Cook Judge Bars Publication of Documents About Student Drowning, Raising Free Press Concerns
This story was published with the Chicago Sun-Times.
A Cook County judge has ordered the Better Government Association not to publish hundreds of pages of internal Chicago Public Schools records detailing the school drowning death of a 14-year-old with autism.
Circuit Court Judge Peter Flynn on Wednesday denied an emergency motion by the BGA to vacate his order, dismissing the argument that such a ruling was an illegal “prior restraint” on the rights of a free press.
In late January, a CPS lawyer supplied the BGA with investigative files and internal records related to the drowning during an ongoing lawsuit filed by the watchdog organization. Within days, however, the schools’ lawyer asked for the return of the documents, saying their release was a mistake.
An investigation of the 2017 drowning of Rosario Israel Gomez by the BGA and the Chicago Sun-Times raised questions about the supervision of a special-needs student who was allowed in a crowded pool even though he couldn't swim and wasn't required to wear a life vest. It also underscored broader doubts about the care given by CPS to its thousands of special-needs students.
In his ruling, Flynn ordered the BGA to delay publishing the records until at least Feb. 20 so he could review them to determine what portions should be released.
“Just hold your horses,” said Flynn during an hourlong hearing on Wednesday. “There is no emergency here in any meaningful way … I don’t think it’s a prior restraint. I think it’s efficient management of a case.
“I am not going to declare World War III in the context of this report,” Flynn said. “It just doesn’t make sense.”
Matt Topic, the BGA’s attorney, disagreed.
“The fact is your honor, to the press, any prior restraint is a declaration of World War III,” Topic said. “You have the press, which has a highly relevant important document that they obtained through nothing illegal and you are restraining them from publishing that document where they have an ethical and professional obligation.”
Topic said he intends to appeal Flynn’s decision, perhaps as an emergency petition to the Illinois Supreme Court.
Brendan Healey, a Chicago media lawyer who entered an appearance at Wednesday’s hearing on behalf of the Washington, D.C.-based Reporters Committee for Freedom of the Press, said he could not remember another case of a prior restraint order being issued in Illinois courts.
Under long-established U.S. Supreme Court precedent, prior restraint of the press is prohibited except in the most extreme circumstances, such as true threats to national security.
“It’s a big deal,” said Healey, who said there has never been a case where the U.S. Supreme Court has upheld a prior restraint order against the media. “When the press is told they can’t speak about something they have lawfully obtained, that presents a serious constitutional issue, and the threshold for overcoming that is really very high.”
Flynn said the BGA is trying to play “gotcha” and obtained the documents through an inadvertent disclosure through a court proceeding.
“No, they obtained it by doing nothing other than seeking the document that was given to them,” Topic said.
Past reporting by the BGA and the Sun-Times about Rosario’s death relied on police records and interviews with staff members in the pool the day he drowned and raised questions about a lack of proper supervision by CPS personnel. One witness said they tried to get the attention of a staff member to no avail as Rosario’s body lay at the bottom of the deep end of the pool at Kennedy High School on the Southwest Side.
In the wake of the tragedy CPS fired three employees, including the lifeguard on duty that day. It disciplined two others, and instituted new rules about pool safety.
CPS attorney Mara Warman told Flynn on Wednesday that her office is precluded by law from releasing student records without a judge’s order, and asserted that CPS was trying to “claw back” the mistakenly released records to both follow the law and preserve student privacy.
“We had no intention to tender that report without an order from your honor,” Warman said.
Flynn, a graduate of Yale Law school and a Cook County judge since 1999, said he will try by Feb. 20 to make his decision on what portions of the records should be made public and what should be redacted.
“We are where we are and we’ve got to where I think we ought to be, and I’m done, for the moment,” he said.