Jim Jeffords

Mr. JEFFORDS

Mr. JEFFORDS. I ask for the yeas and nays.

Mr. JEFFORDS. Mr. President, first, I thank my colleagues. I understand the difficulties when we are asked to do things that common sense tells us otherwise. I know how hard it is to vote against amendments that are common sense and also express ourselves on how we feel about some of the problems we have had with the special education legislation. I deeply appreciate the vote on the last amendment to move this bill forward. As my colleagues know, we are now on the House bill which passed with only three dissenting votes yesterday. I hope the Senate will do likewise. I yield 30 seconds to the Senator from Washington.

Mr. JEFFORDS. Mr. President, I ask unanimous consent S. 717 be returned to the calendar.

Mr. JEFFORDS. Will the Senator yield?

Mr. JEFFORDS. I yield 2 minutes to the Senator from Iowa.

Mr. JEFFORDS. I yield to Senator Kennedy.

Mr. JEFFORDS. I want to thank you for what you have just done. You have provided a way for clear passage of this bill today. But most of all, I want to commend you for your continuous efforts to try to fully fund the 40 percent that we promised the people when this bill was passed some 22 years ago. I also want to remind Members that your amendment--I think it was on the goals 2000 bill--passed 93 to 0, where we said we would do what Judd Gregg wants. So I am hopeful that will be kept in mind as the people go forward with the budget. I certainly am going to do all I can to make sure that we live up to the obligations of our own party's promise, which is in S. 1, to do what the Senator from New Hampshire believes we should do.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, for the information of all Members, today the Senate will resume the IDEA bill under the agreement reached last evening. Following closing remarks on the IDEA amendments, the Senate will begin a series of three rollcall votes, beginning at approximately 9:45 or 9:50 a.m. Senators should be prepared to be on the floor for these stacked votes beginning at 9:45 a.m. Following the disposition of S. 717, there will be a short period of morning business after which the Senate will begin consideration of the partial-birth-abortion ban. The Senate may also consider the CFE treaty during today's session of the Senate. As always, Senators will be notified as to when any additional votes are scheduled. I thank my colleagues for their attention.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, I now will be going forward with the bill. There will be two amendments to be offered, one by Senator Gorton and the other by Senator Smith of New Hampshire. They have agreed to a time limitation. I do not know whether it has been shared with the minority or not. Under the agreement, there would be 2 hours equally divided between Senator Gorton and myself, which I will share with Senator Harkin. I ask unanimous consent that with respect to the amendment offered by Senator Gorton, there be 2 hours for debate equally divided between Senator Gorton and myself, and I will share with Senator Harkin.

Mr. JEFFORDS. I do agree.

Mr. JEFFORDS. Right now I would just like to say a couple of things. I think it is very clear that both of these amendments are not necessary--in fact, would create problems rather than solve them, and that what we have is a bill which, if we are able to pass, will save money. That has not been mentioned, but the estimates are it will save up to $4 billion a year in reduced litigation and all of the other problems that are inherent in the process as well as the fact that both amendments are trying to solve problems that are no longer there. In fact, the Gorton amendment will create a monstrous problem and solve none.

Mr. JEFFORDS. Mr. President, I yield as much time as the Senator from Iowa desires.

