The Virginia Department of Education (VDOE) continues to turn a blind eye toward noncompliance within Virginia school districts and fails to heed the United States Department of Education’s (USDOE) dictum, “Completely ignoring credible allegations of noncompliance is not a reasonable method of exercising the State’s general supervisory responsibilities.”
February 28. 2018, documentation of over 400+ special education violations was provided to the Virginia Department of Education (VDOE). The violations were committed by Fairfax County Public Schools (FCPS) and admitted to in unredacted internal FCPS documents title “Hot Topics“. FCPS inadvertently provided to me. I sent the document to VDOE. Per the Letter of Inquiry (LOI) posted below, VDOE chose not to investigate. (Additional Reading: “FCPS Reports List 400+ Special Education Violations; VDOE Refuses to Investigate“.
Click on image below to view full document.
Two years later, the United States Department of Education (USDOE) Office of Special Education Programs (OSEP) advised VDOE:
Completely ignoring credible allegations of noncompliance is not a reasonable method of exercising the State’s general supervisory responsibilities.
And yet, to date, the “Hot Topics” report remains uninvestigated by VDOE and noncompliance continues.
USDOE OSEP issued a Differentiated Monitoring and Support (DMS) letter about VDOE in June of 2020. In its DMS letter, OSEP called VDOE out on its failures to investigate noncompliance that falls “outside of formal dispute resolution procedures”. In addition, OSEP cited VDOE’s failure to comply with federal regulations regarding independent education evaluations (IEEs). OSEP stated:
“OSEP concludes that the provision of Virginia’s regulation, 8VAC20-81-170(B)(2)(a) and
(e), are inconsistent with 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502, because the State’s
regulation restricts a parent’s right to an IEE at public expense to only those areas in which the
public agency had previously evaluated the child.”
Among OSEP’s required actions, VDOE was to do the following within 90 days of the DMS letter:
Submit to OSEP a copy of a memorandum that the State has issued to all LEAs, parent
advocacy groups, and other interested parties instructing LEAs to comply with
20 U.S.C. 1415(b)(1) and 34 C.F.R. § 300.502(b) by also providing an IEE at public
expense in areas where the LEA previously has not conducted its own evaluation, unless
the LEA has demonstrated, through a due process hearing decision, that its evaluation is
appropriate; and advising that the State will be revising Virginia Administrative Code
8VAC20-81-170(B)(2)(a) and (e), to, at a minimum, remove the word “componentâ€
following the word “evaluation†in accordance with 20 U.S.C. § 1415(b)(1) and
34 C.F.R. § 300.502(b).
Mid-August of 2020 marked about 90 days from the release of the DMS report—and yet school districts like Fairfax County Public Schools (FCPS) continued to deny IEEs. VDOE Superintendent James Lane didn’t issue his Superintendent’s Memo #250-20 about IEEs until September 21, 2020. Thirty weeks and 6 days after OSEP released its DMS letter and 18 weeks after the Superintendent’s memo was released, FCPS made its staff aware of changes related to IEEs. Unfortunately, FCPS presenter Rory Duffield got it wrong when he explained the reason for the change. Rather than explaining that Virginia’s regulations didn’t comply with federal regulations, he inferred to FCPS staff that federal regulations had changed:
The federal guidelines regarding IEE requests and with regards to parent’s rights, specifically as you can kind of read through this slide, is that parents can now ask for an IEE in an area in which their child was not previously assessed.
There wasn’t a change to federal regulations that “now” allowed parents to request IEEs in areas in which their child wasn’t previously assessed. VDOE wasn’t in compliance and either 1) Rory didn’t understand that or 2) he misled FCPS to believe that. (Additional Reading: “Fairfax County Public Schools Failed to Comply with Federal Regulations; Continued to Deny IEEs“)
Bottom line: VDOE failed to monitor and ensure compliance.
