Federal judge to rule on claim that Henrico School Board violated disability law

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U.S. District Judge Henry E. Hudson said in court Thursday morning that he hasn’t seen a case like this one in the entirety of his 20 years working as a federal judge: a federal lawsuit against the Henrico County School Board claiming that the school system denied a student adequate education.

“This is an unusual case,” Hudson said. And, “it’s a very, very important case.”

The premise of the case is ordinary: a family claims their student with disabilities was denied a “free appropriate public education” (or FAPE), which school districts are required to provide to students with disabilities under federal law. The family wants its child to attend a private school using public funds. The unusual aspect is the fact that the dispute moved past the usual authority – school district staff and an administrative law judge — and made its way to a federal courthouse. 

The case is the result of a years-long dispute between Henrico County Public Schools staff members and the family of a student at Pinchbeck Elementary School. 

The family, which is being represented by attorney Jason Krumbein, claims that its 10-year-old daughter struggled in school while HCPS intentionally inflated her failing grades to make it appear as if she received passing grades and was making progress.

The girl has multiple diagnosed disabilities including dyslexia, attention-deficit hyperactivity disorder and auditory processing disorder, the family said.

The family said that after schools shut down in 2020 due to COVID-19, HCPS did not provide the services under the girl’s individualized education plan, or IEP, which is a legal document under federal law that is developed for every public school student in special education. The document is required by the federal Individuals with Disabilities Education Act

The family eventually decided to withdraw its student from HCPS in March 2021 and paid for her to attend The New Community School, a private school in Richmond geared toward students who are challenged by dyslexia and other learning differences.

The family filed for a due process hearing for denial of FAPE and requested reimbursement for the private school tuition and other out-of-pocket expenses for education services the student has received outside of HCPS. 

The hearing officer ultimately ruled that the student and her parents were the prevailing parties, and that HCPS failed to provide a FAPE, according to court documents. However, the hearing officer denied the parents’ requests for reimbursement of the student’s educational expenses. 

In the initial request for judicial review, the family asked the court to reverse the hearing officer’s denial to place the student in a private school and also asked the court to award $3 million in compensatory damages and $350,000 in punitive damages for the “pain, suffering, embarrassment and other emotional damages” that the child experienced as a result of the school division’s actions.

In court on Thursday, Senior Henrico County Attorney John McChesney argued that even if the school division denied the student FAPE, the family did not prove that the private school was appropriate and therefore the division is not required to fund private school tuition. The Henrico School Board moved to dismiss the case.  

Krumbein said Thursday that it makes no sense that the school division denied the student of FAPE and yet did nothing to fix it.

“It’s certainly gross misjudgment,” Krumbein said. And, “could be viewed as bad faith.” 

He claimed that the school division failed to comply with its own regulations, as well as state and federal regulations. 

The case was originally filed in Henrico Circuit Court, but was removed to Virginia Eastern District Court in April because the plaintiff’s two claims are under federal statutes: the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. 

Judge Hudson will rule on the school board’s motion to dismiss the first count, which is related to IDEA. He said the opinion will likely be published within a few weeks. 

If the first count prevails, Hudson said he will set a jury trial for the second count. 

On Thursday, attorneys on both sides indicated possible interest in a settlement hearing. 

A HCPS spokeswoman said that the school division (and school division attorneys) do not comment on on-going litigation.

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