Monday, July 16, 2007

QUESTION TO DISTRICT 203: “HAVE YOU NO SHAME?” (or Doin’ the Courthouse Tango)


Killian Hynes is a six-year old boy with autism. I’ve had the pleasure of meeting Killian, and he’s like a lot of our kids. There’s a lot going on inside of him that he has trouble getting out. For the most part, Killian is what some describe as “nonverbal.” Killian was the victim of a recent extortion attempt. The perpetrator was the school district that is supposed to serve his best interests.

The story of Killian’s educational progress ⎯ including the battles between his parents and the school district ⎯ mirrors the experience of many of us: that odd twilight zone where good people are trapped trying to implement a crappy plan imposed from above.

The school district in this case is District 203 in Naperville, Illinois. Killian’s school placement for the past year was at the Summit School Early Learning Center in Elgin. The latest dispute in the ongoing war (the same war most of us know all too well) involved summer placement. Summit was the right place at the right time, but Killian had progressed far enough that a change was in order lest Killian’s progress stagnate.

Killian’s parents, Kevin and Beth Hynes, found another program that would provide their son with what he needed. Perhaps being a little tired of the constant battles over doing the right thing, Kevin and Beth made an offer they didn’t have to; they offered to pay the difference between what the new program would cost and what the district would pay to send Killian to Summit pursuant to the Individuals with Disabilities Education Act (IDEA). Although members of the IEP team agreed with Kevin and Beth, the district did not.

Why did the district reject that proposal? Did they not want to fill out a new set of paperwork? Or was it just a matter of flexing its bureaucratic muscle? Did it have anything to do with Kevin’s efforts to educate other parents about their rights in dealing with school districts? Whatever the reason may have been, District 203 refused the change in placement, provoking the Hynes’ request for a Due Process hearing.

Now, there’s nothing particularly startling about such a disagreement leading to Due Process; that’s an all-too-familiar part of life for families of kids on the spectrum. What makes Killian’s story remarkable is what the district did to try to get their way.

Let’s rewind the tape to this past school year. An on-the-ball speech therapist privately used by the Hynes family realized that Killian might benefit from using a “Tango” communication device. She loaned hers to the Hynes, and it helped. Enough progress was shown that Killian’s IEP team agreed that he should have one. The district ordered a Tango for Killian to use as part of his summer program.

But then the disagreement over the summer placement arose. The District told Kevin and Beth that the Tango device ⎯ which had already been purchased and which everyone agreed would be an appropriate part of Killian’s summer program (whatever that program would be) ⎯ would not be turned over unless their son attended the summer program at Summit.

The district bet that, at worst, the parents would make the failure to turn over the Tango part of the Due Process proceedings. But Kevin and Beth are both lawyers who spotted the flaw in the district’s tactics, a flaw that other parents might have missed.

Ordinarily, disputes between school districts and the special-education students they serve must be handled through the procedures set forth in IDEA and the federal regulations issued pursuant to the Act. That means going through a Due Process hearing before going to federal court. But in this case, the district promised to purchase a Tango device for Kilian’s use, and the Hynes relied on that promise. That promise may have arisen in the context of the district’s obligation to provide Killian a Free and Appropriate Public Education, but once made, the promise existed separate and apart from that obligation. That gave Kevin and Beth the right to file a contract suit on their son’s behalf in state court.

The legal response from the state was predictable. Their attorney took the position that the dispute could only be handled through IDEA. So the district’s attorney filed pleadings to remove the case from state court to federal court, and to dismiss the case on grounds of prematurity because the parents had not gone through a Due Process hearing.

The propriety of the district’s removal tactic came before the Honorable Milton Shadur on June 27, 2007. That the district’s gambit failed and the case was remanded to state court is not at all surprising. What Judge Shadur said from the bench, however, was remarkable. Federal judges tend to exercise restraint; the most that could be expected was that the judge would note the correctness of the Hynes’ position and send the case back to state court. But this situation called for more. Judge Shadur invoked words uttered by one of his own legal heroes, Joseph Welch:
. . . And his two sentences, which he spoke . . . to the then seemingly all-powerful Joseph McCarthy were, “have you no shame senator? Have you know shame?”