Spinning the Facts
Rather than dedicating itself to monitoring noncompliance, VDOE’s Samantha Hollins responded to the DMS letter with an attempt to spin an alternative narrative, to paint OSEP in the wrong. For example, in her ten-page response, Samantha stated:
OSEP wrongly states as factual background the “active participation of the State’s mediation coordinator in the mediation sessions themselves, in addition to the mediator of record.†The Coordinator of Mediation Services, a VDOE employee, does not comediate either with new or experienced mediators. Neither does the Coordinator attend all mediations.
Not true.
In 2016, Art Stewart, who is VDOE’s coordinator of mediation services, was the mediator for the first mediation I requested. His name is on the Agreement to Mediate and other documentation. Although the document states that that I, and the other parties in attendance, requested him to be the moderator, that’s not true either. However, it was my first mediation and I 1) wanted to pick my battles and 2) didn’t understand that he was head of mediation for VDOE and should not have been the mediator whether I (or others) asked him.
Click on image below to view full document.
In addition, she painted a picture of a VDOE that was making changes that would focus “on how well students are performing while continuing to protect their rights”. Yet, since the June 25, 2020, release of OSEP’s DMS letter and the June 19, 2020, release of Samantha’s letter, the privacy violations listed below have occurred – and these are just a small piece of the noncompliance continuing in Virginia. They don’t even include all the failures and noncompliance that has occurred in regard to educating students.
Failures to “Protect their Rights”
9.11.20
Hours after news outlets were already covering the story, FCPS announcement, that “ransomware was placed on some of [FCPS’] technology systems.â€
FCPS later admitted that the hackers Max stole private information from FCPS. Drew Wilder of NBC News Channel 4 in Washington, D.C., confirmed that some of the stolen information included “personal information that includes letters regarding disciplinary actions against 15 different students and their gradesâ€.
June through October 2020
FCPS and two law firms with which it works—Sands Anderson and Blankingship & Keith—failed to secure personally identifiable information on seven occasions in just a four-month period during 2020.
During this period, four due process complaints were filed on behalf of four different children. Their parents requested that their children’s full records be provided. They didn’t request unredacted information about other children (or adults). However, that’s what they received.
Related Reading: “Fairfax County Public Schools, Sands Anderson, and Blankingship & Keith Breach Privacy During Due Process“.
Family #1
FCPS counsel Sands Anderson provided the family numerous unredacted documents related to children attending Willow Springs Elementary School, to include personally identifiable information about students with 504s and students with health conditions.
Related Reading: “FERPA Violation: Willow Springs Elementary School Students’ Privacy Violated“.
Family #2
FCPS counsel Blankingship & Keith sent information related to a subpoena to the wrong family.
Family #3
FCPS gave this family information about students receiving special education services, who are in the class of 2023 at Robinson Secondary School.
The list provides full names, student identification numbers, classes, interventions, recommendations, and class teachers and periods for the students.
Related Reading: “Robinson Secondary School Privacy Breach: FCPS Released Names, ID Numbers of Students Receiving Special Education“.
Family #4
This one is related to a due process complaint I filed.
Between the time I filed the complaint and when the hearing officer submitted her final decision, the following breaches occurred:
- Former Blankingship & Keith lawyer Wesley Allen sent me thumb drives that supposedly held my son’s complete record. He later recalled the thumb drives because he said the included unredacted information about other students. After being called out on this breach, Wesley referred to himself as a “conduitâ€, which I interpreted as him throwing FCPS under the bus.
- Former Blankingship & Keith lawyer Wesley Allen contacted me about a student who is not one of my children.
- FCPS, via Blankingship & Keith, provided personal home addresses, emails, and phone numbers for FCPS staff within its evidence books.
- FCPS’ Dawn Schaefer forwarded me a transcript for another family’s due process pre-hearing conference.
5.6.21
Jane Strong, director of the Office of Special Education and Procedural Support breached a student’s privacy when she emailed six documents related to the student to individuals who should not have received them. This student’s privacy was previously violated when Dawn Schaefer forwarded me a due process hearing transcript related to the student.
