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Henrico takes autistic boy's family to federal court Henrico School Board takes autistic boy's family to federal court

Richmond Times-Dispatch - 3/13/2018

The Henrico County School Board is taking a family to federal court over a dispute about the appropriate education for a severely autistic boy.

Last month, the board filed a lawsuit to reverse a hearing officer's decision in December that the Henrico school system was not providing Gregory and Tonie Matthews' son with a free appropriate education and should pay for him to attend a private school that could. The 18-page complaint was filed in the U.S. District Court for the Eastern District of Virginia.

The Henrico School Board argues that the school system has made progress with Gregory, a nonverbal 15-year-old diagnosed with severe autism, and can continue to do so. The hearing officer based his decision on an issue that was barred by the statute of limitations and in one instance ruled in favor of the board by refusing to set aside an education plan developed in June, the School Board argues.

"The hearing officer committed error by failing to render a proper decision based on an accurate and impartial application of law to the facts," the lawsuit says of the December ruling. "The hearing officer committed error by failing to apply correct legal standards in rendering his decision."

Further, the School Board argues that a January decision by a different hearing officer in its favor should trump the ruling that sided with the Matthews family. A redacted version of the January ruling is included in the court filings.

Kandise Lucas, an advocate for the Matthews family, said it's the December ruling that should stand. She shared a copy of a letter from the Virginia Department of Education saying the Henrico school system must provide the compensatory education ordered by the December ruling. The VDOE does not comment on the particulars of specific children due to federal privacy law.

"Regarding the appeal, the actions of the district seem to be desperate, and yet another means for the Reed Smith law firm to take thousands in tax dollars away from educating our children," Lucas said.

Kathleen Mehfoud, an attorney with Reed Smith representing the School Board, did not immediately respond to requests for comment Monday. The costs of disputes like the kind with the Matthews family have drawn concern from Henrico'sBoard of Supervisors and county staff. The fees associated with Henrico's special education disputes mushroomed from $107,185 in fiscal 2015 to $404,925 in fiscal 2018.

The school system would not comment on the appeal of the December ruling. Last month, Superintendent Patrick Kinlaw said he disagreed with the findings of the ruling and believed the school system could provide an appropriate education.

Sending Junior, as the family calls Gregory, to the Faison Center, a private school in Henrico for children with autism, would cost Henrico around $23,000 annually - or roughly one-third of the total tuition, with the state paying the rest. Tonie Matthews thinks that's the sticking point for the School Board. By law, cost cannot be a consideration when determining the services for a child with special needs.

"They're fighting because of the money situation," Matthews said. "I'm fighting for my son's education."

Federal law mandates that school divisions educate students with disabilities in their least restrictive environments and at public expense. Teams of parents, teachers and specialists develop individualized education plans for students with disabilities. If parents take issue with the plan for their child, they can take formal steps to resolve the dispute.

That's what the Matthews family has done with the help of Lucas, a controversial gadfly in the eyes of Henrico school administrators who take exception to her racially charged criticisms. During the public comment period of a recent School Board meeting, she told Kinlaw they weren't on a plantation and didn't have to call him master.

Lucas' conduct at the hearing that led to the December ruling and that of Sa'ad El-Amin - a former attorney and Richmond city councilman who was the lead litigator for the Matthews family in the December administrative hearing - appear to come under fire in the School Board's appeal. Neither is mentioned by name in the complaint.

"The hearing officer also failed to ensure that the atmosphere at the hearing was conducive to fairness at all times, by allowing the parents' advocates to attack School Board witnesses and School Board legal counsel by calling them disparaging and inappropriate names throughout the proceeding and by publicly publishing inappropriate remarks about them relating to their personal and professional lives during the hearing," the lawsuit says. "The advocates' actions prevented the conducting of a fair and impartial proceeding and had a chilling effect on the due process hearing."

El-Amin defended a forceful style that he likened to a ring of fire and questioned the truthfulness of the statements Henrico School Board witnesses made. He said the School Board's assertion about his conduct was the comment of sore losers.

"I was very forceful on my cross examination because their witnesses were lying and making incredulous statements that were completely without foundation," El-Amin said. "They were being disrespectful to the parents and the child. I would not have that."

The Matthews family argues that Henrico schools have not and cannot make progress with Junior. In the wake of allegations that an instructional assistant was abusing Junior, the Matthews family has refused to enroll him in the Henrico school system or let it evaluate him. An investigation did not uncover any evidence of abuse, but a principal admitted it would never be appropriate to grab a child by the face, as the instructional assistant admitted to doing.

The School Board alleges that the hearing officer did not properly take into account the opinions of experts and ignored what it calls a lack of cooperation by the Matthews family.

Junior has been attending the Faison Center for weeks and is making progress, Matthews said. He has begun speaking without the prompting he typically requires, she said.

"He's happy when he comes home," Matthews said. "We can't believe that he's talking."

As the dispute over Junior's education winds its way through court, Henrico has brought in high-profile consultants to essentially audit its special education programming. The review is expected to cost about $70,000 and is being led by Anne Holton, the former Virginia secretary of education, and Adai Tefera, an assistant professor at Virginia Commonwealth University.

Henrico is one of four local school systems that have been flagged by the VDOE for disproportionate punishment of African-American students with disabilities, who remained at least three times more likely to face long-term suspensions than other students with disabilities.

Schools spokesman Andy Jenks said the consultants are reviewing and analyzing data and interviewing different stakeholders.

A full report is expected sometime after the close of the school year.

moconnor@timesdispatch.com(804) 649-6254

 
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