Henrico County could have paid $23,000 a year to send Gregory Matthews Jr. to a school that specializes in autism. Instead, the school district has paid outside lawyers $212,475 to argue that he should remain in the public school system.
Matthews’ family said the school district wasn’t providing an adequate education for their son. Federal law requires localities to provide all children with a free and appropriate education, regardless of their needs. And the U.S. Supreme Court recently determined that students with special needs must show reasonable progress wherever they are placed.
Henrico school officials argued in due process hearings and court documents that Matthews, who is diagnosed with severe autism, had shown some progress in the public school system, and that the family failed to prove otherwise.
The Matthews family moved to New Kent County in May, leaving their hometown in a bid to find a better fit for their son. He’s now 16 and enrolled at the Faison Center, with New Kent schools picking up the tab.
But the family’s dispute with Henrico County isn’t over.
The county School Board is trying to make the Matthews family and one of their former advocates, Kandise Lucas, pay an undetermined amount of its legal fees, saying the family didn’t inform the county soon enough of the move to New Kent.
Tonie Matthews, Gregory’s mother, says that’s adding insult to injury.
“Our life has been miserable since this has been going on,” she said. “We tried to get away to get an education for my children.”
In Henrico, where special needs students are placed in private schools such as Faison at a rate 40 percent higher than the state average, school division officials have pledged to spend more on improving special education programs and less on costly legal disputes.
The issue has drawn the attention of other top county officials, including elected leaders and Henrico County Manager John Vithoulkas, who said he has been troubled by the “rough treatment” of families like the Matthewses.
“It’s not the role of the county manager to speak to special education cases. My role is to make sure the schools are appropriately funded. But if I were to say it didn’t bother me, that wouldn’t be true,” said Vithoulkas, who has worked over the last year to stop the school division from paying outside lawyers to handle special education disputes.
School for ‘Junior’
Assigned to Henrico’s special education program, Gregory, whose family calls him “Junior,” couldn’t speak or write his name and was not meeting his learning goals, so his parents began trying to find a better school for him.
There also was an incident where an instructional assistant at Highland Springs High School admitted to grabbing Junior’s face, but in a playful manner. The family alleged abuse. A Department of Social Services investigation determined the allegations were unfounded.
The family filed a due process complaint, requesting a private placement at Faison. A court-appointed hearing officer ruled that the county must abide by the parents’ request for Junior to attend Faison. A second hearing officer disagreed, and the school division filed an appeal in federal court.
Nyah Hamlett, a Henrico assistant superintendent responsible for overseeing special education services, said the school district strives to keep special needs students in classes with their peers in line with federal policy.
“That’s more restrictive,” Hamlett said of private placements. “If we know without a shadow of a doubt that we can or have been adequately serving a student, then naturally we’re going to fight to try to maintain that student in the least restrictive environment.”
Yet the number of private placements, which are generally more expensive than public programs, have steadily increased in recent years.
About 200 of the approximately 6,500 special needs students in Henrico attend specialty schools such as Faison. According to data from the Virginia Department of Education, Henrico has sent more children to private specialty schools in the past three years than anywhere in the state besides Fairfax County, which has about four times as many students with special needs.
Over the past five years, the overall cost of private placements in Henrico has doubled, rising from $5 million in 2014 to $10.5 million last year. Henrico spokesman Steve Knockemus said the state covers about two-thirds of the cost for private placements; the county pays the rest.
The cost of sending a student to Faison is more than twice Henrico’s average per-pupil spending of about $10,700. The cost for accommodations, including private school placements, however, can’t legally be considered when determining what services are appropriate for a child with special needs.
Todd Ratner, a local lawyer who focuses on special education law and has a son enrolled at Faison, said most families with special needs children want their kids to learn with their peers, but some students require specialized attention in separate classrooms.
While families can work with the school district to figure out what can be done to best serve their children, the school district in some cases has been reluctant to meet families’ requests and will use legal counsel to deter them from seeking special accommodations or placements, Ratner said.
Henrico spent approximately $3.5 million last year sending children like Junior to private schools, but also spent an additional $1 million on lawyers to keep students with special needs in public schools, according to county officials.
“They have in the past taken a very aggressive position with parents. It can be a deterrent to parents seeking to vindicate their rights aggressively,” Ratner said.
But if families file complaints and hold out, the county is more likely to relent, Ratner added.
Hamlett said school officials do not consider cost when determining what is appropriate for a special needs student, but sometimes have to act as “claims adjusters” and consider money when deciding whether to continue a dispute with a family if it lasts longer than expected.
