Due Process Breakdown: School Division Lawyer’s Opening Statements, John Cafferky 9.30.20

Thank you to everyone who shared and who reached out to me about the recent article “Second Virginia Hearing Officer Rules Reading Program Inappropriate for Student with Dyslexia“.

Today’s article shares more information about how that hearing played out, starting with the opening remarks presented by Fairfax County Public Schools’ (FCPS) counsel John Cafferky of Blankingship & Keith.

John presented his opening statements September 30, 2020, the first day of the due process hearing filed against FCPS.

Among other things, the hearing focused on whether the program “Just Words”, which FCPS proposed four school years in a row for the student who was the focus of the hearing, is appropriate for a student who has Dyslexia.

Going into this hearing, the following was known:

  • Less than a year before, John Cafferky represented FCPS in a previous due process hearing that included a focus on the program “Just Words” being implemented to a different FCPS student who has Dyslexia.
  • Even after that hearing officer’s decision, FCPS continued to propose and provide “Just Words” for students with Dyslexia.
  • When John made his opening statements September 30, 2020, he knew that 1) a previous hearing officer decided “Just Words” is inappropriate for students with Dyslexia and 2) Wilson, the publisher of “Just Words” does not endorse “Just Words” for students with Dyslexia. He and FCPS proceeded anyway, in another attempt to disprove parents who point out that FCPS’ widespread use of “Just Words” with students of all ages and degrees of struggles with Dyslexia is inappropriate.

Transcript & Notes

What follows below is a transcript for John’s opening statements.

I’ve added a few comments here and there, noting the facts John left out of the narrative he was pushing.

First at bat? Evidently if a parent doesn’t file for due process, things must be just fine.

MR. CAFFERKY: Okay. Wonderful. Very good. Bear with me just a moment.

Your Honor, we’re going to — in our evidence here over the next several days, we’re going to focus — and preliminarily let me say that the school system completely disputes and disagrees with what [Parent] has said about what happened in first grade, in second grade, in third grade and frankly elementary school.

That’s not going to be the subject of our evidence here today, or really even middle school. It’s completely clear that as to things that happened with [Student] was in elementary school, frankly as to things that happened when [Student] was in middle school, [Parent] had the opportunity to appeal those and contest those and disagree with those through the hearing process.

In fact, the evidence will show you that she requested a hearing at some point in past and then elected not to pursue it. But there’s a limitation. There’s a two-year limitation period that applies. That limitation — this hearing was requested in late August of this year. And so, that actually lines up with [Student]’s — if you go two years back, [Student] is now beginning his third year, his junior year in high school. So that goes back to the beginning of [Student]’s freshman year of high school. I think it’s just in terms of what is relevant and what can be the basis for a claim here, we need to focus on — and our evidence will focus on, as we think is appropriate, [Student]’s experience, his IEPs and so forth in high school.

NOTE: This is a typical blame-the-parent argument. John blames the parent for the current IEP situation being “complicated”, because the parent withheld full consent to IEPs with which the parent disagreed. This resulted in a number of partial IEPs in addition to a full IEP needing to be implemented. Rather, a question for the school division is why there was so much disagreement and why the school didn’t work with the family establish a mutually agreed upon IEP for the student. Why didn’t the IEP team members educate themselves in order to make informed decisions?

Now it gets a little complicated because [parent] hasn’t agreed to an IEP in several years. So the last agreed upon IEP does come out of middle school.

But in terms of things, of statements that were made by the elementary school principal or things that she disagrees with from the time [Student] was in sixth grade and so forth that you heard a lot about in the opening argument, that’s not the focus, and it shouldn’t be the focus of the evidence that you’re going to hear here today. And that mediated agreement, I believe, for example, is from July 2016. We need to talk about [Student] and [Student]’s needs and [Student]’s accomplishments focusing on the relevant time period which is here since he’s been in high school.

And Your Honor, we think the evidence will show that when you do that, what you’re going to see is that [Student] is a — [Student] is a student. He’s, as I said, a beginning 11th grader at [High School].

[Student] has been identified for a number of years, since at least 2016, I think, as a student with learning disabilities, learning disabilities particularly in the area of reading. But what the evidence is going to show you is that [Student], while he has some deficits in reading, he has a lot of academic strengths, both in reading and other areas.

