She said Chesterfield failed her daughter. Now she wants them to pay for private school.

CHESTERFIELD COUNTY, Va. -- A Chesterfield family has filed a request for a due process hearing asking for Chesterfield County Public Schools (CCPS) to cover their daughter’s private education after they said the school system failed their child.

“I want [Chesterfield County] to uphold their end of the bargain. I want them to give my child an education and I want them to acknowledge that it's their duty to do so and if they can't do it within their building, then they need to provide her with private placement and they can't there's nothing that they can do to undo the damage that they already did,” Emily Klein said.

The Kleins said they disenrolled their daughter Anna from Old Hundred Elementary School and enrolled her in The New Community School in Richmond despite debate between the parties over the school being on the Virginia Department of Education’s approved list.

“I feel like the biggest change is the classwork,” Anna Klein, now a 6th-grade student, said. “We get a lot more help because there are less people in our class. Our teachers can help us so much more and it's not easier, but because we have more help and because we get to do it with partners, it's just better. It's definitely not as stressful.”

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The 11-year-old was identified as having dyslexia in third grade. However, her family said they have been fighting since kindergarten to get Anna the proper special education services she needed.

The Kleins were granted a hearing for a Free Appropriate Public Education (FAPE) under the Individuals with Disabilities Education Act (IDEA).

“I think there are a number of ways in which they did not do what the statute requires, starting with failing to identify her as a child with a disability and again, the evidence of that, as we laid out in our complaint was very strong, dating all the way back to kindergarten,” the Kleins' attorney Todd Ratner said.

The 182-page complaint highlights Anna’s last six years in Chesterfield Public Schools.

It details how her parents feel the county fell short in providing services for Anna.

Despite being identified as a gifted student; it details her struggles with basic skills stating she could not spell or read simple words.

“They had their chance,” Emily Klein said. “They've left her so far behind. I recently found out they passed her along with As. They said she was on a much higher reading level. She's just beginning sixth grade and she's on a third-grade reading level. That's not okay."

“The parents, in this case, pulled her out of school, put her in a private school and said, now you pay for it and that's problematic,” retired Dinwiddie County School Superintendent Dr. Charles Maranzano said.

Maranzano said it’s best to exhaust all remedies before taking what he calls that radical step.

“There's a built-in amount of natural tension when parents are requesting specific, special educational services and there are basically three reasons for that," he said. "One, would be the need for the services, does the student qualify under IDEA or the Individual Disabilities Education Act. Two, what are the reasonable scope of services necessary to help that student achieve or to implement the plan for the student to succeed academically and then third, what are the results of those efforts."

“Typically, a parent wants the moon. They want everything they can possibly get; I don't blame them. I've sat on both sides of the table. I understand,” he added. “I felt as I read through the brief that the girl was clearly shortchanged. I feel very, very solidly that she was deserving of the service."

What Maranzano and the Kleins' attorneys said the family did not deserve was the district’s handling of Anna’s Individualized Education Program or IEP during the pandemic.

“The federal guidance was that we're not offering any waivers of any of the local school divisions' obligations under this statute, meaning it doesn't matter what you decide to do for other students, your obligation remains to provide a Free Appropriate Public Education to these students,” said Ratner.

The CBS 6 Problem Solvers researched the guidance and reached out to the US Department of Education for comment.

The Problem Solvers found guidance on the topic dated March 21, 2020. The U.S. Department of Education also provided this guidance after the Problem Solvers inquiry.

The Virginia Department of Education directed the Problem Solver to its special education and student services frequently asked questions and specifically #6 which covers amended IEPs.

“The school district, at least Chesterfield asked families to voluntarily agree to a reduced amount of services because schools were not functioning as they were and there was no legal basis for families to do that, or really, for the schools to ask for that and so, fortunately, in our case, the client said, well, no, we're not gonna sign this. Anna needs what she needs. If you proposed this before, there's no reason to arbitrarily cut it in half and who knows how many students with IEPs actually signed that and agreed to oh, yeah, okay, we understand we’ll take less than what we're entitled to now and I think, you know, theoretically, at least it could impact every student in Chesterfield County who has an IEP,” said Ratner.

“I think they're at risk, the school division, clearly they are accepting federal funds. Okay, so then to abrogate your responsibility under IDEA as you're accepting the funding makes no sense. I think they're wide open,” said Maranzano.

The CBS 6 Problem Solvers reached out to Chesterfield County Public Schools.

“We respectfully decline to comment," Chesterfield Schools spokesperson Shawn Smith said.

Under the Freedom of Information Act, the CBS 6 Problem Solvers confirmed about 13% of students held IEPs in the county each year for the last three years:

• 8,207 students in the 2019-2020 school year
• 8,163 students in the 2020-2021 school year
• 8,082 students in the 2021-2022 school year

“What's really problematic in that brief is that Chesterfield tried to abrogate its responsibilities during COVID, when schools were partially closed, or when they were fully closed by basically rewriting the IEPs,” Maranzano said. “I think there's a wide-open path here for negligence on behalf of Chesterfield. They spent a lot of effort trying to say we're not responsible for educating your child at all, the children special ed, by the way, and it doesn't work, like that. As a school superintendent, someone who's over overseen many, many cases, we have an obligation and sometimes those are expensive obligations. But we have got to make sure there are mechanisms in place so that a student can demonstrate success."

The Kleins did not agree to either of Anna’s proposed IEPs during the pandemic because they said it violated their rights.

“We're coerced into signing a document to basically get rid of our child's rights and sign away,” Emily Klein said. “What they were supposed to provide us, to the point that they even when we come back, and I didn't sign it they offered me half of her services. They wanted me to sign a document saying we're gonna cut our hours in half.”

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The Kleins' due process hearing is scheduled for March 21-25 and March 28-30.

The family is asking for:

a. Finding that CCPS violated the IDEA by failing to offer Anna an appropriate IEP and placement for the 2021-2022 school year.

b. Finding that, in the 2019-2020 and 2020-2021 school years, CCPS denied Anna FAPE by material failures to implement important aspects of the operative IEPs for those years.

c. Finding that CCPS violated the IDEA and denied FAPE by its material procedural violations, considered either individually or as a whole.

d. Finding that CCPS retaliated against Anna and her family for exercising statutorily-protected rights.

e. Finding that the private placement at The New Community School is reasonably calculated to enable Anna to receive educational benefit and thereby designating The New Community School Anna’s “stay-put” placement in accordance with the pendant placement statutory provision and interpretive case law. 154

f. Finding that CCPS intentionally, in bad faith, and/or with gross misjudgment, denied Anna reasonable accommodations and discriminated against her individually on the basis of her disability; and/or that CCPS put into effect a policy that facially discriminated against students with disabilities, and that such policy lacked any rational basis.

g. Ordering that CCPS provide Anna with compensatory education to remedy the previously described violations during the 2019-2020 and 2020-2021 school years.

h. Ordering CCPS to pay reimbursement for The New Community School tuition as well as related expenses incurred in connection with Anna’s attendance at The New Community School, including but not limited to transportation expenses (the period covered by such reimbursement to be from August 24, 2021through such date as CCPS assumes responsibility for paying said expenses directly).

i. Ordering such other relief as is appropriate as shown by the evidence.