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Analysis of Henrico County School Board v. R. T.
by Peter W. D. Wright, Esq.

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On May 26, 2006, in School Board of Henrico County VA v. R.T., a minor, Judge Robert Payne of the U.S. District Court of the Eastern District of Virginia issued an extensive pro-child decision on behalf of RT, a child with autism, in a tuition reimbursement case.

On May 27, 2006, the Richmond Times-Dispatch published an article about the case - “School System Loses Autism Case - Judge Faults Henrico - Ruling May Cost Hundreds of Thousands of Dollars"

The decision in Henrico School Board v. R.T. is comprehensive and includes excellent points that can be used in other types of cases on behalf of children with other disabilities. The decision is on the level of the comprehensive decisions in Zachary Deal v. Hamilton County Tennessee and Michael M v. Kanawha West Virginia and provides good quotes and logic to use in briefs and judicial decisions.

R.T. includes a discussion of the Burden of Proof and Burden of Persuasion issue after the U. S. Supreme Court’s ruling in Schaffer v. Weast. The decision includes a comprehensive discussion of autism, TEACCH, Applied Behavioral Analysis (ABA), the “window of opportunity” to learn language, the failure to include IEP goals that address the child’s unique needs, and the need to rely on objective factors such as actual educational progress.

The Court also discussed the balance between the requirement to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE). The decision also described what deference, if any, should be offered to school board programs and testimony from school board witnesses.

Henrico County is part of the Greater Richmond Virginia area. Compared to other school districts in Virginia, many special education attorneys view Henrico as a fairly litigious jurisdiction. In this decision, the Court slammed the elected School Board for their “inertia” and their failure to apply replicable research and use proven methods of teaching and learning in educating children with disabilities.

"[T]he Court finds that the School Board’s conduct in this matter reflects the inertia to which Congress was referring when it wrote in the IDEA that ‘the implementation of this chapter has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.’ 20 U. S. C. § 1400(c)(4). (Reference: Wrightslaw: IDEA 2004, page 30) While RT may have made progress in certain self-help skills such as toileting, walking in line, throwing out trash, and sitting still in his chair, progress must be gauged against reasonably accurate evaluations of a child’s potential. See Rowley, 458 U. S. at 202."

"Where, as in this case, it is known that a different educational method has enabled a child protected by the IDEA to make real educational progress, the School Board may not dismiss that method with merely conclusory remarks in an IEP."


RT is a child with autism. In the Fall of 2002, his parents removed him from the public school special education program and placed him into the Faison School, where he remained until March, 2006. The judge found that “At the Faison School, RT flourished” and made “rapid and significant progress.” Within a few months, RT went from being a nonverbal child to speaking at least 100 words. The parents sued for tuition reimbursement.

The Faison School is a small private special education school that uses the Applied Behavior Analysis approach (ABA) to educate children with autism. The Faison School was featured in Surviving Due Process: Stephen Jeffers v. School Board, the Wrightslaw DVD video of a special education due process hearing. Dr. Donald Oswald and Dawn Hendricks were witnesses for RT and were also witnesses in Surviving Due Process: Stephen Jeffers v. School Board. (See cast of characters) The Stephen Jeffers case was based on the ZP v. Henrico School Board case. ZP was ultimately decided by the U. S. Court of Appeals for the Fourth Circuit. Like RT and his parents, ZP and his parents prevailed.

In School Board of Henrico County VA v. R.T., the Court discussed at length the nature of autism and differences between the TEACCH program and the ABA / Lovaas approach. While this case focused on methods of educating children with autism, the case and discussion could have easily been about the merits of using a whole language “Reading Recovery” approach v. an Orton-Gillingham approach for a child with a language learning disability.

In School Board of Henrico County VA v. R.T., the Court held that the parents are entitled to reimbursement for the 2002 - 2003 school year and Extended School Year services during the Summer of 2003. For the relief governing subsequent years, see the subhead “Personal Liability for Attorney” near the end of this article.

Deference to School Board

Judge Payne analyzed how much “deference” a Hearing Officer or Administrative Law Judge must give to school board programs and witnesses, as contrasted with private programs and expert witnesses called by the parents. He noted that “The School Board also argues that the Hearing Officer erred as a matter of law in not according the opinions of the School Board’s educators the deference to which they are entitled. Judge Payne wrote:

“The Hearing Officer also explained in sufficient and specific detail why he chose not to credit the testimony of the School Board’s witnesses. For example, the hearing officer did not credit Dr. Driver because she spent only 40 minutes observing RT, did not credit Dara Butler because she could not remember certain key facts or could not answer certain questions on the stand, and did not credit Patricia Nelson because her testimony contradicted her own prior reports about RT.”