Mr. JEFFORDS. Mr. President, I rise in opposition to the Smith amendment. I will not go into all I have said before about why that is necessary. But the House today has completed debate of a version which is identical to the bill before us, and any amendment to it would require us to go to conference. The delay would give time for those who are opposed to the bill to try to scuttle it, as they did last year successfully. I want to point out several things with respect to the Senator's amendment. First, it is not necessary. Under the bill as written, there is no award for legal fees without the courts saying there should be; it's purely discretionary. The courts, with their discretion, can take into account the effect of the award on the school districts, or whomever else. So there is that ability to try to reduce the awards. It is in there now. The amendment is also not necessary, because mediation is working. Due to changes in the approaches that have been taken, the cost of litigation and the number of court suits that have been brought as a result of appeals has gone way, way, way down. So we are talking about something that used to be a problem but is not a problem anymore. As I pointed out before in addressing Senator Gorton's amendment, I think he is talking about the State of Washington of old, not the State of Washington of the present. In fact, given the dramatic success with voluntary mediation in Washington State and given the success and cost- benefit advantage associated with voluntary mediation of 38 other States, the bill requires all States to offer voluntary mediation. So the bill is going to try to help replicate what happened in Washington, which has decreased the number of appeals so substantially--a 96-percent decline in due process hearings held between 1993 and 1996. It is a problem of old. We can forget about it. As far as the comments about waving the gun and there being no remedy, that is not accurate. If a child's behavior is not connected to a disability, then he or she is treated like any other child except that there can be no cessation of services. So that certainly takes care of that. If the behavior is related to the disability, the child can usually be removed for not more than the amount of time that the school system would remove a child without disabilities but for not more than 45 days. If at the end of 45 days the school personnel propose to change the child's placement and the parents disagree with the proposal, the child must return to the placement prior to the interim placement except if the school personnel maintain that it is dangerous to do so and make a demonstration to the hearing officer that this is so. And that could go on until there is no risk. The best way to help the communities is to vote for this bill. It is important to understand that, if we increase IDEA funding--and that is the effort this body and its Republican Members are putting their full weight behind--all that increased funding will not go to States. Rather, it will flow to the local governments. So, if you want to help local governments take care of problems--and sometimes there are problems--this money going directly to them will assist them more than anything else. The States can't pick any of it off. It goes right to the local government. So I just emphasize that, in my mind, we have taken care of the problems. We are, again, in the position of considering an amendment which could be seriously disruptive. If adopted, it will have no impact on solving real problems, but it would raise the possibility of killing the bill. Let me give you an idea about the lawyer's fees and the history of that and let you know exactly what has to occur before you can get an award. There was a case called Smith versus Robinson in 1984. This was a case that came to the U.S. Supreme Court. They went through it and found out that, actually, there was no ability to award attorney's fees. So we went into the 1986 session and said there ought to be an award for some under certain circumstances, but we should make sure that it is not in any way automatic and is purely at the discretion of the court. Let me read some of the phrases: In any action or proceeding brought by IDEA, or the parent or child with disability against the school, the court may award reasonable attorney's fees. ``May.'' That is discretionary. They could take into consideration everything Senator Smith wants them to. There is no limit on the discretion. Also: Attorney's fees may not be awarded and related costs may not be reimbursed in any action or proceeding for services performed subsequent to the time of a written offer of settlement to a parent, and if they had a good deal and didn't accept it, they don't get attorney's fees. Attorney's fees may not be awarded related to any meeting of the IEP team unless such meeting is convened as a result of administrative proceeding or judicial action or at the discretion of the State or a mediation is conducted prior to the filing of the complaint. I can go through more. I think you get the drift. It is very hard to get attorney's fees. Therefore, that is really not the problem. Plus the mediation process has reduced almost to zero the number of court appeals--only a hundred all last year. I think we are talking about solving a nonproblem and creating a huge problem with respect to the possibility that this bill might be, as happened last year, scuttled at the last minute. I retain the remainder of my time and yield the floor.

Mr. JEFFORDS. Mr. President, we are coming to the end of the discussion on this amendment. It is my intention to have it set aside. I would like to point out that this is not just Jim Jeffords versus the cities and towns of America, as Senator Gorton stated. He indicated that the teachers wouldn't like it, but actually, this bill is backed by the National Parent Network on Disabilities, the AFT, and the NEA. It also has the support of the American Association of School Administrators, the National Association of Developmental Disabilities, the Council of Great City Schools, the National Association of Elementary School Principals, and 32 other organizations representing millions of people. I urge everyone to vote against the Gorton amendment. I yield back the remainder of my time and I ask unanimous consent that the Gorton amendment be set aside temporarily.

Mr. JEFFORDS. Mr. President, I compliment my good friend from Iowa, who, along with me, came in about the time that this special education legislation was enacted back in 1975, and we have worked closely together on matters of disabilities ever since that time. It is a pleasure to work with the Senator. I think we have had pretty successful adventures along this line.

Mr. JEFFORDS. Mr. President, I yield 10 minutes to the distinguished Senator from Iowa, a leader in this area.

