June 7 and June 9, 2023, Office for Civil Rights (OCR) issued letters for cases 11-23-4044 and 11-23-4004 to Virginia Department of Education (VDOE) and stated OCR was opening the following legal issues for investigation:
June 7, 2023, Case No. 11-23-4044:
“Complainant alleged that VDOE discriminated against students with disabilities by failing to provide an audio the [sic] accommodation for a Standard of Learning (SOL) reading and writing field test assessment for the 2022-2023 school year.”
June 9, 2023, Case No. 11-23-4004:
“Whether the VDOE’s guidance regarding the provision of special education and related services during the COVID-19 pandemic led school divisions to deny FAPE to students with disabilities.”
Less than two weeks later, U.S. Department of Education (USDOE) released its annual determinations, and announced VDOE failed to "meet requirements", which is the highest rating for improving outcomes for students with disabilities and for compliance with Individuals with Disabilities Education Act (IDEA). Although VDOE's prior consecutive 10 years of reaching this rating came as a surprise year after year, given all the problems plaguing the state, this year's determination and the OCR investigations were met with relief by parents and advocates who long questioned VDOE repeatedly receiving such a high rating given so many critical investigative reports have been released by one agency after another on VDOE's failures and the failures of its Local Education Agencies (LEAs):
- 2018: Virginia’s Joint Legislative Audit and Review Commission (JLARC) announced its intention to investigate VDOE on two counts. Around that time period, USDOE OSEP started investigating VDOE, too.
- June 23, 2020: USDOE OSEP released its Differentiated Monitoring and Support findings on VDOE.
- October 5, 2020: JLARC released its findings of “Operations and Performance of the Virginia Department of Education.”
- December 14, 2020: JLARC released its findings of “K-12 Special Education in Virginia“.
January 12, 2021: OCR announced an investigation into FCPS's COVID-era practices, even though VDOE previously found FCPS COVID practices to be in compliance with IDEA.
- September 21, 2022, a class action lawsuit was filed against VDOE and FCPS. The lawsuit was refiled January 20, 2023.
- October 2022: National Assessment of Education Progress (NAEP) data was released, and indicated a downward trend in Virginia that went back to 2017, pre-dating COVID.
- November 2022: OCR announced findings of systemic noncompliance in FCPS, between April 2020 and June 2022.
- December 16, 2022, OCR released its letter of findings in response to its investigation of Southeastern Cooperative Educational Programs (SECDEP), which, like FCPS, is under VDOE. As with FCPS, OCR found SECDEP at fault for massive noncompliance, including longstanding denial of FAPE.
- January 17, 2023: 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.
- February 17, 2023, in a letter (and chart), OSEP advised VDOE that it identified new areas of concern in addition to the areas yet to be addressed by VDOE:
Finally, through review of the submitted documentation, continued contacts from Virginia parents and advocates, and other sources of information that have come to the attention of our office, we have significant new or continued areas of concerns with the State’s implementation of general supervision, dispute resolution, and confidentiality requirements of Part B of the Individuals with Disabilities Education Act (IDEA). . . . For this reason, as is discussed below, we are notifying you of OSEP’s plan to initiate additional monitoring activities focused on both the new and continued areas of concern and on the effective implementation IDEA requirements in these areas.
In a May 12, 2023, letter OSEP announced its continued investigation into VDOE will include examining VDOE’s “response to the Department’s OCR findings that FCPS failed or was unable to provide a free appropriate public education to thousands of students with services identified in the students’ individualized education programs during remote learning. Specifically, OSEP would like to learn about the actions the State has taken, or plans to take, with similarly situated districts in light of these findings.”
Office for Civil Rights Investigations
June 7, 2023, Investigation
OCR’s letter states it received this complaint March 22, 2023, by a complainant who alleged failures to provide audio accommodations for VDOE’s Reading SOL and Writing SOL field tests. However, the noncompliance started over a month earlier.
In the case of FCPS, this messaging came down February 13, 2023, when FCPS issued an email that stated 1) VDOE is requiring “ALL students who are scheduled to take the online grades 5, 8, and EOC SOL reading tests in spring 2023 [to] participate in the online field test”; 2) that the field tests are for data collection purposes only, to “prepare for the addition of this new item type in the grades 5, 8, and EOC SOL Reading tests in spring 2024; and 3) “the field test is not available in special formats (i.e., audio, paper/pencil, braille, and large print test forms will not be offered during the field test). Students with accommodations who require a paper format test (e.g., Test Over Multiple Days) will not participate in the spring 2023 IRW field test.”
I forwarded the email to FCPS and VDOE staff and advised both that excluding students with special education needs from taking the field test exhibits 1) neither value data from students who have accommodation needs such as Braille or paper to access the SOLs and 2) they are discriminating against an entire class of students when they say "all students" who are scheduled to take the upcoming SOLs would be administered the field test, because "all" should include students who have disabilities and need accommodations who are taking the tests.