Just so, I must say that the undisputed picture here is regrettably one of the defendants holding . . . a six-year old . . . autistic boy hostage, depriving him of what is without dispute really a promised Tango communication device, something that everyone agrees ⎯ even the professionals agree ⎯ is essential to his effective functioning. And to hold that back as what has to be viewed, I regret to say, as blackmail for his parents, seeking to compel them to accept a program that the defendant’s own professionals have found not to be in his best interests? And I regret that the delay, the nondelivery, appears to be as inflicting serious damage on the boy’s progress in dealing with his extremely serious developmental difficulties. My personal view, which is not going to affect my decision . . . is that’s nothing short of appalling.

Let me tell you where I suspect this dispute might be more effectually resolved consistently with Justice Brandeis’ famous aphorism that “Sunlight is the best disinfectant.” Instead of the anonymous judicial system, I believe that defendant’s conduct ought to be aired in the court of public opinion, maybe by being made the subject of what I suspect would be a scathing article ⎯ for example, in the Chicago Tribune.

And so the matter was ordered back to state court. But the district was not through. The district did not agree with anything Judge Shadur said, including the observation that a little sunlight was needed. The afternoon of the hearing, the district’s attorney sent a letter to Kevin and Beth, communicating the district’s offer to provide the Tango, but only on certain conditions, including:
You must agree never to disclose, publicize, publish, indicate or in any other manner communicate the comments made today by Milton Shadur or reference in any way, today’s court appearance, the litigation you initiated against the District in court . . .

And the letter went on to include a whole laundry list of things that could never be discussed. Kevin and Beth chose not to agree to a gag order.

The case proceeded to state court, where a different judge ordered the district to turn over the Tango immediately. In so doing, the judge made it quite clear that Judge Shadur’s was opinion was shared.

Kevin, Beth and Killian could have been content to take their victory and go home, device in hand. But they knew that if the district treated them that way, then other families without their legal acumen were at risk. They didn’t go to the press, but the press found them. And when the press came calling, they carefully considered whether their family would be well-served by going public. They concluded that this was bigger than their privacy. Go here to find their story in the Naperville Sun. The story was picked up by the Chicago Sun-Times.

But what of Judge Shadur’s first choice, the Tribune? They sent out a reporter and photographer to the Hynes house; they conducted a lengthy interview, but then decided that a story really wasn’t necessary since the case was won.

The Tribune’s decision is regrettable. That the device has been delivered does not remove the stench of the district’s actions. Disinfectant is needed, and has been suggested, sunshine does quite well for that purpose.

12 Comments:

Blogger kristina said...

And I think it's important to keep in mind that District 203's behavior is not unusual. Good for the Hynes for making sure this story gets head.

7/16/07, 8:02 PM  
Blogger kristina said...

I meant "gets heard"!

7/16/07, 8:02 PM  
Blogger Shawn said...

We definitely need more stories like this to get out. It's unfortunate that most Due Process filings end in settlement prior to the hearing and that the district imposes a gag order on the settlement. The outcome doesn't see the 'sunlight' and the next family in a similar situation must start from scratch. In my last post, I described these types of actions as nothing less than bullying.

7/17/07, 10:45 PM  
Anonymous Anonymous said...

I think we are overlooking the fact that District 203 is in ownership of the TANGO, so therefore they can place it where they would like to place it. They purchased the device which is over $8000 for this child to use while within thier district, but it is still within thier discretion on how and who uses the device. I think District #203 should be commended on being so generous as to purchase this augmentative communication device for this child to use, most school districts do not even go this far. SO SHAME ON YOU ALL FOR RAKING DISTRICT #203 OVER THE COALS!

7/24/07, 9:23 PM  
Blogger Wade Rankin said...

O' Anonymous one,

It is actually not theirs to do with what they will. The district has a legal obligation to provide the means for a free and appropriate education to all children with special needs. It is quite common for districts to recognize that those needs may be best met outside of their district.