He discussed anecdotal evidence and testimony, as contrasted with the systemic data collection in ABA, and wrote that “Ms. Butler’s assessment of RT is entitled to little weight because it is based on anecdotal, rather than systematic, data collection ...”

The Court was clearly impressed with RT’s mother: “Mrs. T.’s testimony is a specific and careful account of her discovery of her son’s disabilities, the hard work she put into understanding autism and autism education, the hours spent designing and implementing the home-ABA program, and the repeated efforts to make the school officials aware of her concerns about RT’s lack of progress. The Court also finds credible Mrs. T.’s testimony, discussed at greater length below, about her observations at Twin Hickory the day that the parents observed RT there.”

TEACCH v. ABA / Lovaas

In the discussion of TEACCH, the Court found:

"The instruction under TEACCH in this class emphasized fine motor, gross motor, social, self-help, communication, and pre-academic skills.

"Ms. Butler testified that students do not need attending skills when they enter her class because she teaches those skills. However, that statement is refuted by the testimony of Dr. Carlson, Ms. Rusyniak, Ms. St. Amand, and Dr. Oswald all of whom stated that teaching attending skills requires time-intensive one-on-one instruction for far greater than fifteen minutes per day, which was the amount of one-on-one time that RT received at Twin Hickory.

"Ms. Butler also testified that other autistic children had progressed in her class and transitioned into non-autistic kindergartens. The Hearing Officer did not give this statement great weight, and the Court finds that with no additional record evidence to support or relate the other students’ circumstances to RT’s circumstances, it cannot be given effect in the decisional calculus.

"Ms. Butler also testified that RT occasionally engaged in stimming, but could physically attend for up to 30 minutes. She also stated that his visual attendance improved from one second to three or four seconds in the several weeks he was at Twin Hickory. Ms. Butler recorded RT’s work on his goals at the end of each day and sent notes home to inform the parents about each child’s progress.

"Testimony by Ms. St. Amand, Ms. Rusyniak, Mrs. T., and Dr. Carlson revealed that after-the-fact anecdotal data is far less reliable than recording a child’s responses as the instruction unfolds. Based on her notes, Ms. Butler expressed the opinion that RT had made progress in her class. However, the Court finds that Ms. Butler’s assessment of RT is entitled to little weight because it is based on anecdotal, rather than systematic, data collection.

. . .

"Carrie Anne St. Amand, the speech therapist who worked for the Faison School and who has researched the TEACCH method extensively, stated that “[t]he TEACCH methodology does not have any scientifically validated evidence to support itself,” whereas ABA therapy was one, among several, scientifically validated methods of teaching autistic children.

"The record presents a convincing demonstration that the TEACCH method was not appropriate for instructing RT, considering the level of RT’s basic learning skills (imitation and joint attention skills), and his degree of stimming. Likewise, the record makes a convincing case that the methodology was not appropriate to teach RT the more complex language, pre-writing, and academic skills needed to transition towards education in the natural environment.

"Notwithstanding the rather convincing record criticisms of the TEACCH method in general, the Court does not make any findings of fact as to the appropriateness in general of the TEACCH method because, to the extent that the TEACCH method is at issue here, the issue is whether that method, as used at Twin Hickory pursuant to the November 2002 IEP, was appropriate to educate RT."

In the discussion of the ABA approach, the Court reported:

"As “the most widely researched treatment approach,” Siegel, supra, 23
(SB-3), Lovaas therapy, named after its pioneer O. Ivar Lovaas, has spawned several methods, including Applied Behavioral Analysis, Discrete Trial Training, and Intensive Behavior Intervention, of teaching autistic children the basic building blocks that are required for learning in the natural environment. Siegel lists the goal of Lovaas-based methods as “teach[ing] [the] child how to learn focusing on developing skills in attending, imitation, receptive/expressive language, pre-academics, and self-help. “ Id. (emphasis in original).

"Testimony by the experts at the administrative hearing, as well as the publications submitted as evidence, demonstrates that ABA therapy entails lengthy and intensive one-on-one instruction by a trained teacher with the autistic student. Goals are highly defined and broken down into small discrete components.

"The teacher gives an instruction to the student, who responds either compliantly, non-compliantly, or with delay, and the teacher either responds immediately to correct the non-compliant response, praises and rewards an immediate compliant response, or delays the response in the case of the student’s delay. Repetitive practice aims to teach the student the skill.