FCPS did not respond. About a week later, February 21, 2023, VDOE’s Assistant Superintendent of Special Services Samantha Hollins responded and 1) backtracked on audio being available (but only under certain circumstances) and 2) exhibited that she did not understand the problem of requiring all students to participate in order to collect data – EXCEPT for students who need certain accommodation. She specifically stated:
“Thank you for your email to the Virginia Department of Education (VDOE). The stand-alone field test that is occurring in spring 2023 is to try out a new assessment item type for the Standards of Learning (SOL) grade 5, grade 8, and end-of-course (EOC) Reading tests for possible use in future test administrations. Because the intent of the field test is to gather information on these new items rather than to produce student scores, braille, large print, and paper versions of the items have not been produced, and students requiring these accommodations are not required to participate in the field test. As an exception, students who receive an audio accommodation on an SOL Reading test may receive a read-aloud accommodation during the field test as an alternative to administering an audio form; however, if the Individualized Education Program (IEP) team or 504 plan committee determines that the read-aloud accommodation is not an appropriate alternative, these students are not required to participate. These accommodations will be available in future test administrations where this new item type is included and student scores are produced.”
Samantha’s comment indicates a focus on grading instead of on the problem with preventing students who have special education accommodation needs from being included in data being used to determine future testing.
OCR’s letter indicates Samantha’s claim that audio could be available for the field test might not have been the case statewide. (The complaint was not filed in Fairfax County.)
June 9, 2023, Investigation
“Whether the VDOE’s guidance regarding the provision of special education and related services during the COVID-19 pandemic led school divisions to deny FAPE to students with disabilities.”
November 30, 2022, OCR released its findings for its investigation into FCPS’s practices during “COVID”. After its release, parents and advocates statewide pointed out that noncompliance OCR identified in FCPS occurred statewide, and that the noncompliant thread running throughout Virginia’s LEAs continues to be spun by VDOE. Yet, VDOE failed to require other LEAs to address noncompliance, and FCPS itself continues its noncompliance even after the release of OCR’s findings.
Six key records and/or issues directed VDOE’s COVID-era course:
March 23, 2020, Governor Northam issued Executive Order 53, which ordered [emphasis added] “Cessation of all in-person instruction at K-12 schools, public and private, for the remainder of the 2019-2020 school year.”
March 23, 2020, Governor Northam’s office issued a press release that stated [emphasis added], “Executive Order Fifty-Three orders the closure of . . . and closes all K-12 schools for the remainder of the academic year.
3. VDOE's Long-time refusals to Address Noncompliance
March 2020, USDOE issued a Q&A guidance document that states:
“...if an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)).”
September 9 & 10, 2023, VDOE held its annual training for Virginia Hearing Officers months after Virginia COVID "closures" started and the training failed to address the various issues related to COVID and IEPs. In addition, it failed to address the very online format of virtual due process hearings. and hearing officers who took out their technical frustrations out on parents who were never trained to use the platform chosen by the LEA.
6. VDOE's Monitoring of its LEAs
Executive Order 53 and the Press Release Announcing Executive Order 53
Executive Order 53 called for the cessation of in-person instruction. However, the press release issued the same day stated that the order closed all K-12 schools. VDOE staff latched onto the word “closed” and refused to acknowledge the difference between “cessation of in-person instruction” and “closing” schools.
In March 2021, Samantha Hollins and I went back and forth on Order 53, and her insistence that Governor Northam ordered the schools be closed.
March 12, 2021, I emailed Samantha about VDOE’s practices and stated, “GOV Northam ordered cessation of in-person instruction. He did not close schools.”
Samantha responded, “Your assertion is incorrect” and sent me a link to the press release. Although I continued to point out the actual order to her, she held tight to the press release wording.
Yet, a FOIA response from Governor Northam’s office indicates Northam’s staff was caught by surprise. They did not expect schools to close, as in close all instruction vs close physical brick-and-mortar schools, and stop providing services to students.
VDOE went on to use this "closure" order as the platform on which it built its COVID guidance.
VDOE's Long-Time Refusals to Address Noncompliance
Back in 2017, when NAEP data shows Virginia started plummeting, FCPS created an internal "Hot Topics" document (see: document 1 and document 2) in which it cited over 400 acts of noncompliance, to include admitting it knew it had problems identifying students who have Dyslexia and with securing students' private information. In 2018, after this document was provided to VDOE, VDOE refused to open a systemic investigation into FCPS. Instead, VDOE said:
“The complaint includes insufficient facts to support the alleged violations”.
“As a preliminary matter, we note that more than 26,000 (14%) of FCPS’ 188,000 students in grades prekindergarten through 12 receive special education services. Accordingly, our review of the sufficiency or complaint submissions alleging systemic violations of special education regulations is necessarily based, in part, on the number of students for which the Complainant has provided information supporting the systemic allegations. . . . Here we find general statements insufficient to support an allegation of a systemic violation regarding the provision of “effective” programs for students with dyslexia (IEP implementation and/or FAPE)."
