEA will work, but it will not work if our reaction is, first of all, notwithstanding any other provision of this act, let each school district decide for themselves. That is what the Gorton amendment does. That is not conducive to an inclusionary-type of principle where we are going to bring kids together. We are a much better society today because we have included people with disabilities. We are a stronger society. As President Clinton says so often, as we enter the next century, we cannot leave one person behind, and we certainly should not leave people behind just because they have a physical or mental disability. That is what this bill does. It provides those kids with that support and those opportunities the kind of education that allows kids to dream and allows kids with disabilities to know that they can fulfill their potential. We all have different potentials. Kids with disabilities are no different. They have potential, too, to achieve, to dream, and to do wonderful things. We have seen it happen because of the Individuals With Disabilities Education Act. This bill that we have before us, this reauthorization, as I said, is carefully crafted, very balanced. I think it meets all of the needs of parents and school administrators and, most importantly, meets the needs of the kids themselves not to be segregated out but to be included, to make sure they have the support they need so that they can become fully self-sufficient, productive, loyal American citizens in their adulthood. That is what this bill is all about. Mr. President, are there situations where a school officials must take immmediate action to remove a disabled child from his or her current placement? The answer is yes, and this bill provides for two limited exceptions to the stay put provision under which children with disabilities are entitled to stay in their current placement pending appeals. Under the first exception to the stay put provision, school officials are provided authority to remove a child from his or her current placement into an interim alternative educational setting for the same amount of time they could remove a nondisabled child, but for not more than 45 days, if the child carries a weapon or knowingly possesses, uses, or sells illegal drugs or controlled substances. Under the second exception to the stay put provision, local authorities can secure authority from an impartial hearing officer--in addition to a court--to remove a child from his or her current educational placement into an interim alternative educational setting for up to 45 days if the school officials can demonstrate by substantial evidence--that is, beyond a preponderance of the evidence-- that maintaining the child in the current placement is substantially likely to result in injury to the child or others. Some of my colleagues have raised concerns about allowing impartial hearing officers to make these critical decisions. I support this provision for several reasons. First, this standard codifies the holding in Honig versus Doe. In that case, the burden was clearly placed on the school officials to rebut the presumption in favor of maintaining the child in the current placement. Thus, the case does not deal with perceptions or stereotypes about disabled children but provides authority to remove a child who truly is dangerous. Second, in giving the authority to make these determinations to impartial hearing officers, the proposal not only includes the ``substantial likelihood of injury'' standard, but also specifies that the hearing officer must consider the appropriateness of the child's current placement and whether reasonable efforts have been made by the local school officials to minimize the risk of harm, including the use of supplementary aids and services, and if the child is moved, the hearing officer must determine that the new placement will allow the child to continue to participate in the general curriculum and to meet the goals of the IMP and that the child will receive services that are designed to address the behavior that led to the removal. Third, in placing this additional authority with hearing officers, the bill recognizes the important role already assigned to these individuals in guaranteeing the rights of disabled children. It is because of the importance of this role that the act requires that hearing officers be impartial. This means, for example, that a hearing officer could not be an employee of the child's school district. It is my expectation that the Department will re-examine current policies concerning impartiality in order to ensure that, to the maximum extent feasible, the integrity of these persons, and thus the system, is ensured. It is also my expectation that hearing officers will be provided appropriate training to carry out this new responsibility in an informed and impartial manner and that both SEA's and the Secretary will closely monitor the implementation of this provision. In sum, Mr. President, we do not have to choose between school chaos and denying education to children with disabilities in order to maintain schools that are safe and conducive to learning. If anything, parents with disabled children want schools that are safe and conducive to learning more than other parents because their children are frequently more distractible and more likely to be the brunt of attacks and abuse. Parents who have disabled children are not asking that they be excused from learning responsibility and discipline. What they are asking for is that the approaches used be individually tailored to accomplish the objectives of maintaining a school environment that truly is safe and conducive to learning for all children, including children with disabilities. Mr. President, this bill provides a fair-balanced approach to ensuring school environments that are safe and conducive to learning. I urge my colleagues to support the underlying bill and reject the Gorton amendment. I yield the floor.

