Helpful Information from FCPS Lawyer John Cafferky, which You Won’t Find in VDOE’s “Parents’ Guide to Special Education Dispute Resolution”

Updated January 3, 2024, to include the question and answer to D-18 in the U.S. Department of Education’s Office of Special Education Programming’s ” July 23, 2013, “Memo and Q&A on Dispute Resolution” (see end of article).

In 2008, Virginia Department of Education issued “2008 Parents’ Guide to Special Education Dispute Resolution.” Although a lot’s changed in the past 15 years, the guide “designed to assist parents in understanding Virginia’s dispute resolution systems of mediation, complaints, and due process hearings” has remained the same.
The following is helpful information that I hope VDOE considers should it revise the guide. It comes from advice that long-time Fairfax County Public Schools lawyer John Cafferky provided to FCPS staff. In its 2008 guide, VDOE acknowledged John on a list of individuals who “contributed to the development of this document and/or who served as a reviewer.” Hence, it seems fitting that the following advice be considered for a future edition.

Culture of Cover-Up Continues in FCPS; Superintendent Admits Systemic Problem, Staff Testify Otherwise to VDOE

The more things change, the more things stay the same in Fairfax County Public Schools (FCPS).

Within two hours of Superintendent Michelle Reid taking the extraordinary step of breaking with FCPS’ tradition of covering up noncompliance, her staff continued along the old, traditional path.

Breaking with FCPS Tradition, Superintendent Michelle Reid Chooses Systemic Change Instead of Staying the Course

Superintendent Michelle Reid just did what no FCPS superintendent or school board member has ever done (at least not to my knowledge).

1. Admitted FCPS is at fault for systemic FERPA noncompliance (maintenance of, access to, and security of student educational records) and is owning the systemic noncompliance;

2. Hired an independent law firm to do an investigation, committed to sharing the findings of the investigation, saw that the investigation was completed in what to my knowledge is record time for FCPS; and today shared a summary of the findings;

3. Committed to fully addressing the noncompliance and implementing the changes recommended as a part of the investigation findings;

UPDATED 12.13.23—Pro Tip: Don’t Believe Everything Fairfax County Public Schools Tells You

This article was published 12.12.23. It was updated 12.13.23 to include the message from Superintendent Michelle Reid, which FCPS posted to its site on 12.12.23.

The one thing that can be said about Fairfax County Public Schools (FCPS) is that it is consistent. When it engages in noncompliance, rather than engaging in immediate transparency and honesty, it crafts messages that lead the public to believe someone else is at fault.

Why am I mentioning this?

Turns out FCPS left out some key information, such as that I have never and will never publish private information about kids—but I will publish information showing FCPS retaliates, is in noncompliance, and intentionally pushes inappropriate programs onto kids.

VDOE and FCPS Failing Streak: Seven Years of Failing to Prevent Inadvertent Disclosure

For at least seven years, Fairfax County Public Schools (FCPS) and Fairfax County School Board (FCSB) have failed to take sufficient precautions to prevent inadvertent disclosure.

For at least five years, FCPS, FCSB, and Virginia Department of Education (VDOE) have failed to stop the inadvertent disclosures, even though VDOE and/or U.S. Department of Education’s (USDOE) Student Privacy Police Office (SPPO) have repeatedly found FCPS at fault for failure to take sufficient precautions to prevent inadvertent disclosure. Not even losing a lawsuit in 2021, during which Fairfax County Circuit Court Judge Richard E. Gardiner pointed out FCSB’s failures, stopped FCPS and FCSB from future failures to take sufficient precautions to prevent inadvertent disclosure.

The irony is, while FCPS and FCSB have spent years failing to prevent inadvertent disclosures, FCPS school officials have spent years intentionally engaging in bad faith activities designed to prevent disclosure of other records from being responsive to FERPA and FOIA requests.

Update 12.3.23—Fairfax County Public Schools Trains Staff to Thwart FERPA Requests: Don’t Put it in Writing

1.9.23: Article first published. 12.3.23: Article updated. Fairfax County Public Schools (FCPS) has a history of training staff to take actions that prevent information being obtained via Freedom of Information Act (FOIA) and Family Educational Rights and Privacy Act (FERPA) requests. Under FERPA, parents have the right to inspect their children’s education records. Under FOIA, parents have the right to access other records unrelated to their children as well as records related to their children, which aren’t considered educational records. However, if there’s nothing in writing, if students names are intentionally changed to initials and/or nicknames, or if staff include lawyers on emails just so they can claim that the records are privileged, neither parents nor students can access them.
VDOE state complaint tracking logs

Updated 11.21.23—FOIA: Virginia Department of Education State Complaint Tracking Logs, 2014-2023

November 8, 2023, I included a request for volunteers in the article below. I’d like to thank the volunteer who helped pull together the data provided by VDOE, for 2014-15, 2015-16, 2016-17, and 2017-18.
The link to the spreadsheets pulled together by the volunteer is being added here, with the understanding that the data needs doublechecking, as well as more slicing and dicing to identify trends. Help still is needed. If you’re interested in helping, please let me know.

September 2023, Council of Parent Attorneys and Advocates (COPAA) released a report of its in-depth look at state complaints. Its findings aren’t surprising. Parents who believe their local education agency (LEA) to be in noncompliance with Individuals with Disabilities Education Act (IDEA), can seek remedies under IDEA’s dispute resolution processes. However, those processes—such as filing state complaints—are stacked against parents. VDOE’s state complaint tracking logs provide a portrait of a state heavy on dismissals and findings in favor of LEAs.

UPDATED 11.20.23—VDOE FOIA Response: Independent Evaluations of Virginia Department of Education’s Special Education Program

*Thank you to the three parents who submitted FOIA requests for this information and shared it with Special Education Action. 10.8.23: Article first published.
11.20.23: Article updated to include original report submitted by Dr. Robert Pasternack to Dr. Lisa Coons, as well as emails between Robert and Lisa regarding the first final report, and invoices related to both reports.
Virginia Department of Education (VDOE) released two independent evaluations of its special education program. The evaluations were done by Dr. Robert Pasternack, Sam Howarth, and Nathan Levenson at the request of Superintendent of Public Instruction Dr. Lisa Coons. The findings aren’t a surprise. In Virginia, educators and families are two ends of the same burning match—and VDOE fuels the fire. Rather than being the “North Star” guiding educators and bridging the gap between families and educators, VDOE’s actions and inactions continue to increase the divide.