Fight Over Payment for Tutoring Fairfax Special-Ed Student Marks Growing Trend

By Michael Alison Chandler
Washington Post Staff Writer
Sunday, August 30, 2009

The day after Christmas in 2002, two Fairfax County police officers pulled onto Jacqueline Simchick's snowy Clifton cul-de-sac and handed her a court summons.

The charge? Failing to educate her son. The retired Army officer had taken 14-year-old Matthew out of public school that summer. After five years in a program for mentally disabled students, he could say only a dozen words and could not count past six.

Jacqueline and her husband, Carl, thought their son could do better. So they devised an education plan with instruction from a high-priced tutoring center in downtown Washington. They planned to send the Fairfax school system a bill.

But Fairfax resisted. The tutoring center was not an accredited school, and Fairfax school officials said the family was defying compulsory attendance laws. When the knock on the door came, Simchick said, she was not surprised; she was angry. "It's just amazing that this is how they treat parents," she said.

A judge quickly threw out the criminal charge. But for seven years the school system and the Simchicks have waged an expensive and bitter battle over who should pay for Matthew's tutoring. The Simchicks estimate they have spent more than $700,000 in legal fees and school costs. School system officials declined to comment on the specifics of a pending case. Its legal fees continue to mount, too.

Even now, with Matthew nearing the end of his formal schooling, a resolution remains elusive. After a series of appeals, a federal district court ruled this month that the Simchicks should be partially reimbursed for Matthew's private education. Lawyers on both sides are hashing out the details. The Simchicks are considering another appeal.

Although the length and cost of the Simchicks' fight with the Fairfax school system might be unusual, they illustrate a growing trend. Decisions about who should pay for private school costs are among the most contentious in special education. Most disagreements are resolved through mediation or administrative hearings. But with large sums at stake, more of these disputes are ending up in court.

About 1,100 special education cases were reported in state or federal courts from 2000 through March, up more than 50 percent from the 700 decisions issued in the 1990s, said Perry A. Zirkel, a professor of law and education at Lehigh University who tracks such litigation.

The cases are concentrated in a few parts of the country. The District, with a history of litigation and poor services, is among them, but suburbs of major metropolitan areas, where parent have high expectations and deep pockets, also tend to be hot spots.

Schools are required by federal law to provide a free and appropriate education for the country's more than 6 million special education students. But parents are not entitled to "write a prescription for an ideal education and to have the prescription filled at the public expense," the Fairfax school system argued in legal documents in 2004.

Fairfax officials said they try to be proactive so they can avoid costly, protracted disputes. The school system reorganized this year to create 25 positions to develop partnerships with parents and build education plans for its 24,000 special education students.

Special education law is complex, and it's often difficult for parents to prevail in court, advocates say. Peter Wright, a lawyer and parent advocate, described special education litigation as "a mixture of divorce, medical malpractice and wrongful death cases. . . . It's a battle of experts, with intense emotions and both sides feeling betrayed by the other."

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