By Jay Mathews
Washington Post Staff Writer
Tuesday, February 14, 2006 11:06 AM
One day in May 2004, a student at Short Pump Elementary School in Henrico County, Va., walked up to fourth-grader David Henck in the cafeteria and said, "It would be a holy day if you were shot dead by a sniper."
That single incident would have been bothersome enough to David and his parents, Bill and Leigh Henck, but it was not the first time children at Short Pump Elementary had been cruel to David. He has Asperger Syndrome, a neurobiological disorder marked in part by social clumsiness. He was, as his father put it, a bully magnet, and his parents did not think the school was doing enough to help him.
I am telling this story based almost entirely on Bill Henck's account. I asked the Henrico County school system for a response, but at first got only two short and relatively general statements from the superintendent, which did not surprise me in the least. I have been investigating several cases of communication between parents and school officials in difficult circumstances, and the standard official response to the parents, and to any reporters who might inquire, is often as little a response as possible.
I don't blame the school officials for this. It seems to me, and the bizarre twists of the Henck case buttress that impression, that the educators are doing only what their lawyers tell them to do. I don't have any cure for this, but I think relating what happened to the Hencks, and how they achieved the momentary but still remarkable milestone of getting the Short Pump Elementary principal indicted for perjury, will dramatize what an awful problem we have in parent-school relationships, and how it might be a good time to get people other than attorneys involved.
The tale of David Henck and the bullies of Short Pump Elementary began long before what the hearing officer in their special education transfer case called "the sniper incident." Students had been mean to David throughout his fourth-grade year, but he did not tell his parents about it until February 2004. When his parents called his teacher, she admitted that she "was aware of earlier incidents of bullying, but had not notified us," Bill Henck said. The teacher was not identified publicly and not made available for comment.
At least three students harassed David. He told his parents he regularly informed the teacher of what was happening, and more than once she spoke to the students and sent them to the principal's office. But after the sniper incident, the Hencks decided their child, because of his disability, had to transfer to another school for his safety and mental health, a decision that they felt was particularly wise when they learned later that the child who made the sniper comment was never given detention or even a suspension for that offense.
When the Hencks made the transfer request, common under special education rules, the Henrico County officials said Short Pump, and only Short Pump, was the proper placement for David, also a common response in such cases. The Hencks transferred David to a local private school anyway and asked a due process hearing officer to grant their request that the school district pay their $9,950 tuition bill for the 2004-2005 school year.
Many parents who have struggled with the special education rules and procedures will assume that what happened next was not good. Across the country, the parents of disabled children are at war with our nation's public education system, but their battles have become so common and so futile that journalists like me rarely write about them, in the same way that we often overlook whatever bloody little conflicts are going on in the Third World.
I have attended special education due process hearings and watched the school system attorneys hired to save taxpayer dollars politely eviscerate the parents seeking more services or a payment for private school. Often the parents are more or less defenseless against a competent lawyer, since they often cannot afford to hire their own attorney. A whole sector of the bar, lucrative to many of the private specialists, is devoted to what seems to me, at least in part, the science of intimidating, humiliating and defeating parents in these cases. Some of the lawyers attend conferences designed to teach them the latest tricks, all of which is completely legal in our adversarial system.
According to Bill Henck, Tom Tokarz, the attorney for the Henrico County attorney's office who defended the school system in the case, took such an aggressive approach that by the end of the hearing the Hencks were absolutely furious, which might explain why they went so far to confront the county after the hearing.
Bill Henck said the school system failed to honor the Henck subpoena for information in the case. He said Tokarz badgered and verbally abused Leigh Henck when he spoke to her before and during the hearing in October 2004. He said Tokarz waved his hands in his wife's face and berated her several times, including mispronouncing her name in a demeaning way. Leigh Henck pronounces her first name "Lay," but her husband said Tokarz twice pronounced it "Lie" and then smirked and said, "Oh, I'm sorry. Did I mispronounce your name?"
Tokarz, a 25-year veteran of due process hearings, said these accusations were "exaggerated and unwarranted." He said: "I don't recall waving my hands in Mrs. Henck's face, and my pronunciation of Mrs. Henck's name was unintentional because it is not pronounced as it is spelled. Furthermore, although some people may regard it as mean or harassing, vigorous cross-examination is a time-tested way of trying to get to the truth."
During the hearing, Bill Henck said, both the principal, Ronald Odom, and the teacher made false and misleading statements. Hearing officer William S. Francis Jr., who according to Henck was one of the few officials who readily answered his questions, accepted the teacher's statement that she did what she could to help David, but was much tougher on Odom.
"Mr. Odom offered little testimony of benefit, being uncooperative and evasive," Francis said in his due process hearing report. "Much of his testimony was inconsistent with previous testimony or with exhibits."
