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.