Despite the large rate of private placements — which Hamlett said are due to the high number of private special education schools in the area and the lack of public regional programs — she said the school district is indeed reluctant to approve those requests.
“In order to maintain integrity as a school division ... we don’t want to automatically acquiesce because once a decision like that is made, it sets a precedent for others to think that private placement is the way to go and that the least restrictive environment doesn’t matter,” she said.
Continued complaints against the Henrico school system increased scrutiny of its special education programs and facilities last year.
In February 2017, the county made plans to hire former Secretary of Education Anne Holton to conduct a study of the county’s special education services. County officials last year also added $90,000 to the school division’s budget to assign a new attorney to help school officials handle special education disputes.
The Holton report notes that most students with special needs in Henrico spend most of their time in traditional classrooms with their peers, but that the rate of private placements is also high, possibly because of “challenges” related to the quality of its special education services.
The report also says the county’s special education program at the Virginia Randolph Education Center is inadequate, recommending that it be shut down or overhauled.
“The private placement decisions tend to be some of the harder flashpoints, but there was a wide range of advice from parents for us,” Holton said of the interviews her team conducted with families for the study. “Some of the frustrations are around part-time instructional assistants and, quite frankly, the consistency and stability of the teaching faculty.”
The school division has since worked to improve Virginia Randolph’s facilities and is planning to hire more instructional assistants and teachers for its special education programs.
At a board retreat in January, Henrico Supervisor Tommy Branin told Superintendent Amy Cashwell that the study was initiated because of complaints to elected officials about the cost of legal disputes.
Emails obtained through a Freedom of Information request show officials continued to be concerned about those costs through the summer.
In August, after Supervisor Tyrone Nelson sent an email asking how they could justify the spending on outside legal counsel, Vithoulkas forwarded the message to Holton, saying that her report would help and that he planned to “cut off” payments to the school division’s preferred outside law firm, Reed Smith.
School Board members declined to discuss the case or did not respond to calls and emails. An attorney from Reed Smith also did not respond to a request for comment.
Even though cost cannot be a consideration by law, Hamlett said she thinks the school division made the right choice to appeal the Matthews family’s request because agreeing to place him at Faison may have required the county to pay his tuition over the next six years, as students with disabilities are entitled to educational services through their 22nd birthday.
“Even if we place a student for one year just to see how it’ll work or do what the parents want, fighting our belief that we can serve the student, we have to have the parents’ permission to bring that student back to our school or change the placement,” she said.
“If we made that decision, we essentially would have been stuck with it.”
Still in court
The Matthewses’ decision to move to another school district created a rift between them and Lucas, who advised them to stay and fight and no longer represents them.
The move — out of Tonie Matthews’ hometown — set the family back, Matthews said.
And the threat of sanctions looms. The next hearing in the case is scheduled for 10 a.m. Wednesday. The motion requests that the Matthewses and Lucas cover the school division’s attorneys fees and asks the court to fine them an unspecified amount.
Hamlett said $93,000, about half of the litigation costs aimed at fighting Junior’s placement, was spent after the school district learned about the family’s move.
“This move was never disclosed to Henrico County Public Schools by the parents, even as they continued their request to have Henrico taxpayers pay for the private placement at Faison,” schools spokesman Andy Jenks said in a statement.
After the release of the Holton report in September, Lucas said she intentionally escalated the number of due process complaints against Henrico schools to draw attention to what she believes are problems with the division. In the 2017-18 school year, the rate of those complaints in Henrico was twice as high as any other school system in Virginia, with Henrico accounting for a quarter of all complaints.
Matthews said Lucas’ campaign against the school division and Reed Smith’s attorneys put her family in the middle of their ongoing quarrel.
“She tried to help me, but she made it worse because of her reputation and character,” Matthews said.
Lucas, however, said the Matthews family would have encountered similar issues with any other school district.
“This is conversation I have with all the parents I represent whenever they come to me and say they want to move to another district,” Lucas said. “I usually tell them; no matter where they go, there are going to be issues.”
Matthews said she told Lucas several times that the family planned to move, but Lucas has said to court and county officials that she didn’t know it happened until July, about a month after Lucas filed new complaints against the school district with the family’s Henrico address. Lucas said the fraud allegations are baseless.
“Everyone knew I was moving,” Matthews said. “There’s nothing to hide. Why would I do that?”
She said she feels optimistic for her son’s future now, but is exhausted and afraid of what might happen next.
“We’re a family just trying to make it like everyone else.”