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. However, if there’s nothing in writing, there’s nothing to inspect.
This training isn’t a surprise in light of the U.S. Department of Education (USDOE) Office for Civil Rights’ (OCR) recent investigation findings, released November 30, 2022. During its investigation, OCR found that FCPS directed staff to take actions that are in violation of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability under any program or activity receiving Federal financial assistance.
During the same period investigated by OCR, FCPS is known to have on at least three occasions trained staff to avoid putting information in writing, to prevent parents from obtaining it.
April 1, 2020, FCPS held a training session focused on COVID-19 procedural guidance. At about the 00:31:30 mark of part 2 of the video for the meeting, director of FCPS’s office of special education procedural support Dawn Schaefer and Hayfield HS assistant principal Andrew Guillen advised participants:
Andrew Guillen: Yes, Dawn. I just wanted to be clear, too. If that chat function is, um, enabled, parents could ask for a copy of it through a FERPA correct?
Dawn Schaefer: Yes, that is correct. So we really, um, strongly suggest that you turn it off.”
Andrew Guillen: Correct.
Dawn Schaefer: And remember, anything that gets typed over there gets kept.
January 25, 2021, FCPS held a training session with special education lead teachers. At about the 00:35:20 mark, FCPS procedural support liaison Dawn Azennar advised participants:
. . . when your PSL comes to you, and kind of talks about a student, and you want to think about that continuum of services, you probably wanted to have that conversation a little earlier, rather than waiting to the last minute of the school year. So, I just think that early planning, that frequent communication with the receiving school is going to be important——and minimizing how much you put in e-mail, too. That’s another good thing to remember. Have the conversations on the phone or verbally.
February 2, 2021, FCPS held a training session with special education department chairs. At about the 00:38:24 mark, Alice Lima-Whitney and FCPS PSL Michelle Waller advised participants:
Alice Lima-Whitney: So we went through this really, really quickly and, um, I want to remind you that all of the resources for you to look at this information, how to access it, suggestions for what and what to enter are all, um, linked here. And then lastly, I want to mention that anything that is added to the, um, worksheets is, um, accessible via FOIA or FERPA, so make sure that everything that you’re, um, putting into the sheets is specific to literacy progress, um, or needs. . . .
Michelle Waller: Okay, it looks like we don’t have any questions at this time. So Alice, we’d like to thank for presenting information on the Plist. Um, you already mentioned that anything that’s typed in here can be, uh, requested by the parent through FERPA or FOIA, so remind your school teams, please, that, um, of that information.
This training isn’t unique to FCPS’s COVID “closures” period. February 24, 2016, then-Silverbrook Elementary School (SES) principal Melaney Mackin advised school psychologist Michael Borsa the following regarding an email sent by a parent:
I suggest that you do not email your reply to her questions (no paper/email trail) – either call her to
discuss or email to say these can be answered when she comes in for the next meeting with the
A bit of irony: For all its trainings on how to avoid information being obtained by FOIA or FERPA requests, FCPS has a history of exceling at FERPA violations and has been found in noncompliance on numerous occasions for its failure to secure the privacy of students.
PRECISELY the reason one should follow up a phone call or casual meeting with an email that states “to memorialize our conversation today . . . “
Also, worth mentioning that personnel should keep it mind that lack of information/data in a student’s file can get them released from their job. (Ask me how I know. 😉)
To quote a little league umpire my son’s team once had: “If I didn’t see it, it didn’t happen.” Who knew a little league umpire’s words would apply to the school system. . . . I learned quickly that if it isn’t recorded or in writing or documented somewhere else, it might as well have never happened. Without documentation, there’s no proof. If you’d like to share how you learned this yourself, I’d love to hear the story! Thanks KT!