Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005 -- (Senate - March 04, 2005)

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Mr. KYL. Mr. President, I join Senators ALEXANDER and PRYOR in introducing the Federal Consent Decree Fairness Act. This important legislation, by placing reasonable limits on the duration of judicial consent decrees, will help restore democratic control over State and local institutions.

Lawsuits against public schools, welfare agencies, and other State and local government agencies and programs often end in judicial consent decrees. Consent decrees are binding, legal agreements between plaintiffs and institutions specifying how a particular problem will be remedied.

Two years ago, two professors at the New York Law School, Ross Sandler and David Schoenbrod, published an important book about the effect of consent decrees on our society: Democracy by Decree: What Happens When Courts Run Government.'' The professors' book describes how unelected and unaccountable judges and attorneys control many State and local institutions by imposing rigid plans through consent decrees and how these decrees prevent newly elected officials from altering policies in response to the changing wishes of voters. These decrees allow plaintiffs' lawyers and judges to assume the power to make policy and dictate in detail what shall constitute compliance with the decree. They reflect a multitude of motives and often are based on considerations of the moment, yet they can bind public institutions for decades.

While plaintiffs must allege violations of rights when filing their cases, the consent decrees that are produced by the litigation often have little connection with the enforcement of those rights. Instead, the decrees in some cases simply reflect the policy preferences of the controlling group behind the litigation, including the plaintiffs' attorneys and special interest groups.

One example from ``Democracy by Decree'' illustrates the nature of this phenomenon. When Congress enacted the Education for All Handicapped Children Act, it created a Federal right to special education. This new right required that all handicapped children receive ``free appropriate public education.'' After the law's enactment, local school boards had difficulty complying with the new Federal standards. As a result, parents and children's advocates brought many lawsuits in Federal courts, including a New York case that was titled Jose P. v. Ambach.

The Jose P. case ended with a consent decree that dramatically shifted control over public education in New York. It transferred power over special education from the board of education and elected officials to the Federal court. Judge Nickerson, the U.S. District Court Judge assigned to Jose P., selected a ``special master'' and extended to him the enormous power to decide what was ``appropriate to provide the requisite public education to handicapped children in New York City.''

In an affidavit to Judge Nickerson, New York City School Chancellor Macchiarola described how the litigation forced attention to a vast succession of special education and administrative issues, and diverted teachers' attention from the education of children. The special master's orders elevated speed of child placement above all other educational priorities. The mass processing of children with disabilities forced by the order, in turn, directly conflicted with efforts to educate these children. Chancellor Macchiarola wrote:

I believe that however closely the judgment may have approximated the best professional judgment at a particular time, it is a mistake to elevate any set of practices and procedures to the level of an inflexible mandate. Such an approach robs the school system of the flexibility it needs to adapt to changing circumstances, increasing practical experience with alternative approaches to implementation, and a constantly growing understanding of the nature and dimensions of the educational issues we face.

In April 1984, New York City Mayor Ed Koch created the Beattie Commission to review the city's special education programs. Five years after Judge Nickerson issued the Jose P. consent decree, the city's programs had grown to serve 116,000 children at a cost of $850 million, yet it still did not meet the mandates of Jose P. The Beattie Commission found that special education had been transformed into a program for handling any child who for one reason or another performed at less than expected levels or who caused trouble in the classroom. Eighty-nine percent of all referrals for evaluations were either for poor academic performance, bad behavior, or both. The program had begun to function as a quickly expanding and increasingly expensive general education program.

The New York City Board of Education officials who worked under the decree conceded that Jose P. caused a restructuring of special education, but they emphasized that the scope of the judgment and the detailed procedures that it required shifted attention from what was truly best for the children to a focus on numerical compliance with rigid timelines.

In ``Democracy by Decree,'' Sandler and Schoenbrod explain:

The most notable fact after more than twenty years of court supervision is the size of the special education program. For the 1999-2000 school year, out of a school system of 1.1 million children, 168,000 received special education--three times the number when Jose P. was filed. Public school costs for these services reached $2.7 billion, 25% of the entire school budget. The board spends in excess of $26,000 per student in special education, nearly three times more than the resources devoted to students in regular education.

Jose P. failed to produce sound special education because it was premised on a basic misunderstanding of institutional change. The court set about to reform a single program in a vast educational structure--a fool's errand because special education could not be reformed without reforming the entire system. What was needed was to overhaul the system, only part of which was special education. The New York City board of education could not stop the gaming of special education unless it also stopped gaming in other areas such as seniority, union perks, principal rights, custodial authority, and inadequate programs of all kinds, from athletics to grammar. What the court order did was cause the board to focus effort on one area of institutional performance without altering the culture of which it was a part. That, and the very rigidity of the Jose P. decree and the process it required, made it more difficult for new mayors, new chancellors, or new boards of education to improve the entire system.

In their handling of cases such as Jose P., the courts have moved away from enforcing rights and toward a managerial process of overseeing the pursuit of general goals.

The Jose P. order and its process could conceivably continue without end. The court never described what the board must do to terminate supervision. Sandler and Schoenbrod plead that our conclusion should not be to fix blame on the individuals in charge of the case. They are superbly trained, well intentioned, and widely recognized as outstandingly successful judges and lawyers. Nor should that attention be fixed on questioning the worthy objective of special education. Rather, the failure of such competent people in pursuit of such a needed objective should compel attention on whether we should continue to rely so readily on courts to manage the complex institutions of state and local governments.

Senator ALEXANDER's bill is an important step in addressing the structural failures behind cases like Jose P. I look forward to the bill's consideration in the Senate.

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