And insofar as fundamentally what Your Honor has to decide is has [Student] been receiving an appropriate education and has the school system, has the Fairfax County Public Schools and the staff at [High School] offered an appropriate education for [Student] during the last two years and even going forward now into this year.

NOTE: John focuses on the student’s participation in honors and AP classes, and on the student’s good grades, to make the argument that the student is receiving an appropriate education. He neglects to mention that this student has always had good grades. He neglects to mention that when the student was evaluated in 6th grade, he was reading on a 3rd grade level, but ended the year with good grades and passing SOLs.

The answer is unquestionably yes. The answer is unquestionably yes. I mean, you might get the idea from the description you heard or you might not fully appreciate that [Student] is a student who has been, notwithstanding his learning disability, in regular education classes.

And in fact he’s been in a fair number of advanced classes. This is not a student who’s in a full slate of special education classes or self-contained classes. This is a student who’s taking, you know, honors world history, honors geometry, Latin, taking physics this year, regular classes for which he has to do the regular work and for which, where applicable, he takes the regular SOL.

And what you’re going to see from the evidence is [Student] is an A/B student. I mean, he’s almost come close to being a straight A student again in regular classes in freshman year and in sophomore year.

You know, I’m not going to get too much into the legal argument now, but when you look at what is the — and even what has the Supreme Court told us is the benchmark for an appropriate education, it’s a student who’s — where he’s participating in regular classes, advancing from grade to grade, earning passing marks. And [Student] is doing extremely well. He’s doing extremely well, passing his SOLs.

Is [Student] receiving educational benefit? We think the evidence will show you that unquestionably that is the case. . . .

I talked about how well [Student] had done in his classes and in his grades and in his high school SOLs.

NOTE: John states that the student’s IEP progress reports indicate progress, but neglects to state that a large number of the IEP goals are years-old holdovers from stay-put IEPs. The reports don’t show progress. They show a student who has had many of the same goals for years.

But look further. What are other — when you look at other pieces of evidence for how [Student] is doing, his IEP, if you look at his IEP progress reports reporting progress on the goals that he’s had in his IEPs, again what you see there is steady progress and, in many cases, mastery of the goals on his IEP.

Moreover so you’re going to hear, Your Honor, from, in addition to from some witnesses about the IEPs, you’re going to hear from a number of his teachers, special education teachers and regular education teachers because they really have the best handle I would say on how [Student] has benefitted from the education and special education he’s received over these last couple of years, two years in [High School].

But you’re also going to hear from witnesses who are familiar with the educational testing, and in particular the standardized educational testing. And when you look at that, it’s interesting.

NOTE: John states student’s progress on testing through the years, but neglects to state that the parent paid for the student to receive over 200 hours of Lindamood Bell tutoring, as well as tutoring for his high school math courses. He neglects to mention the amount of support the student receives at home from his parents.

As you’ll see, [Student] was tested in 2016, 2017, 2019 and 2020. And what we see there is a steady progression in his educational achievement in all areas, in reading — math and other areas. That’s not to say [Student] doesn’t have some weaknesses. Let’s talk about reading. He does.

Primarily at this point his weakness is in fluency. And there’s no question that he has a weakness in that area. But the good news is [Student] comprehends. He’s able to decode. He has good vocabulary. He has good listening comprehension. And those things have all improved over the last four years since he’s been in the Fairfax County Public Schools, including the last two that he’s been at [High School].

I mean, the good news when it comes to [Student] is that — and again, he has a learning disability. But the glass isn’t half full. The glass is about 90 or 95 percent full.

Note: John states the number of IEP meetings as proof that the parent has been listened to. He neglects to mention 1) the connection between the number IEP meetings and the number of times FCPS evaluated the student (2016, 2017, 2019, and 2020); 2) the connection between the number of IEP meetings and the number of times FCPS was found in noncompliance by the Virginia Department of Education (VDOE) in response to the parent’s 30+ state complaints; 3) the connection between the number of IEP meetings and the required IEP meetings required by VDOE per its corrective action plans; and 4) the connection between the number of IEP meetings and FCPS’ failure to provide the student a comprehensive initial evaluation, which resulted in the school having to re-evaluate him within a few weeks of its initial evaluation. The failure to provide a comprehensive initial evaluation beget additional areas of need being found year after year, which beget additional testing, which beget more IEP meetings.