Mr. HARKIN

Mr. HARKIN. Mr. President, on April 17, 1997, a momentous occasion took place at the White House when a group of apparel manufacturers, importers, labor officials, and President Clinton announced their actions to reduce the incidence of abusive child labor in the manufacturing of imported articles into the United States. As one who has been working on this issue for many years, I am pleased with the progress that is being made, although I recognize we have a long way to go. Most importantly, we need leaders in the apparel industry who are willing to take that step forward and work to include all manufacturers and importers in this effort to ban abusive and exploitative child labor. In the recent past, many apparel manufacturers have resisted this effort, supposedly in the name of ``free trade,'' but I suspect there was probably another reason. On the other hand, there have been manufacturers and importers, who have stepped forward to courageously take the different course and that is to do everything they can to ensure that their products are not made with exploitative child labor. One such person is Mr. Paul Charron, the chief executive officer of the Liz Claiborne Corp. He has been in the forefront of the fight to ban the use of exploitative child labor in the manufacturing of wearing apparel. Mr. Charron gave remarks at the White House that day, which I found to be most encouraging. His comments, indeed, echo my feelings, and I know the feelings of President Clinton when he said that ensuring human rights is the right thing to do, and it is the smart thing to do. Good working conditions are productive working conditions. He is absolutely right, and I want to applaud Mr. Charron and thank him for his courageous stance and leadership on this issue. I would also like to encourage the participants of the White House Apparel Industry Partnership to take the next step and adopt a labeling system giving consumers the information they need and companies the recognition they deserve. At this point, I submit Mr. Charron's remarks into the Record, and I urge my colleagues and their staffs to review his remarks. The remarks follow: Remarks for the White House Apparel Industry Partnership: Paul R. Charron, April 14, 1997 Thank you, Linda. And thank you, Mr. President, for having the foresight to recognize that companies could work together with labor, human rights and consumer organizations towards the common goal of improving labor conditions around the world. But let's not forget the contributions of this administration, particularly the Department of Labor and former Labor Secretary Robert Reich. I also want to acknowledge the tireless efforts of Maria Echaveste and Gene Sperling. Furthermore, I would like to express my deep appreciation to all those from the industry, labor, human rights, consumer groups who contributed to this effort. And, of course, I would like to thank Roberta Karp, Liz Claiborne's general counsel, who co-chaired the task force. The standards and processes developed by the Apparel Industry Partnership are groundbreaking. Together we have built a framework to more credibly address a serious and complex problem. But the success of the Partnership's framework for improving working conditions depends upon the industry's ability to recruit its peers. We must be realists. We must be problem solvers. And our first challenge is this: persuading our colleagues in the apparel and footwear industries--colleagues who are not represented here today--to join the fight. In short, we have come here not to announce victory, but to proclaim a new challenge. And that is to make this a truly industry-wide effort. There is no other way. The skeptics may ask--why do this? The answer is simple: it's good business. Some in the industry may think the companies standing here are taking an unnecessary risk; they may wonder how we can afford to make this commitment. I would ask them in return--how can we afford not to? Ensuring human rights is the right thing to do, and it is the smart thing to do. Good working conditions are productive working conditions. Let me emphasize that we are faced with a unique opportunity to make further progress, and, again, our goal is to make this into an unprecedented industry-wide effort. This is only the start--the truly great accomplishments are yet to come. Please join us to help this Partnership fulfill its potential. And now, it is my great honor to introduce the President of the United States. Mr. President. . . .

Mr. HARKIN

Mr. HARKIN. I thank my colleague from Missouri. I know he has been on this issue for some time. I remember last year when we were working on the bill, it came to light, after we finished working on the bill at the committee level but before we went to the floor. I was informed by my staff that this amendment was part of the managers' amendment. We just did not get the bill up last year. I know the occupant of the chair was the leader of our subcommittee, and we had the bill ready to go last year. He worked his heart out to get the darned thing through, but for whatever reason it did not happen. I thank the Senator from Missouri for his long-time interest in this area and for working with us. I know sometimes the bills seem to get through exceedingly slow, but we finally got it accomplished, and hopefully it will be through in a couple of days. I also wanted to respond--and this is something I always like to point out when we talk about the high cost of educating kids with disabilities--I know it seems like it is a high cost, but then you have to look at the other side of the ledger. What is happening to these kids later on, what is society spending or saving later on during the lifetime of these young people as they go through school? I have some data here showing in 1974, the year before enactment of the 94-142, there were 70,655 children and youth with disabilities living in State institutions. By 1994, 20 years later, as a result of IDEA, the number had fallen to 4,001, less than 6 percent of what it was 20 years earlier. In 1994, the average State institution cost was $82,256 per person in an institution, with 66,654 fewer children institutionalized than in 1974. Because the States were footing the bill, the savings to the States is $5.46 billion per year that the States do not have to come up with for institutionalized care. The savings do not include the savings in welfare, social services and other costs for people with disabilities who are now able to live independently and be employed and pay taxes as a result of the special education they have received. A young friend of mine, Danny Piper, from Iowa, who I have followed for years, came and testified once before our Disabilities Policy Subcommittee. He is 26 years old, with an IQ of 39. When he was born, his parents were told to institutionalize him. They did not do it. They put him through school with IDEA, and he went through regular high school. He acted in a school play. He was a manager of the football team. To make a long story short, since graduating he has become a taxpayer. He has recently moved into his own apartment. He takes his own bus to work and is paying his own way. We figured out once with his folks what the total cost to taxpayers for his special education over this 18-year period was. He received early intervention, special education. The best they could come up with was a total additional cost of $63,000 for him for special education. The cost to taxpayers if he had been institutionalized would have been $5 million over his lifetime. Again, I know people think, gosh, it costs a lot of money, but we have to think where we were before and how much we were spending before for institutionalization, for a lot of people that did not need to be in institutions. Certainly Danny is one. He is out working and buying color TV's and things like that. I wanted to make that point because I know it is an expense and we have to think of the other side of the ledger. Since I talked about Danny Piper, I ask unanimous consent to have printed in the Record an article recently from the Des Moines Register about Danny entitled ``Shooting for Independence.'' This is the whole story about Danny Piper and what he is doing, including competing in the Special Olympics. It talks about the medals he has received for basketball, track, bowling, and golf, competing in the Special Olympics. It is a story about one young man and what he has been able to accomplish because he got that kind of education.