"Instructors maintain detailed data, recording each response by the student as it is made. Once several discrete skills are mastered separately, the tasks are intermingled to develop so-called “discrimination” skills. ABA is time intensive.

"All the witnesses’ knowledgeable in ABA therapy testified that, at least, six hours of ABA therapy year round would be required for a student like RT to reach normal grade level."

Burden of Proof / Persuasion

The Court dispensed with the School Board’s argument that the Hearing Officer erroneously assigned the Burden of Proof to the school system:

In Schaffer v. Weast, 126 S. Ct. 528 (2005), the Supreme Court held that the burden of proof in an administrative due process hearing under the IDEA is on the party seeking relief. Id. at 531 ... [T]he the Hearing Officer heard all the evidence, weighed it thoroughly, found that the parents’ evidence was more credible and persuasive than that offered by the School Board, and then rested his decision on that evidence. The Hearing Officer held that “the November, 2002 IEP does not provide this student a free and appropriate education as it was not reasonably calculated to provide him educational benefit.

"This holding shows that, without regard to the order of presentation, the evidence established that the IEP was inappropriate. The Hearing Officer also found that the parents won decisively. Because a ruling on the inappropriateness of an IEP is based on a preponderance of evidence, and because the hearing officer found that the November IEP was decisively inappropriate, the parents met their burden of proof."

Findings of Fact: "IEP Not Reasonably Calculated to Provide
RT with Requisite Benefit"

The Court found:

[B]y a preponderance of the evidence that the November 4, 2002 IEP was not reasonably calculated to provide RT with the requisite benefit. See Rowley, 458 U. S. at 207. The evidence demonstrated clearly that in the fall of 2002 RT engaged in a high frequency of self-stimulatory behaviors that interfered with his ability to learn, lacked all but the most basic attending skills, did not possess joint attention or imitation skills. Absent these skills, and until the stimming was brought under control, RT could not make any more than de minimis educational progress.

The preponderance of the evidence also demonstrated that for RT to learn these skills and to stop stimming, RT required a rigorous, intensive education program of between 20 and 40 hours of instruction per week. The fifteen hours of instruction provided by the November IEP was insufficient.

Moreover, the preponderance of the evidence demonstrated that to learn attending skills, reduce the stimming, and learn imitation skills, RT required a highly structured, highly focused education methodology such as ABA therapy in which RT would receive intensive one-on-one instruction.

The TEACCH program at Twin Hickory was not designed to, did not, and could not provide RT with this type of instruction. And, in the fall of 2002, the School Board understood that fact.

Personal Liability for Attorney!

At the conclusion of the decision, the Court threatened the attorneys with personal financial sanctions. Unresolved issues included whether appropriate IEPs were offered by the school district later and whether Henrico County would be responsible for tuition at the Faison School after the initial year.

The Court noted, “the parties dispute the facts surrounding the alleged proposals and rejections of IEPs for the subsequent years. The Court has not yet received or heard any evidence on those disputed points. Thus, as to the subsequent years, it is necessary to hold an additional evidentiary hearing and order accompanying briefing.”

The Court provided guidance about IEPs generated after an initial IEP in litigation. The Judge explained that the law is clear that “the party who loses before the district court on the merits of the appropriateness of the IEP for the initial year challenged has the ‘burden to produce evidence and persuade the court of changed circumstances that render the district court’s determination as to the initial year inappropriate for guiding its order of relief for subsequent years.’”

Thus, the burden is clearly on the Henrico County School Board. To determine if IEPs generated by Henrico County Public School after the inadequate 2002 IEP are appropriate, the Court commented, “the parties have expressed divergent views on such basic points as whether an IEP was proposed (for 2003-04) and when an IEP was proposed (for 2004-05). Facts of that sort are easily ascertainable, and it is simply not acceptable to have further delay and more litigation over those points and like matters. Thus, counsel are instructed to resolve such matters by agreement, and they are advised that, if the Court is required to resolve matters of that sort, the losing counsel will be required personally to pay the cost of litigating them.”

Meet the Attorneys: Bill Hurd, Siran Falders, Adrienne Volenik

RT and his parents were represented by Bill Hurd and Siran Falders of the Troutman Sanders Law Firm in Richmond, Virginia in conjunction with Adrienne Volenik of the University of Richmond Law School’s Disability Law Clinic.

Bill Hurd also represented Brian Schaffer before the U. S. Supreme Court in Schaffer v. Weast.

© Copyright 2006 Peter W. D. Wright, Deltaville, Virginia

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Created: 05/31/06
Revised: 00/00/06

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