Family Fighting For Son With Down Syndrome To Attend School In Westhampton Beach To File Federal Complaint

WESTHAMPTON BEACH, NY — The parents who have been fighting for their son, who has Down syndrome, to attend school with his friends in the Westhampton Beach School District, are forging forward with the battle, filing a complaint in federal court on Friday.

The complaint, to be filed with the United States District Court, Eastern District of New York, states that Aiden Killoran, 14, son of Christian and Terrie Killoran, "continues to suffer from the significant emotional, psychological and physical effects caused by Westhampton's affirmative and discriminatory actions."

According to Christian Killoran, he and his wife are hopeful that the filing will bring their son's substantive complaint before the purview of the court.

"To date, Westhampton Beach School District has done everything in its power to avert the adjudication of the issues. We are confident that justice is now on the foreseeable horizon and we look forward to a new day, not just for Aiden, but all special needs children who will follow him," Killoran said.

He added that it has been more than two years since Aiden graduated from Remsenburg-Speonk Union Free School District and yet, the Westhampton Beach School District "continues to have its heels stuck in the ground, so as to preserve its discriminatory culture of institutional laziness. My family understands the Westhampton’s intransigence, because Aiden’s case basically represents a 'Pandora’s box', that will change the way Westhampton has historically been governed."

And, Killoran said, "Remarkably, New York State remains the worst state in the nation regarding inclusion, and Westhampton remains a perfect example of this antiquated mind-set. The recent Supreme Court decisions profile that Westhampton can no longer 'hide' behind its past practices. It is just sad, and frustrating that the Board of Education and superintendent would be so foolish with the taxpayers' money, simply to preserve their personal agendas. It’s actually an outrage."

The complaint asks that that the court issue a declaratory judgment holding that "Westhampton has violated Aiden's rights" as protected, issue an order "compelling to educate Aiden in accord with its at law mandates, which shall expressly include at least an attempt to implement Aiden's IEP within Westhampton", an award of compensatory education to mitigate the deprivation of educational rights" they believe their son suffered for two years, and "an award for monetary damages (including punitive) related to the emotional, psychological and physical damages suffered by Aiden and his parents due to Westhampton's intentional, malicious, and/or recklessly negligent violations," the complaint states.

The Killorans have been advocating for years for their son, Aiden's, right to continue to attend middle school in Westhampton Beach with his brother and the friends he attended classes with in Remsenburg.

The past months have been marked with hurdles as they filed a federal lawsuit regarding the Westhampton Beach School district, which, they said, has not provided a program to educate their alternately assessed special needs child.

Westhampton Beach School District, Killoran said in January, was ordered to formally enroll Aiden, retain a qualified consultant on inclusion, with experience at the middle school level, and reconvene a Committee on Special Education to develop an appropriate individualized education program, or IEP, for Aiden, something that was seen as a victory.

To date, however, he remains only partially enrolled, Killoran said, suffering the "educational deprivations of not being educated completely within the least restrictive environment possible."

Back in January, Killoran said the IHO denied the family's claims for compensatory damages but said he would be appealing that component and now moving onto the federal court to seek punitive damages for "the hell they — the superintendent and board — put my family through. They need to be held accountable. Also, the district will likely appeal, so the battle will likely continue," he wrote.

In an interview with Patch in January, Killoran said the decision has unleashed a full range of emotions.

He said the decision means the district was mandated to hire an inclusion consultant to explore the possibility of implementing Aiden's IEP within the district. "It's a great thing, in theory. Seemingly every other high school or middle school throughout Long Island has integrated children so there should be no theoretical reason why this district can't do it."

Killoran said he planned then to file a notice of claim in regard to federal action for compensatory and punitive damages.

In short, he said, "The battle is certainly not over. We're not letting our guard down."

Mike Radday, Superintendent of Schools at the Westhampton Beach School District, commented on the decision in January: "Westhampton Beach School District has reviewed the decision of Impartial Hearing Officer Nancy Lederman and will fully comply with her order. The order requires the district to retain an educational consultant to review the child’s educational records, to examine appropriate 'life skills' placements both within and outside the district, and to recommend to the district’s committee on special education (CSE) an appropriate program and placement. We are pleased that IHO Lederman has directed the case back to the district’s CSE, which is the appropriate venue for program and placement decisions. The district will move forward in compliance with IHO Lederman’s order, despite the parents’ decision to file an appeal of the decision to the New York State Education Department’s Office of State Review."

After a request for comment on the federal complaint, Radday said, "The district has not received information about any new federal lawsuit. Nevertheless, the district will not comment on pending litigation."

The battle has been ongoing for some time.

In September, 2016, despite what was believed to have been a victory, Killoran said he and his wife Terrie were dealt a heavy blow.

According to Killoran, despite a hearing earlier that had appeared encouraging, after leaving their son Aiden's Committee on Special Eduction, "The district is still unwilling to implement Aiden's individualized education program," he said. "Terrie and I appeared at Aiden's CSE with open and hopeful hearts, as well as a spirit of reconciliation."

But, Killoran said, the couple was faced with another roadblock.

"Unfortunately, the Westhampton Beach School District simply regurgitated their same old response that they do not have an appropriate program for Aiden. Of course, we were already aware of this, as the district has never in its history provided for the post-elementary internal education of any 'alternately assessed' special education student," Killoran said.

In an email in September, Radday responded, "Since the inception of this matter, the Westhampton Beach School District has acted in what we believe to be the child’s best interests in seeking to ensure that he is placed in a program that will appropriately meet his educational and developmental needs. The Westhampton Beach UFSD Committee on Special Education, or CSE, has, in fact, met and approved an IEP that does just that. Out of respect for the child’s privacy rights and the pending legal process, we cannot comment any further at this time.”