The school system has offered over the course of the last two years alone or approximately two years, the last two school years alone — in fact, when [Parent] says that she hasn’t been listened to, I’d suggest that the evidence is going to say to you that’s a pretty remarkable statement.

There’s been 25 IEPs. Twenty-five in which the school system has listened to her concerns, tried to accommodate her concerns, explain everything that could possibly be explained, quite honestly.

NOTE: John fails to mention that the parent approved FCPS providing the program “Language Live” to the student – and that 1) the student regressed while taking that elective and 2) the publisher of Language Live recalled the program just after [Student] completed it, because students who received that implementation either needed all of it or none of it. In other words, the student wasted a year on an elective, to receive a program the publisher found problematic itself.

The school system has offered, in addition to the special education support that [Student] receives in the regular classes that he’s in, additional support, a reading class in the area — a separate reading class providing an intensive reading program.

Now the school system, the IEP teams have thought for a number of years this is a good idea for [Student]. We can provide him additional support. It’s been something that’s been offered during, among others, both years in high school and including this year. You’ll hear from the evidence —

HEARING OFFICER: Is this the — is this the Just Words that you’re talking about?

NOTE: This is the argument FCPS uses to get out of including the name of the program in the IEP. The result is that parents don’t know what they are consenting to, because FCPS maintains it gets to choose methodology, and it defines specific programs as methodology.

Cafferky states that the school can choose numerous programs . . . But, fails to mention fidelity. If a school implements three different programs at one time, the student doesn’t benefit from the research from behind the program.

While there were programs discussed before “Just Words”, at the point of the due process, “Just Words” was the only program suggested for the three preceding school years, as well as for the school year in which the hearing occurred, which is the fourth school year.

His comments provide proof, too, that FCPS does not know how to address Dyslexia. You can’t administer three different programs at once, as that can harm the progress of students. The programs must be implemented with fidelity in order for them to work.

MR. CAFFERKY: Well, I’m glad you asked that, Your Honor, because Just Words is one of the programs that has been suggested. But IEPs don’t specify a particular program. You know, there’s a principle that Your Honor is familiar with that school staff have some educational leeway when it comes to a particular methodology.

So there are other programs, reading programs that are available and have been discussed. Just Words is one that the educational experts in the school system have thought would be a good match for {Student]. It’s by no means the only one.

But I want to be clear that is one program that has been suggested. And we think the evidence will show you that when you look at the needs that [Student] has had and the IEP goals that he’s had in a number of areas, historically anyway, comprehension, vocabulary, decoding in addition to fluency, that Just Words is a program that attacks and addresses all of those.

What I was going to say with respect to — but it’s by no means the only program. And, quite honestly, as you’ll hear, a reading class allows the teacher to use one program or more than one program or a combination of programs or even something that’s not specifically a name-brand program.

NOTE: John again fails to note that the student received extensive tutoring and supports paid for by the parents.

Honestly what the evidence you’ll hear is that at this point, many of these skills that [Student] — that [Student] was lower in, comprehension being one, he’s moved from being in the below average range to being in the average range. So he’s improved both absolutely and relatively.

There are obviously — you know, when you get to 10th, 11th grade, you know, there are choices to make in terms of whether you want to take an elective period to take a reading class instead. There, you know, [Student] has some electives, guitar and so forth and so on.

NOTE: John neglects to mention that he lost an earlier due process case related to “Just Words”, in which the hearing officer stated the program to be inappropriate for students with Dyslexia. He fails to mention the reason the parent didn’t accept the program is because it is inappropriate.

But the school system has offered the reading class. The school system has thought the reading class would be appropriate and a good idea. [Parent] has chosen not to have [Student] participate in that. But that doesn’t mean that the school system hasn’t offered an appropriate program.

I think the evidence will show you that Just Words would attack all the areas of IEP goals that [Student] has in the reading area.

NOTE: He circles back to grades, types of classes the student is taking, etc. – and circles back to the problems with the IEP – and back to the student’s grades to say what is happening. He says the student is not “severely reading-disabled”, but yet FCPS wants a student in 11th grade to take a full year-long reading elective. If the student’s struggle isn’t worthy of note, why suggest this program?