Francis said Odom "made the judgment in regards to David's placement for the next school year on the same basis that he made the judgment that he did not have to comply with my subpoena for notes," a reference to Odom's statement that it was the consensus of school officials that they did not have to answer the subpoena. "Mr. Odom was clearly impeached and contradicted by the evidence in regard to his knowledge of other bullying incidents of David," Francis said.
I have not known Bill Henck very long, but it is clear to me that he is a very persistent person. School officials hate people like that. Henck said some county officials shouted at him for pursuing the matter. But stubborn parents like Henck tend to accomplish things that less persistent parents like me do not because we decide such battles are a waste of time and energy and give up.
A comprehensive account of all the things Henck did to get legal redress for what he considered lies told at the hearing would make this column three times as long as it is. Here is the quick summary: He continued to call and write and call and write every relevant legal authority until a deputy commonwealth's attorney in Henrico, hearing Henck say his office had a conflict of interest, transferred the case to Linwood Gregory, commonwealth's attorney in New Kent County. Gregory took the case seriously, interviewed the Hencks, looked at their evidence and indicted Odom on Nov. 14, 2005, on a single count of perjury.
The charge didn't last very long. It was dismissed two months later on the grounds that Virginia law does not provide for witnesses taking an oath at special education due process hearings and thus witnesses cannot be charged with perjury. The Hencks' attorney advised them not to appeal the due process opinion because it would be hard to beat the county, and if they lost, they faced potential liability of more than $100,000 in a case in which they were looking for just $9,950.
In response to my first request for a reaction to Bill Henck's story, Henrico County school superintendent Fred S. Morton IV sent me two statements. The first statement in full was: "We are pleased that Mr. Odom was not convicted of perjury since our internal review concluded that his misstatements in the due process hearing were neither intentional nor material. However, our satisfaction with the outcome of the criminal charge should not be taken as support or encouragement of our teachers and administrators to lie in due process hearings. We expect and require every Henrico County Public School employee to tell the truth in special education due process hearings, or any other type of hearing involving any student, because integrity is at the core of educational professionalism."
His second statement in full was: "One of the challenges in resolving disputes in an educational setting is that at the core of every dispute is a parent's child -- and that parents, generally, care more deeply about their children than anything else. To that end, we make every attempt to resolve disputes fairly, quickly, openly, and with a great deal of sensitivity. However, as educators, we know that not every parent is going to be satisfied and that despite our best efforts, every parent is not going to believe that their child was treated fairly. We do the very best we can and, like every other public school division I know of, we are continually looking for ways to improve. We have done so here and we will continue to do so in the future."
After seeing an early draft of this column, Morton sent a longer statement. He said in that statement "the school division has addressed the principal's inaccurate testimony and his failure to fully comply with the subpoena. As a result of the father's complaints, the school division conducted a full investigation of the principal's conduct in the hearing. This investigation concluded that the principal testified inaccurately about whether a student received two days detention but that the inaccuracy was due to errors in preparation and recollection rather than a knowing attempt to deceive. In addition, the investigation concluded that the principal failed to completely comply with the subpoena for records without justification. Although the IEP [individual education plan] meeting notes were immediately produced to the hearing officer and were of no consequence to the outcome, the principal was wrong not to produce them in the first instance."
How did Francis rule on the Hencks' request to have their private school tuition paid by the county? Many special education parents reading this will have already guessed. They lost, but there was much of value in Francis' report, as he laid out the cold, hard truths of the special education system in America.
"Although I find from the evidence that David was subject to what I shall term as harassment, teasing, bullying and threatening conduct from other students because of his qualifying educational disability and I find that it had at least some effect upon his social and emotional adjustment and stability and therefore by inference must have had some effect upon his ability to learn, I cannot therefrom conclude that Henrico has failed in its statutory duty to this student," Francis wrote.
"Whether one agrees with it or not," he wrote, "the law establishes a minimum baseline of educational benefits that the county must offer students with disabilities." The law said David was entitled to a "free and appropriate public education," not, Francis said, "the best possible education."
No matter how angry and disheartened the Hencks, and other parents like them, feel about the way they were treated, all that is required is that the school system provide specialized services that "are sufficient to confer some educational benefit upon the handicapped child," Francis wrote.
David Henck is apparently doing better at his private school, but the whole experience, his father said, "has cost my family dearly. Not only the money and time we have had to invest, but also the stress and pain we have had to endure."
That is too bad. The legal system doesn't seem to care much. The U.S. Supreme Court in one of its most recent decisions made it even harder for special education families such as the Hencks to get what they consider justice. So it may be time to focus instead on those few schools that have found ways to make special education work, and how they do that. Good educators are the only people who are likely to get us out of this mess. The lawyers, as thoughtful and dedicated as they often are, just follow the rules, and that didn't get David Henck and his parents anywhere.