Killoran was incensed after the meeting.

"The point of this whole battle has been to convince them that they have to, both as a matter of law and equity," he said. "The record is now clear that the district has had no basis to deny my son's enrollment, which has otherwise deprived him of the educational path that he was entitled to. Now, the district will be held accountable. I invite the public to inquire about this atrocity and hold the board, district counsel, the superintendent and the director of pupil services accountable. They are the cause of this shameful legacy and have placed the district in a shameful position at the taxpayer's expense."

Earlier, the Killorans were jubilant after what they thought was a step forward.

"The district agreed to immediately enroll Aiden as a student and convene a Committee on Special Education," Killoran told Patch at the time.

While the results of the CSE remained pending, Aiden was to be receiving the academic portion of his IEP at home and receiving his related services within the Westhampton Beach School District, Killoran said.

"If the district cannot determine a way to meet Aiden's needs for complete integration voluntarily, the hearing, which remains open, will conclude in October and "the courts will decide," Killoran said.

The hearing took place at Westhampton High School in August, 2016.

Attorney Kevin Seaman, representing the district, said only the New York State Commissioner of Education can decide whether or not a receiving district possesses valid or sufficient reasons to decide whether or not to enroll a child from a sending district.

The district, Seaman said, does "not have a program close to being able to educate" Aiden, he said, adding that the Remsenburg Speonk Union Free School District has placed special education students with the Eastport-South Manor School District, which has an "excellent life skills program" that can meet special education students' needs.

The Westhampton Beach School District, he added, has "no obligation," constitutionally or civilly, to create, "on demand of the parent, a program that does not exist, or to enroll" a student in a program that "cannot possibly contribute to a meaningful education.'

There exists, he said "a panopoly of programs " at other districts that can meet those needs.

Lisa Hutchinson, attorney for the Remsenburg-Speonk School District, said the decision at hand would be based on three questions: Where Aiden should be enrolled, what district's committee on special education would map out an IEP for him, and whether program recommendations made for Aiden "are appropriate to meet his educational needs."

"We do not believe valid and sufficient evidence exists to deny enrollment," she said.

In addition, she said, parents of students between sixth and eighth grades are permitted to choose what district their child will attend. Aiden's parents chose Westhampton Beach, she said, and, as a result, the district should have enrolled him, she said.

"Not having a particular special education program has never been a criteria for Westhampton Beach to refuse to enroll a Remsenburg Speonk student," she said.

Instead, she said, Westhampton Beach is required to enroll the student and have the CSE meet and make recommendations for an appropriate program.

Killoran spoke passionately during his opening remarks at the hearing. "Today is August 29, in the year 2016. And it's not the month that's significant, not the day. It's 2016. To date this district has never in its entire history provided for the post elementary education of an alternatively assessed special education student. Never."

He added, "There is no amount of legal paper, and no amount of smoke and mirrors, that can hide that fact."

Killoran said change needs to happen. "This history of segregation, this culture of discrimination, this history of bigotry needs to end today."

Despite the months' long battle, as the first day of school approached, all Aiden wanted was to attend the same district as his brother and friends.

In order for the federal case to proceed, it was determined that Aiden's family must "first seek our petitioned for relief at the local and state level, which this due process complaint and hearing represents," Killoran said.

In the fall, Killoran, a Westhampton Beach attorney said, he received a temporary restraining order, barring him from school property, should he bring his son on the first day of school.

"They say they are not enrolling or admitting him because they are fearful of effects on other students and they don't have the resources to educate him," Killoran said.

Without the green light from Westhampton Beach, his son would need to attend school at a BOCES program or be bused to another school district, he said.

Killoran's other son, Christian, is enrolled in the district.

"He just wants to go to school with his brother and the friends he grew up with"

Although his parents have tried to "shield" Aiden from what's been transpiring, "He just wants to go to school with his brother and the friends he grew up with," Killoran said.

The Killorans also have a daughter, Shannon, he said.

The past months, Killoran said, have been "stressful, taxing emotionally and financially."

He added that he believes the teachers at the Westhampton Beach School District would do a great job educating his son. "I have confidence in the staff. The administration doesn't," he said.

Last year, the Killorans kicked off a Change.org petition, "My Son with Down Syndrome Deserves An Education."

"My son, Aiden, is like the king of his school. Everybody knows and likes him. He's funny, outgoing, and just happens to have Down syndrome. It's never held him back and he just graduated from elementary school with his friends this spring," Killoran wrote in 2015.

"Aiden and our family thought he would continue on to seventh grade with his classmates at his hometown school but suddenly we were told that because Aiden has Down syndrome, he can’t attend the same middle school as his peers, friends and siblings — he’d have to be bused to a neighboring district."

Killoran added, "We think this is wrong. And we are demanding that Aiden is included, not excluded, from the educational environment that is best for him."

The Killorans, the petition says, have the support of the community and of the National Down Syndrome Society, or NDSS..

In 2015, and after 25 years of the passage of the Individuals with Disabilities Education Act, "every public school should be able to accommodate a student with Down syndrome or another disability in the classroom. People with Down syndrome are living longer, healthier and productive lives, attending post-secondary education programs, getting married, obtaining gainful employment, and are more integrated into the fabric of society than ever before," the petition states.

"Aiden has the right to attend his local school for many reasons, including a recognition of his basic human dignity, as well as the lawful protections that advocates of special needs children have fought so hard to achieve thus far. Fostering Aiden’s community network is essential to cultivating his future success and ensuring his ability to live a productive life as a contributing member of society," the petition reads.

Photo courtesy of the Killoran family/hearing photo by Lisa Finn.