Mr. JEFFORDS. Mr. President, let me discuss the bill and what it does to take care of these situations. Senate bill 717 provides one set of rules with discretion for school districts and protection for children. The Gorton amendment, if passed, will kill the bipartisan, bicameral consensus that this measure enjoys. We simply cannot destroy all the work that has gone on throughout this country in bringing us the bill we have today--we all remember what happened last year when we thought we had a consensus. Issues similar to those raised by the Senator from Washington came up, and the whole thing fell apart. We cannot let that happen again. If the Gorton amendment were to pass, school districts would get no relief. All the major educational organizations support S. 717, and they would all oppose this amendment. Let me lay out a rationale of how we approach the sensitive issue of handling the discipline problems. Educators and parents need, deserve, and--in fact--have asked for the codification of major Federal policy governing how and when a child with a disability may be disciplined by removal from his or her current educational placement. The bill takes a balanced approach to discipline. It recognizes the need to maintain safe schools and the same need to preserve the civil rights of children with disabilities. This bill brings together, for the first time, in the statute the rules that apply to children with disabilities who are subject to disciplinary action and clarifies for school personnel, parents, and others how school disciplinary rules and the obligation to provide a free, appropriate education fit together. The bill provides specificity about important issues such as whether educational services can cease for a disabled child--they cannot--how manifestation determinations are made, what happens to a child with disabilities during the parent appeals, and how to treat children not previously identified as disabled. We have gone through all that and we worked hard all across the country. We have a consensus on this very difficult issue, one that has been the most contentious for several years. We now have an agreement on how to handle it. When a child with a disability violates school rules or codes of conduct through possession of weapons, drugs, or demonstration of behavior that is substantially likely to result in injury to the child or others in the school, the bill provides clear and simple guidance about educators' areas of discretion, the parents' role, and the procedural protections for the child. The Gorton amendment would say to a town or a school district that they could throw all this out and put its own in. Dangerous children can be removed from their current educational placement. Specific standards must be met to sustain any removal. If a behavior that is subject to school discipline is not a manifestation of the child's disability, the child may be disciplined the same as children without disabilities. So, that group which has been troublesome certainly is treated just like any other child. If parents disagree with the removal of their child from his or her current educational placement, they can request an expedited due process hearing. If educators believe that the removal of a child from his or her educational placement must be extended, they can ask for an extension in an expedited due process hearing. So there is a process to make sure that no child who is dangerous is forced on the other children in the classroom. The bill allows school personnel to move a child with disabilities to an interim, alternative educational setting for up to 45 days if that student has brought a weapon to school or a school function or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function. The bill gives school personnel the option of requesting that a hearing officer move a child with a disability to an interim, alternative educational setting for up to 45 days if the child is substantially likely to injure themselves or others in their current placement. I commend the Senator from Washington. He worked so hard last year to make us aware of the need to change this. We took into consideration his advice and counsel. We came up with a version which everybody in the country has agreed to. Why does he now want to supersede it and say, ``Do away with that, let the communities decide what they want to do themselves''? Including the regular education teacher in an IEP meeting should help to reassure that children with disabilities get appropriate accommodations and support in regular educational classrooms, decreasing the likelihood for a need for discipline. Under no circumstances can educational services to a child with a disability cease. If a local educational agency has a policy which prevents it from continuing services when a child is given a long-term suspension or is expelled, the State must assume the obligation to provide educational services to the child with a disability. The disabled child is protected, also. The discipline records of the child with the disabilities will be transferred when the child changes schools to the same extent that the records of a non disabled child transfer. That is another thing, which I think was also at the suggestion of the Senator from Washington last year, that you ought to be able to provide that record with the child so the school district that receives a child has warning that there may be problems. Prior discipline records will be provided to officials making decisions about a current violation by a child with a disability. We have gone out of our way to accommodate the suggestions of the Senator from Washington which he made last year. I think he helped us craft a very excellent bill. Why does he now want to throw it all away and say, ``Yes, notwithstanding that we took care of all these problems, we will let the communities decide how they want to do it''? This would create chaos, and, therefore, I have to very strongly oppose the amendment of the Senator from Washington. Mr. President, I yield such time as he may consume to the Senator from Indiana.

