Share
Brandon Hawkins is more interested in the Pokemon video game he can no longer see than the end of his family's battle with Charlotte-Mecklenburg Schools.
He's 11 now, losing his memory and strength to a genetic disorder that will take his life.
Since he was a kindergartner at David Cox Elementary, parents Wendy and Chris Hawkins have been fighting CMS over his right to special education. They eventually put him in private school, then moved to Concord.
But they kept an ever-thickening folder documenting CMS delays, errors and obstacles. They won a series of rulings against the school district.
CMS went to federal court to fight paying $17,400 plus legal fees, saying the family had missed the deadline to sue.
This summer, after yet another rebuke from a judge, CMS settled the case for $125,000, split between Brandon's family and their lawyers. The district spent almost $64,000 on its own legal bills.
Advocates who have aided the Hawkinses say they're not sure which is more startling: that the family won against such a powerful adversary, or that CMS kept resisting.
“It was just simply amazing, the level of indifference exhibited by the school system,” says lawyer John Rittelmeyer of the Raleigh-based Disability Rights NC.
Superintendent Peter Gorman and Jane Rhyne, the official in charge of special education, wouldn't comment for this article.
Wendy Hawkins says she and Chris, who work for Wachovia, will use their share of the settlement money to support nonprofit groups such as Make A Wish that have helped their boys.
She says she's still feels a school system she trusted has closed ranks against her family.
“The fact that there's never been anything said by the people involved, there's a loss of human behavior there, and that's sad.”
A family tragedy
A diagnosis of Batten disease is devastating. There is no cure for the neurological condition that erodes sight, mind and body.
Wendy and Chris Hawkins have heard it twice: First for Brandon, then for his 8-year-old brother, Jeremy.
Everyone who works with the family, even some of the officials they're suing, remarks on their level-headed approach to helping their boys.
The Observer did a front-page profile on the family in 2007. Since then, Wendy Hawkins, a Wachovia manager, has started working from home because of the boys' seizures.
She says they're thriving in Cabarrus County Schools, where they have individual aides and are learning to use canes and type Braille.
Brandon, who just finished sixth grade, is showing signs of dementia, his mom says. Jeremy, a rising fourth-grader, gets angry about losing his sight.
The boys pray for a cure. “I know God has a plan,” Brandon told his mother. “It's just taking him some time.”
Classroom mystery
At least now the Hawkinses understand what's happening.
Early symptoms of Batten disease – personality changes, trouble learning, vision loss – can baffle even doctors. Chris and Wendy don't blame CMS for initial confusion about Brandon's problems.
But they do blame the district for what followed: missed meetings, botched communications and refusals to help. By first grade, his struggles were severe enough that Wendy took four months off to tutor him. When the parents insisted that CMS test Brandon for learning disabilities, it took 10 weeks to get a response.
CMS decided Brandon didn't fit any of the categories for special education.
After visiting specialists that summer, the family knew Brandon needed help that CMS wasn't offering. For second grade, they moved him to a private school specializing in learning disorders.
And they asked CMS to pay his tuition.
Federal law requires school districts to offer all children a “free, appropriate public education.” If public schools can't meet a child's needs, they're required to pay for private schools that can.
CMS argued that wasn't the case here.
The district serves more than 14,000 students with an array of disabilities. This year the district had about 1,900 special-education employees with a budget just over $100 million.
The Hawkinses said that even if CMS could help Brandon, the district had refused, leaving private school as their only option.
Going to court
By the spring of Brandon's second-grade year, an ophthalmologist said he was going blind. His parents asked CMS to pay for him to learn braille.
It took until the following fall to get a meeting with CMS, and a full year to get an answer: The district would help, but only if the parents signed a confidentiality agreement.
The parents' refusal is one of the exceptional things about their case, says Brett Loftis, executive director of the Charlotte-based Council for Children's Rights.
Loftis says his agency, which represented Brandon in court, hears from lots of families denied services by CMS. Many, he says, simply give up. Most others agree to “a gag order” if that's what it takes to get help.
Chris and Wendy fought back. They went to the state Department of Public Instruction, which in 2006 ordered CMS to pay for Brandon's third-grade private-school tuition and expenses.
The parents then filed a court claim to cover second grade. CMS and its lawyers insisted the time to sue had run out while the parents were trying to work with the system.
An administrative law judge ordered CMS to pay $17,404 of the second-grade costs, saying the district's “grossly inadequate and untimely response” invalidated the time limit.
CMS appealed and lost.
In 2007, CMS took the case to federal court. Gil Middlebrooks, representing the district, said at the time that giving Brandon's family an exception to the legal time limit could encourage more families to sue over old grievances.
Finally over
If the district had simply made the wrong decision about Brandon, it wouldn't have been liable under federal law. To sue for discrimination based on disability, the family had to prove “bad faith or gross misjudgment,” U.S. District Judge Martin Reidinger wrote.
After reviewing Brandon's files, he ruled in September that CMS's four years of resistance not only met that standard but suggested “a malignant arrogant indifference.”
That's when CMS offered to settle, said Rittelmeyer, who is now Brandon's attorney.
Wendy Hawkins says the real victory would be knowing CMS will never deny another child service.
She says she'll find a way to advocate for others.
“I know that there are families that are falling through the cracks and not getting what they need,” she said, “and that tears me up.”