Related Reading: “Oops! . . . They Did It Again!; Fairfax County Public Schools Continues to Breach Student Privacy†and “Fairfax County Public Schools, Sands Anderson, and Blankingship & Keith Breach Privacy During Due Process“
5.17.21
South County High School (SCHS) Principal Gary Morris and Due Process & Eligibility Coordinator Dawn Schaefer met with a representative of the U.S. Department of Education, Student Privacy Policy Office (SPPO). Among other things, they spoke about the confidentiality breaches for which FCPS is at fault, and for which the Virginia Department of Education (VDOE) has repeatedly found FCPS in noncompliance.
5.21.21
Just four days after FCPS spoke with USDOE SPPO, SCHS staff member Tina Wrubluski violated the privacy of numerous students when she shared her computer screen during an IEP meeting. Although numerous people kept trying to obtain her attention, Tina continued working away, making document folders related to specific students available for viewing.
Related Reading: “South County High School Breaches Student Confidentiality Again“
6.2.21
The Student Privacy Rights Advisor for the U.S. Department of Education Student Privacy Policy Office (SPPO), who spoke with FCPS on 5.17.21, emailed me that FCPS was found in noncompliance and that FCPS assured her that FCPS staff had received FERPA training:
“We therefore find the that the District take specific actions, these actions include training staff. Specifically, the District failed to obtain prior written consent before disclosing education records to another parent. We also have evidence that the District does not have a policy that would violate FERPA on a regular basis. The District has required school officials complete a FERPA training to ensure that the scope and limitations of FERPA are adhered to. The District completed such training on November 12, 2019, which satisfies the requirements of this Office. Concluding, this Office has received assurance from the District, therefore, we are closing the investigation as the District has completed the required corrective actions.â€
I made the advisor aware of the breaches that took place after the 11.12.19 training, to include the breach that occurred four days after she spoke with FCPS on 5.17.21.
Click on the image below to view it at a larger size.
6.24.21
June 24, 2021, Dawn Azennar, a procedural support liaison, sent an email and a letter about a FCPS student to the wrong person (a FCPS parent in this case). Although the student isn’t mentioned by name, there’s a fair amount of information that would make tracking down the student and family doable. I’ve deleted the student’s birthday and the name of the student’s previous school in the document below.
Craziness: This isn’t the first time FCPS has accidentally emailed this same parent. Just over two months before FCPS sent the parent an internal email in which FCPS admitted fault in relation to an investigation the Office of Civil Rights (OCR) initiated after I filed an OCR complaint. (Read “Office of Civil Rights Opens Investigation of Fairfax County Public Schools – Special Education Action“.)
Related Reading: “Oops! . . . They Did It Again!; Fairfax County Public Schools Continues to Breach Student Privacy“
6.29.21
June 29, 2021, Fairfax County Public Schools (FCPS) breached the privacy of thousands of students attending South County High School, Hayfield Secondary School, Edison High School, West Potomac High School, Lake Braddock Secondary School, and FCPS Online Campus. The breach includes the students’ names, their FCPS identification numbers, their FCPS email addresses, the schools at which they are enrolled, the names of their parents and/or guardians, and the email addresses of their parents and/or guardians.
June 29, 2021, FCPS provided me a thumb drive with documents it stated were in response to FERPA requests I submitted. The thumb drive includes 12 unredacted reports with personally identifiable information related to students and their families. I did not request these reports or any of the personally identifiable information.
Related Reading: “Fairfax County Public Schools Breaches Privacy of Thousands of Students; FERPA Noncompliance Continues“
At What Point Change?
VDOE has known about the rampant noncompliance throughout the state. Ignoring it because it doesn’t come through a traditional complaint process isn’t an option. I tend to agree with USDOE OSEP:
Completely ignoring credible allegations of noncompliance is not a reasonable method of exercising the State’s general supervisory responsibilities.
If you know something is wrong, address it. If you choose to turn a blind eye, please retire from VDOE and make room for people committed to addressing the wrongs that are too often impacting the lives of our children and, in some cases, drilling holes into their souls.
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