Fairfax County Public Schools Provided False Information to Office for Civil Rights
Fairfax County Public Schools (FCPS) provided Office for Civil Rights (OCR) false information in response to an OCR investigation. Dawn Schaefer, director of FCPS's office of special education procedural support admitted FCPS's action this past month in a letter to Virginia Department of Education (VDOE).
The Noncompliance
When a school division provides transportation to general education students, it is required to provide transportation for students with IEPs or 504 Plans. Instead, FCPS refused to provide transportation for students with IEPs or 504 Plans.
For years, FCPS has had a countywide practice of shortening the school day for high schoolers on the nationwide PSAT testing day. At the end of PSAT testing, students are bussed home just as they would be at the end of any other school day.
However, students who have accommodations such as extended time for testing don't finish at the same time as their general education peers, so they aren't ready to take the bus home at the same time.
FCPS's solution?
FCPS gave these students two options:
- Waive your testing accommodations, finish at the same time as general education students, and take the bus ride home with general education students.
- Use your testing accommodations, finish after general education students, and find your own transportation home.
Students had to either go without their accommodations or figure out the transportation needed so they could access their accommodations.
The Complaint & Evidence
2018
In October 2018, high schools throughout FCPS sent their usual emails to families subscribed to their newsletters. Readers who made their way through all the information listed, found a small notice about the PSAT and students with accommodations being required to provide their own transportation or waive their accommodations.
As one example, October 1st and October 6th of 2018, South County High School (SCHS) twice included the following message in their email newsletter:
"Students receiving College Board Approved Accommodations will finish after the dismissal and will need to ensure their own transportation home. If students wish to waive their accommodations, a letter signed by parent/guardian must be received by Friday September 28."
October 10, 2018, SCHS IEP case manager Sean McCormally, continued this noncompliant practice when he contacted me to arrange transportation for a student:
Good morning/afternoon Callie, I wanted to confirm the pick-up time for [STUDENT] this afternoon, after [STUDENT] has completed the first two sections of the PSAT. I happened to be [STUDENT'S] room proctor and I wanted to keep you updated on [STUDENT'S] estimated time of completion. Currently, [STUDENT] should be finishing between 1:15 and 1:30pm. I’ll keep you updated if [STUDENT] finishes early. Let me know if you have any questions 😊
2019
In 2019, FCPS again required students to arrange their own transportation, so on October 15, 2019, I filed a complaint with OCR, alleging FCPS had a practice of denying the related service of transportation to students who have IEPs or 504s, who weren't finishing the PSAT testing at the same time as their peers, and who were being required to secure their own transportation home or waive their accommodations.
OCR didn't advise me if it would open or dismiss the complaint.
2020
The noncompliance continued in 2020. However, due to COVID, things played out differently. At the time, the majority of FCPS students were working from home, attending school virtually, so FCPS sent email surveys, in an effort to find out how many students needed transportation to and from their schools so they could take the PSAT.
Yet, FCPS still chose to refuse transportation to students who wouldn't finish testing at the same time as the general education population. In the case of one FCPS family with two students taking the PSAT, FCPS provided transportation for one but refused it for the other. The school administrator specifically stated:
I wanted to reach out to you regarding your response to the transportation options on the PSAT FCPS Intent to Participate form. You noted that both [STUDENT 1] and [STUDENT 2] would require transportation to and from school on October 29. FCPS can provide morning transportation to both [STUDENT 1] and [STUDENT 2], but only [STUDENT 1] will be able to take FCPS transportation home. Due to the length of [STUDENT 2's] test based on [STUDENT 2's] accommodations, FCPS cannot run buses for this unique schedule. [STUDENT 2] will be permitted to bring [STUDENT 2's] cell phone so that [STUDENT 2] can reach out to you to arrange transportation at the end of [STUDENT 2's] test.
Yes. Student 2 had a unique schedule due to her unique needs that, under IDEA, FCPS was required to address.
2021
April 12, 2021, yet another year later, OCR finally opened an investigation in response to my October 15, 2019, complaint. The letter OCR issued to me and the letter OCR issued to then-Superintendent Scott Brabrand, arrived on the heels of OCR's January 12, 2021, letter to Scott Brabrand, announcing that it was opening an investigation into FCPS's COVID-era practices.
The next day, April 13, 2021, FCPS staff admitted fault and discussed resolution options via email. However, instead of using the email address for FCPS's then-504 head Kathy Murphy, who is referenced in the email, FCPS used an email address for a parent whose name is similar to Kathy's. The parent forwarded the email to me and I forwarded the email to OCR as proof of FCPS's admittance of noncompliance.
In the email, Dawn Schaefer, FCPS's current director of the office of special education procedural support specifically states [emphasis added]:
We received the attached complaint yesterday regarding transportation for students with disabilities and the PSAT from October 2019. Kathy has looked into it a bit, and spoke with the OCR attorney today. I also talked with Gary Morris, principal of South County. Unfortunately, the allegation in the complaint appears to be true.
I recall that we were doing a lot of work around PSATs last fall so I’d like to meet to discuss whether we should enter into what OCR is calling a “Rapid Resolution Process” (RRP), which seems to be a new name for the old VRA/304 resolution process. We’ll need to meet quickly so we can respond in a timely manner. Michelle, can Tina help schedule this meeting?
2022
By the end of the year, OCR released the findings from its investigation into FCPS's COVID-era noncompliance, but failed to release findings on the complaint based on FCPS's refusal to provide the related service of transportation.
2023
June 14, 2023: Dawn Schaefer advised Virginia Department of Education (VDOE) that FCPS had denied allegations that it knew to be true to OCR. In FCPS’s response to a May 23, 2023, Notice of Complaint issued by VDOE, Dawn Schaefer specifically states [emphasis added]:
“As noted in the underlying complaint, the U.S. Department of Education Office for Civil Rights (OCR) opened an investigation on April 12, 2021, based on a complaint that alleged FCPS failed to accommodate students with disabilities taking the PSATs by not providing them bus transportation. FCPS responded to OCR’s data request, denying the allegations and providing requested documentation, and is currently awaiting the outcome of that investigation.”
Dawn knew FCPS was in noncompliance and yet FCPS responded to OCR stating otherwise.
Status of Complaint
The original investigator handling the complaint left OCR and it is now in the hands of another team. OCR has not provided an explanation of why it took two years to open the complaint or of why it has taken almost another two years to investigate the complaint.
I advised OCR of Dawn Schaefer's comments to VDOE, about denying the allegation even though she knows the allegation to be true.
When I have a final answer from OCR on the results of its investigation, I'll add it here.
Side note: Most recently, FCPS parents have reported other instances of FCPS failing to provide the related service of transportation in response to its obligations under its compensatory-education-related resolution agreement with OCR. It seems, if parents don't know to ask for reimbursement for transportation, in addition to any tutoring reimbursement they are seeking, FCPS staff aren't proactively offering it. On some occasions, for parents who have known to ask, FCPS school-based staff haven't known if they can reimburse travel, again illustrating the lack of training on this related service.
In addition, in 2020 Dawn Schaefer was involved in attempting to deny transportation to a student to whom FCPS owed compensatory education. Because VDOE stood by as if watching a spectator's sport, the parent contacted U.S. Department of Education, which in turn contacted VDOE about this continued noncompliance. FCPS eventually paid, but—even though VDOE itself found FCPS owed the student 50+ hours of compensatory education—chose first to take actions that weren't in the best interest of the student, waste more time, and invest in more of its human resources to fight against providing the related service of transportation that it should have provided all along.