In this case, the district recognized that a child needed a Tango for his needs to be appropriately met in whatever program he might be in that summer (in fact, the program the district wanted was an out-of-district placement, which you would have realized had you bothered to read the story).

In any event, once that promise was made, it led to a separately enforceable obligation under contract law. It is their refusal to honor that obligation, and their high-handed conduct, that is shameful.

And if you wish to be taken seriously when YOU decide to rake someone over the coals, may I suggest that you not hide behind anonymity.

7/24/07, 9:36 PM  
Anonymous Steve Hutchinson said...

Wade, I would expect nothing less than that comment you posted. You continue to skew the facts and refuse to acknowledge any positives the district does. You are just one of those individuals whom likes to complain and complain and doesn't do anything to improve the situation. So stay on your soapbox Wade and stir up controversy while doing nothing to improve the situation. You must be a proud man! REMEMBER EVERYONE! THE DISTRICT BOUGHT AN $8000 piece of equipment for this individual to student to use! Yes they purchased an $8000 device for this individual!

7/26/07, 9:12 AM  
Anonymous steve said...

Another thing Wade, have you even any idea how other school districts handle augmentative communication devices? I think you should look into that, maybe after you see how other school districts handle the purchase of augmentative communication devices you will have a better appreciation for the job that District #203 does.

7/26/07, 11:17 AM  
Blogger Wade Rankin said...

Steve,

First, thanks for leaving your name.

More to the point, yes, the District bought an expensive piece of equipment for Killian to use. They bought it because the IEP Team determined that the Tango was necessary for a meaningful experience in both the summer placement and the upcoming school year. Once a particular intervention is made a part of a student's IEP, the district cannot legally withhold it.

The inclusion of the Tango into the IEP was not tied to a specific summer placement. While the district had the right to disagree with the parents about the summer placement, forcing the parents to request a Due Process hearing, the district had no right to hold onto the Tango to avoid Due Process.

This is not just an opinion I'm recklessly shouting from a soapbox. It's what is required by IDEA and the enabling regulations, and so far that has been what has been said by both federal and state judges.

7/26/07, 6:34 PM  
Blogger Ian Parker said...

I find the argument that buying an augmented communications device for an 'individual student' to use is somehow laudable or exceptional as disturbing. It is as if somehow the child was not really entitled to - or deserving of - $8000 worth of one-off support, especially for such a trivial ‘need’ (luxury?) as communication, but received it anyway due to the District’s beneficence.

I’m not sure about District 203, where perhaps there is a pool of available and independently wealthy volunteers to staff EA positions, but where I live our EAs expect to earn a salary and be able to eat, afford shelter, etc. Perhaps the cost of living is different here vs. there, but $8000 would not even come close to covering the expected annual salary of an EA here, even on a part time and shared basis. Given the amount (and cost) of support that more than a few children with ASD require to receive the education that they are as entitled to as everyone else, the District’s arguments and actions over this one device seem petty and mean-spirited.

7/30/07, 6:40 PM  
Anonymous pepper said...

This is all absolutley beyond belief. My daughter was in the forefront of the "NLD" disability spectrum when she left that district in 1999. She went through Kingsley and Lincoln with NLD and we got absolutely no accomdations from 1st thru 8th grade. Imagine that, the best school district in the state of IL. We moved to MO., and forged onward ourselves. She is now at Murray State Univ. in Kentucky studying to be a Special Ed. teacher. There is hope. They said she would never make it to college. Hang in there. I will write a book someday about our experieces in Naperville, the best place in the Chicago area to raise kids....yeah right...only if they are perfect or horrendously in need. The fight became futile, our efforts turned to survival. Unreal in that district.

2/5/08, 10:45 PM  
Anonymous Anonymous said...

District 203 did not purchase the device with their funds, they purchased the device with funds provided to them by the government as well as tax payers which include the parents of this autistic child. Every public school is given government funds, so saying that district 203 was "generous" enough to buy the device
in the first place is incorrect. Based on their behavior I'm sure that if they had to actually pay for the device out of their pocket they would not have done so.

7/28/10, 10:28 PM  
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10/30/11, 8:29 AM  

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