Mr. JEFFORDS. Mr. President, I rise in strong opposition to the amendment of the Senator from the State of Washington. I can understand his particular concern, given that the State of Washington at one time had the highest percentage of due process hearings that resulted in court cases of any State in the country. I would note that the State has taken dramatic action in the last couple of years which has greatly reduced the amount of litigation. But first of all, let me talk about the word ``mandate,'' as it is used not only the Senator from Washington but also by many others. The indication is that IDEA somehow is a Federal mandate. Back in the early seventies, there were many court cases and some 26 States were told that they must provide an appropriate education for children with disabilities. In order to provide national uniformity, a national consent decree was developed. The decree provided that, if a State provides for a free education, then it must provide it for everyone and, with respect to students with disabilities, it must provide a free and appropriate education. Part of the definition of ``appropriateness'' were the words ``shall contain mainstream provisions,'' or words to that effect. It is not just an issue of court cases in those States. This is a constitutional matter--a matter of equal protection. Congress responded by developing a bill that provided uniformity and attempted to provide information, guidelines, and rules for the States as to how to provide an appropriate education consistent with mainstreaming. It is amazing that, since that bill was written in 1975, there have been no amendments to it other than the 1986 amendments which dealt with other matters, such as early intervention as well as attorney's fees. I hope that sets the background with respect to where we are today. Now let me talk about the cost of this education. Yes, it is costly. It costs right around $35 billion a year, of which the Federal Government provides only a relatively small amount, some 7 percent to 8 percent. The Gregg amendment, which has already been offered, attempts to rectify our failure to provide the 40 percent we promised back in 1975, but that is another issue. The Republican education bill, S. 1, delineates a path toward living up to our promise to finance 40 percent of the cost of this education. I hope we do carry out that plan. At the same time, I do not believe we should add any amendments on that issue at this time. What will the Gorton amendment do? If you talk about lawsuits, if you talk about lawyer's fees, it is a bonanza. This proposal may take care of some of the less than fully employed lawyers around the country. We have 16,000 school districts and, under this amendment, we would have 16,000 sets of rules. It will take us a long time to figure out what that means--which ones do you use and where do you go? Senate bill 717 sets specific rules for everybody across the country, so every State has uniformity. Therefore, I think contrary to the desire of the Senator from Washington, his amendment will exacerbate the problem rather than solve it. Also, I would like to point out, as to the total cost, you have to consider that it is a constitutional mandate, so it is a necessary cost. It is not something which was added in order to try and benefit some people. This is a constitutional mandate. If you measure those costs and you compare them with the savings that have occurred by virtue of providing this education, then you will come up with a totally different picture. All of us have observed in our States what has happened. Almost all the institutions which used to house children with disabilities, children who were not able to function in our society, have been closed in Vermont. Even those children who have a particularly difficult time, those who are less educable, are in private foster homes. Millions and millions of dollars have been saved in our State by that alone. Second, there is the issue of the quality of life of individuals who are able to participate in a school system and are able to have functional lives and be employed. There is story after story after story of young people who have come through the system and become an important part of society--employed and paying their own way. To say that the cost is so high, this amendment will do nothing but increase the cost. As I indicated earlier, I understand the concern of the Senator from Washington. In 1993, the State of Washington had 72 hearings, 26 of which resulted in court cases. The State of California, on the other hand, had 849 hearings requested--only 10 of which resulted in court cases. The State of Washington recognized that they had to make some changes, and they did. They implemented a process of getting people together to talk these things over and find a resolution, and the figures have changed abruptly. They now have a lot of mediation proceedings and few, if any, court cases. In 1995 and 1996, there were 137 mediations in the State of Washington, with 6 pending at the end of the year. Just about all of the cases were settled. During that same period, only three hearings were held. In view of these improvements, I urge the Senator from Washington to withdraw his amendment. I hope we can take a look at what could happen. If this amendment passes, it would destroy a system which has apparently been working very well and would put us in a position where we would be back to court in about every case. I hope that the Senator will end this instead of creating a problem which would destroy all of the efforts that the State of Washington has made in the last few years to get rid of the problems they had. Mr. President, I ask unanimous consent that the facts contained in ``Mediation Due Process Procedures in Special Education Analysis of State Policies'' be printed in the Record.

Mr. JEFFORDS. Mr. President, I yield the floor. Amendment No. 243 (Purpose: To permit State educational agencies and local educational agencies to establish uniform disciplinary policies) Mr. GORTON addressed the Chair.

Mr. JEFFORDS. And I add to that unanimous consent that no second- degree amendments shall be considered in order.

Mr. JEFFORDS. Mr. President, this amendment is purely to make some technical corrections in some misspelled words and a little bad grammar, which we would hardly like to have on an education bill. This was passed by the House this morning and is made part of the House bill. I know of no problems with it from either side and ask unanimous consent that it be considered as adopted.

Mr. JEFFORDS. Mr. President, I make a point of order that a quorum is not present.

Mr. JEFFORDS. Mr. President, I call for the regular order with respect to S. 717.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, I would like to take this opportunity to once again thank everyone who has worked so hard to bring S. 4, the Family Friendly Workplace Act, to the floor. In particular, I would like to recognize the efforts and hard work of Senator Mike DeWine, the chairman of the Subcommittee on Employment and Training, and Senator John Ashcroft, the author and original sponsor of the bill. I am especially gratified to be working with Senators Ashcroft and DeWine on this important bill. We are here today because we share the belief that S. 4 could make a world of difference in the lives of millions of Americans. During the markup of S. 4, a number of issues were brought to the committee's attention by my esteemed colleagues in the minority. At that time, Senator DeWine and I committed to look into several of the issues that were raised and to resolve them to the extent practicable. In the days following the markup, I have worked closely with Senator DeWine and other Members to address these issues. I am extremely pleased with the results of this process. I believe that the changes proposed in the committee amendment will result in an even stronger piece of legislation. The Senator from Ohio will discuss the changes that have been made in the committee substitute to S. 4, the Family Friendly Workplace Act. After spending a great deal of time working with the language of this bill and the committee amendment, I am more convinced than ever that S. 4 will assist American workers to balance work and family, and I urge all of my colleagues to join me in supporting the Family Friendly Workplace Act. Mr. President, I yield the floor.

Mr. JEFFORDS. On behalf of the committee, I modify the committee amendment as follows, and I send the modified committee amendment to the desk.