Analysis of Zachary Deal v. Hamilton County Department of Education
by Gary Mayerson, Esq.

Using excoriating language such as "appalling," "evasive," "closed mind," "combative," and "untruthful," Administrative Law Judge A. James Andrews has held in a 45-page decision that the Hamilton County (Tennessee) Department of Education (HCDE) repeatedly violated federal law in failing to provide an appropriate education to Zachary Deal, a seven-year-old Chattanooga boy with autism.

Judge Andrews found that in violation of the Individuals With Disabilities Education Act (IDEA), a federal statute which guarantees an individualized educational program to children with disabilities, the HCDE embraced and perpetuated an illegal policy of refusing to consider the very autism intervention--- intensive one-to-one Applied Behavior Analysis (ABA)--- which Zachary needed to make educational progress.

ABA - Lovaas Programs: Long Track Record of Success

The efficacy of the "ABA" intervention for children with autism was first documented and published by Dr. O. Ivar Lovaas, a UCLA professor, in 1987 after decades of research.

Dr. Lovaas' 1987 scientific study, which utilized experimental controls, reported that with approximately three years of intensive, one-to-one ABA, nearly half of young children with autism were able to succeed academically in mainstream educational settings and be considered asymptomatic and "indistinguishable" from their same age, typically developed peers.

The 1987 ABA study also showed measurable, post-treatment IQ gains that advanced many of the children in the study into the range of "normal" intelligence. As reported in the Court's decision, the evidence at the trial showed that current replication efforts largely have been tracking the outcomes reported in the 1987 ABA study.

Surgeon General Report Supports Intensive ABA

In 1999, as Judge Andrews found, the Surgeon General of the United States published a report which endorsed intensive ABA, and which called Dr. Lovaas' 1987 study a "well designed study."

Judge Andrews found that "the Hamilton County Department of Education consistently rejected providing ABA to Zachary or any other student [even though] Hamilton County does not even have a methodology for educating autistic children." Judge Andrews also stated that "Experts on both sides testified that selecting the wrong methodology for an autistic child can mean the difference between an independent adult life and a lifetime of dependency and support."

Zachary Made "Tremendous Progress" in ABA Program

Judge Andrews found that "the Deals made a correct and legally defensible choice when, in the face of the school system's unbending intransigence, they opted to continue [and fund] the successful ABA program Zachary had been receiving."

In his decision, Judge Andrews found that Zachary had made "tremendous progress" as a result of receiving intensive ABA and that "Zachary's greatest gains occurred when he received no services from HCDE". Although the ABA intervention can be costly, Judge Andrews found that ABA "may be cost-effective over time by allowing a higher percentage of autistic children to become normal functioning, productive adults."

School Witnesses: Lack of Credibility

After viewing their demeanor, responsiveness and whether or not they were forthright in their answers as opposed to evasive or combative when testifying, the Court singled out a number of Hamilton County functionaries for pointed criticism.

The Court expressly held that Hamilton County's autism consultant, Ann Kennedy, was not credible, and "showed an appalling lack of knowledge…"

The Court also found a psychologist newly-hired by Hamilton County, Scott Hooper, to be "not credible," stating "Mr. Hooper demonstrated that he would go to any length to testify favorably for HCDE."

Other HCDE functionaries expressly found by the Court to be lacking in credibility include Paula Wiesen, a special education teacher/speech language pathologist who had been Zachary's teacher and speech pathologist in the year prior to the lawsuit, and Jane Dixon, an HCDE exceptional education supervisor who served as the HCDE's main contact with the family.

In his order, Judge Andrews stated that Ms. Dixon testified "that she had never told the Deals that cost was a factor involved in HCDE's decision to deny Lovaas style ABA to Zachary even though the Deals produced a tape recording of a meeting they had with Ms. Dixon in which Ms. Dixon clearly announces that cost is a factor."

School Rebuffed Parents' Requests for Information

The record reflected that contrary to law, the HCDE did not allow Zachary's parents to ask any questions at some meetings that were scheduled to discuss Zachary's educational program.

In one meeting, the HCDE "informed the Deals that the 'powers that be' were not implementing ABA programs." In this connection, an internal HCDE memorandum surfaced during the trial that reflected the HCDE had flagged Zachary's case as "a sensitive case with regards to school program and/or Lovaas" before his parents even requested ABA from HCDE.

School Refused to Provide ESY Services

Judge Andrews also found the HCDE erred in not providing Zachary summer services [ESY] for 1999 and 2000. Judge Andrews stated that "Summer services…are intended to address the child's needs. The concept is even labeled 'extended school year' not 'extended school program'…HCDE is in error when it maintains that the purpose of ESY is to continue an existing IEP and that, if there is no agreed upon IEP, there is nothing to continue.

The purpose of ESY, like the rest of the IDEA and its implementing regulations, is to educate disabled children. The need for and design of an ESY program begins with an assessment of the child's needs, not the level of cooperation between the school system and the child's parents."

27-Day Due Process Hearing: Conflict Between Science & Status Quo

Zachary's hearing, which began in March of 2000 and involved 27 days of testimony from over twenty witnesses and tens of thousands of pages of documentary evidence, took nearly a year to complete. There also were extensive pretrial and post-trial proceedings.

Judge Andrews remarked in his decision that "Neither side left a stone unturned or un-thrown in attacking the efficacy of the educational approach advocated by the other side."

Judge Andrews likened the litigation to being a classic conflict between science and the status quo, stating "Science and innovation have warred with orthodoxy at least since Galileo was forced to recant in the shadow of the rack."

Judge Andrews found, in direct violation to IDEA, that "money" was a prime motivating factor in Hamilton County's refusal to provide Zachary with the ABA intervention.

However, according to previous reports and filings, Hamilton County apparently has already spent in excess of $300,000 in legal fees to litigate against Zachary and his parents. HCDE may now be statutorily liable to pay hundreds of thousands of dollars in statutory attorneys' fees to Zachary's attorneys. This is in addition to the reimbursement and funding relief which the Court ordered for Zachary covering a three-year time frame.

Zachary and his parents, Phillip and Maureen Deal, were represented by Gary S. Mayerson, of New York City and Theodore Kern of Knoxville. The HCDE was represented by Gary D. Lander and the Chattanooga law firm of Chambliss, Bahner & Stophel.

Decision in Word and pdf from Mayerslaw

Decision in pdf from Wrightslaw

Gary Mayerson, Esq.
Mayerson & Associates

Phone: 212-265-7200
Website: http://www.mayerslaw.com