And again, we’re in the fortunate situation where the evidence will show you [Student] is not severely reading-disabled.

I think your common — when you hear that this is a student who’s taking regular education and some advanced classes, I think your common sense would tell you that. But it turns out the numbers show you that too. So we think that clearly the evidence will show you that the school system has offered appropriate reading services, appropriate special education.

You’re going to hear from the teachers on the question of — and others on the question of implementation of [Student]’s IEP over the last two years since he’s been in high school.

I want to highlight for Your Honor two things. One is it’s a challenge to — ordinarily we have a last agreed-upon IEP in these sort of cases. [Parent], through her complicated regime of partial consents and qualifiers and disagreements and so forth, the staff is now largely implementing an IEP from almost — well, not almost three years ago, from more than three years ago.

NOTE: While he admits there was noncompliance, he downplays the amount of noncompliance, which include VDOE ruling FCPS in noncompliance on about a dozen complaints in the last two years. And, he indicates that the school has implemented the IEP by stating student has learned and his grades.

The last agreed-upon IEP is from August 2017. So there have been some updates with that and some partial agreements with pieces of that. But we think the evidence will show you that the school system and the dedicated teachers have implemented his IEP.

And again, proof of — the proof of the pudding is in the eating. The proof here is how well [Student] has done and how much he has learned. Has it been perfect? No. I wouldn’t say it’s perfect.

NOTE: John neglects to say that the noncompliance in this case extended into the third quarter of the school year, with the teacher continuing to fail to implement the IEP in full.

And, you know, you’ll hear even in our evidence there have been, in a handful of instances, teachers — the geometry teacher, since [Parent] talked about that, who thinking that she was doing what [Parent] wanted and what [Student] wanted, did something that was a little different than what was in the IEP where we — so I wouldn’t say that there have been no instances where this or that provision of the IEP —

HEARING OFFICER: Is that — is that Ms. Walton?


HEARING OFFICER: Is that the —

MR. CAFFERKY: It is. It is, Your Honor. And what I would say —

NOTE: John neglects to mention that there is nothing in the IEP stating the student will be in a special education class for reading, that this was proposed. The hearing officer uses “methodology” after the lawyer uses it, but a class, nor a program, is a methodology. A program might be based on a methodology, but it isn’t a methodology. He also incorrectly makes the program sound like doubling it up on one day makes it the same as having it every day. This isn’t how it is supposed to be implemented, and it isn’t how the research indicates the program is supposed to be implemented.

HEARING OFFICER: All right. Let me ask you one question before you go on.


HEARING OFFICER: The separate reading class with the intensive reading programs —


HEARING OFFICER: — methodology —


HEARING OFFICER: — is that a special education class?

MR. CAFFERKY: It is, Your Honor. It absolutely is. And so, you’ll see in the IEPs, in the many proposed IEPs, that’s the portion of the IEP that says special education in a special education setting.

So that’s the one class in the IEPs that — where FCPS said, yes, that’s a — that’s an area where [Student] would benefit from being in a separate self-contained or in a separate small special education class. You know, it’s called reading and —

HEARING OFFICER: How many times a week? How many times a week?

MR. CAFFERKY: Well, they have a block schedule. So it is the equivalent — the four or five hours a week is the equivalent of one period a day. I think that at the high school, they have a block schedule.

So it ends up being — and I may have to be corrected from the [High School] people on this. It’s typically every other day just because nowadays most of the school — you know, instead of having, you know, seven periods a day, the way we did at least when I was in school, you know, they have — they double up the periods.

So you have, you know, essentially a double class every other day. So I think — and I’ll defer to the South County people on that. But it would be the equivalent of having one period a day. It’s a special education class. It’s — you know, it’s intensive. It’s small. It’s all those things.

NOTE: John provides incorrect information. The parent previously approved a year-long elective during which the student took Language Live.

As Your Honor asked the question at the beginning, well, what has — what’s his experience been in Just Words. The answer is he hasn’t had any experience in Just Words or any other reading methodology because parents have not agreed to the special education reading class at any point.

NOTE: John goes back to inferring the student has made progress.

