March 30, 2023, United States Department of Education (USDOE) publicly released two new policy letters:
POLICY LETTER: March 2, 2023, to Oettinger
POLICY LETTER: March 17, 2023, to Nix
Perez v Sturgis: Supreme Court Rules 9-0 in Favor of Michigan Student Who Was Denied Appropriate Special Education
In a rare 9-0 decision, the United States Supreme Court ruled unanimously in favor of Petitioner Miguel Luna Perez: An Americans with Disabilities Act lawsuit seeking compensatory damages for the denial of a free and appropriate education may proceed without exhausting the administrative processes of the Individuals with Disabilities Education Act because the remedy sought is not one IDEA provides.
Today, just two months after oral arguments were presented, Justice Gorsuch delivered the opinion of the Court, which had to decide 1) whether, and in what circumstances, courts should excuse further exhaustion of the Individuals with Disabilities Education Act’s (IDEA) administrative proceedings under Section 1415(l) when such proceedings would be futile, and 2) whether Section 1415(l) requires exhaustion of a non-IDEA claim seeking money damages that are not available under the IDEA.
The case was based on the experiences of Miguel Luna Perez, who was denied a Free Appropriate Public Education (FAPE) for years while attending Sturgis (Michigan) Public Schools (SPS). For 12 years, SPS advanced Miguel Luna Perez from grade to grade and inflated his grades to the point he repeatedly made honor roll, even though he couldn’t read or write—and then just before graduation told his family he would receive a certificate of completion but not a high school diploma.
Office for Civil Rights vs. Virginia Dept. of Ed: Two Agencies, Two Investigations, Two Very Different Outcomes, Part I
In 2020, Virginia Department of Education (VDOE) received a systemic complaint against Fairfax County Public Schools (FCPS). In response, it refused to investigate some of the allegations, changed and/or ignored other allegations, and ultimately found FCPS in compliance.
In 2022, Office for Civil Rights (OCR) found FCPS at fault for years-long systemic noncompliance, based on some of the very allegations filed in the 2020 systemic complaint.
What happened? How could VDOE make a finding of compliance in 2020, while OCR made a finding of noncompliance in 2022?
The answer: VDOE failed to investigate credible allegations of noncompliance and failed to comply with 300.152(4), which requires it to “review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part”, and FCPS withheld information.
FCPS Reports List 400+ Special Education Violations; VDOE Refuses to Investigate
7.17.20: Article first published. 1.18.23: New introduction added (in italics below). 3.15.23: Updated to include a third paragraph to the introduction below, addressing the U.S. Department of Education’s decision to expand monitoring of Virginia Department of Education and its continued noncompliance.
As I type this, oral arguments for the case Perez v Sturgis are being held in the Supreme Court. Reading about Sturgis Public Schools’ failures to address the unique needs of Miguel Luna Perez is both heartbreaking and horrifying. It is a reminder, too, that the special education system is broken. The recourse offered isn’t adequate and the agencies and individuals responsible for holding state and local education agencies accountable continuously fail children themselves.
Almost five years ago, the Virginia Department of Education refused to investigate 400+ cases of noncompliance in Fairfax County Public Schools. To date, that hasn’t changed. The article below was written in 2020, a month after the United States Department of Education released a Differentiated Monitoring Support letter on Virginia. VDOE had 90 days to come into compliances. Almost three years later, the noncompliance continues, as does USDOE’s failure to hold VDOE accountable and VDOE’s failure to hold FCPS and other counties state-wide accountable for their noncompliance. November 30, 2022, Office for Civil Rights found FCPS in massive noncompliance, yet even as it was investigated, even as it negotiated its resolution agreement with OCR, and even as its findings released, FCPS continued its noncompliance—and VDOE has remained silent.
The Language of IEPs and 504s: Yes, You Have to Define “Accessible”
Accessible is another of those words to consider inserting every chance you get.
If something is accessible, it is often an alternative method of access.
For example, a student might need a ramp and an elevator as alternatives to the stairs used by his peers.
Another student might need Braille or large text as an alternative to the text provided to her peers.
U.S. Dept. of Education Puts Virginia on Notice: Get into Compliance or Face Sanctions
***BREAKING NEWS***
Just weeks before Jillian Balow announced her resignation as Virginia Superintendent of Public Education, United States Department of Education Office of Special Education Programs put Virginia Department of Education on Notice: Get into compliance or face sanctions.
In a January 17, 2023, letter from USDOE OSEP to Balow (obtained today via a FOIA request), USDOE OSEP warned VDOE:
“If VDOE is unable to demonstrate full compliance with the IDEA requirements identified in OSEP’s monitoring report, this could result in the imposition of Specific Conditions on VDOE’s IDEA Part B grant award and could affect VDOE’s determination under section 616(d) of IDEA.”
How to Unredact the Redactions
If you’ve ever submitted a Freedom of Information Act request (FOIA), you’re familiar with the heavy-handed redactions of some organizations.
How do you access what’s behind the redactions?
Often, the answer is: You can’t. The redactions aren’t reversible. But, sometimes . . .
Fairfax County Public Schools Continues to Violate FERPA; FCPS Released Personally-Identifiable Information for 110 More Students
Fairfax County Public Schools continues its longstanding noncompliance of Family Educational Rights and Privacy Act regulations by once again failing to maintain the security of personally identifiable information related to students.
This time, it released unredacted records for the 2022-23 math and reading SOL records for 74 students and the reading records for 36 students.