The good news is [Student] has continued to learn. He’s continued to do very well. But it is something that the staff still thinks would be — the staff still thinks would be appropriate.

HEARING OFFICER: Now let me ask you one other question before you go forward.

MR. CAFFERKY: Absolutely.

HEARING OFFICER: The August 2017 IEP, you said that’s the last agreed-upon IEP?

MR. CAFFERKY: It is the last agreed-upon IEP when it comes to services. But there are also — there are also a couple of updates. In other words, there were partial agreements. And I’m just looking for my notes here.

But there are partial agreements to later IEPs. That’s the last — let me see if I can find it. I know I have it here someplace. That’s the last agreed-upon IEP. But there are pieces of subsequent IEPs that update I think with the transition period.

HEARING OFFICER: So is the August 2017 IEP the stay-put? Is that a stay-put IEP?

MR. CAFFERKY: Well, I think it is. I think it is, other than as updated by the — HEARING OFFICER: Does it have a addendums? Is that what you mean by updated?

NOTE: John goes back to blaming the parent, rather than state that the disagreements have occurred on both the school’s and parent’s part, but the school won’t budge and consider it might be wrong, hence FCPS spending four school years proposing a reading program that is inappropriate for a student who has Dyslexia.

MR. CAFFERKY: That’s correct, Your Honor. That’s exactly what I mean. But at least as far as services are concerned, that’s the last agreed-upon IEP. But something very important that I want to point out, that IEP has some reading-related instruction on it. [Parent] has directed that she would not consent for him to be pulled for specialized instruction in fluency, encoding and decoding. I’m reading from her email which is Exhibit 15 142, page 13.

So part of the issue, Your Honor, is the school system’s offered a separate reading class. But [Parent] hasn’t consented even for all the services in the last agreed-upon IEP to be implemented. So, you know, the school staff has done the best that they can with that.

But they can’t — you know, she has not consented even for all of that IEP to be implemented. The IEP situation is difficult because — and you’ll hear more evidence about the effect of her partial consents or not consents or qualifiers and so forth and so on.

NOTE: There is NO “reasonable degree” for implementing an IEP in IDEA. Either it is implemented or it isn’t. If it wasn’t implemented, it didn’t provide FAPE. (See “Know This About FAPE“)

But we would say that implementation of that IEP, while not perfect, has been far more than material and that it has been implemented not just to a reasonable degree but to an almost complete degree and that [Student] has benefitted.

This is the last thing I want to say, and it also responds to something [Parent] said. I’m not going to get into arguing the law now.

NOTE: He closes with blaming the parent. Even though the parent’s behavior shouldn’t impact the school’s implementation of the IEP. The school proposed an inappropriate program four school years in a row, but the parent is expected to sit quietly. Be mild. People have lied. People have been in noncompliance. This is a child’s life. The child doesn’t get a do-over. It’s one and done. So, yes, parents get mad. And, sometimes parents ask that the school division fire people who should be fired, such as the team that proposed an inappropriate program for a student four school years in a row.

But I would just — but I would say we think the facts are going to demonstrate to you, Your Honor, that because there is a — there is a principle when it comes to relief in cases like this and in terms of proposing an IEP in cases like this that conduct of a — you know, many of us — many of us are parents. Many of us have had children in special education. Everybody understands advocating for your student. That’s completely fair and that’s completely appropriate.

What’s not appropriate is what’s happened here which is a course of conduct in these IEPs that has been inappropriate and abusive on [Parent]’s part. You know, we’re all here. Everybody’s being civil to one another. We’re all in this virtual platform.

But it’s not appropriate for a parent – it’s appropriate to have — we think the evidence will show you professional disagreements. It’s not appropriate to call people who are there ignorant and idiots and assholes and call an IEP meeting a shit show and tell people that they should be fired and things of that nature. And it’s happened over and over and over again.

We think it’s highly inappropriate. It’s been corrosive to the IEP process. And I can’t say strongly enough that that in and of itself should preclude whatever relief [Parent] is seeking here.

[Parent] said in her opening remarks about what she needs, I need help. Well, the good news is [Student] is — this case is about [Student] and what he needs. And in the real world of [High School], [Student] is doing pretty doggone well.

Thank you very much, and we look forward to the evidence.

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