Even though neither IDEA nor implementing state regulations allow for noncompliance based on LEA size, VDOE made the irregular decision anyway.
By the time COVID rolled around, USDOE released its 2020 Monitoring Report, which called VDOE out on ignoring credible allegations of noncompliance.
Yet, VDOE continued to look the other way anyway.
May 8, 2020, FCPS parent Debra Tisler and I wrote and filed a systemic complaint against FCPS with three other FCPS parents.
Four days earlier, May 4, 2020, FCPS sent an email to parents stating that it was implementing temporary learning plans (TLPs) and that IEPs would not be implemented until school resumed. In addition, FCPS established that compensatory education “should be determined and provided on a case-by-case basis and that compensatory services “would be determined after normal school operations resume.”
The future was clear and we did not like the view.
We assumed “normal school operations” to be defined as students attending school in brick-and-mortar buildings instead of online and we knew this wouldn’t occur until months in the future.
We knew that once normal school operations resumed, the time-intensive process of evaluating each child for compensatory education would continue to delay the provision of FAPE. With a population of over 25,000 students with special education needs, students would be waiting for months simply to be assessed.
Last, but not least, we knew that FCPS had a history of insisting it provide compensatory services it owed, rather than paying private providers. To this point, the systemic complaint mentions that one of the parents in the complaint was paying for private speech therapy because FCPS refused to provide services fully addressing the needs of the parent’s child. The speech therapy was being provided online.
In its infinite wisdom, VDOE made the following decision:
Complainant/Parent has alleged that LEA “has stated that compensatory education ‘should be determined and provided on a case-by-case basis[’] and that compensatory services ‘would be determined after normal school operations resume.’” Complainant/Parent stated that “[i]t is assumed that ‘normal school operations’ to quote [LEA] is defined as students attending school in brick and mortar buildings instead of online.” Complainant/Parent asserted: “This will be months in the future. Determining compensatory education at that point means additional months past ‘normal operations’ while IEP Teams meet to determine compensatory education, which will [be] time-intensive given the number of students. All the while, Students will continue to go without FAPE.” This allegation is speculative and premature and will not be included in the complaint investigation. [emphasis added]
People like to say hindsight is 20/20, but in this case, the future was 20/20 and it looked like an out-of-control train barreling down the tracks, heading for massive derailment. VDOE’s failure to see (or choice to ignore) what was right in front of it has yet to be explained.
What did OCR find?
OCR’s investigation letter of findings provides proof that the above allegation wasn’t “speculative and premature”. Before the systemic complaint was even filed, FCPS knew compensatory services were needed and would be a problem—and that it was looking toward basing compensatory services on money available rather than student need.
In a March 19, 2020, email exchange, then-director of Special Education Procedural Support Jane Strong emailed then-assistant superintendent of Special Services Teresa Johnson, then-chief equity officer Francisco Duran, Mike Bloom, and counsel John Foster an acknowledgment that supports the concerns expressed two months later by parents in the systemic complaint, and that IEP addendums (not unilaterally stripped TLPs) needed to be created:
Just wondering if we could make sure that these decisions being discussed now about resuming Digital Learning will impact us Significantly in sped on compensatory service. Guidance received yesterday was that we have to do IEP addendums with all students first. That would mean 28K IEP meetings. I do not have a concept of how this is feasible.
Three years later, it’s hard to ignore that Jane, Teresa, and Francisco are no longer employed by FCPS. According to evidence examined by OCR—evidence that was in existence before the systemic complaint was filed—they knew they were obligated to provide FAPE.
According to the evidence OCR reviewed, as early as April 2020, Division administrators understood that compensatory services would be required for students with disabilities. An April 2, 2020, e-mail among administrators claimed that because the Division was “one of very few divisions that are committing to ‘new learning’,” rather than reviewing what students had already learned, it would “be at a distinct disadvantage for [special education] compensatory.” Later that spring, Division administrators had even estimated how many students would be owed related services (9,820), and how much those services would likely cost them—around $3 million, for the more than 60,000 service sessions missed from March 13 to May 13, 2020.
In an email dated May 20, 2020, less than two weeks after the systemic complaint was filed and just two days after VDOE opened its investigation, FCPS staff were clear that there were more compensatory services owed than money budgeted. OCR looked at both the email and then to FCPS’s FY 2021 documents, which in turn provided a clue to how FCPS came up with “recovery services” and its budget for such services:
[T]he Assistant Superintendent for Special Services mentioned that “with intervention/support and compensatory services,” the Division “had more items ($) than the [CARES] grant could cover.” Fiscal year 2021 budget documents on the Division’s school board website indicated the Division had been approved by VDOE for a fiscal year 2021 CARES Act5 grant that included $2.9 million for budget item “Remediation & Recovery,” which was described as being for “Special Ed Compensatory.
In the same e-mail thread as the May 20, 2020, message described above, the Assistant Superintendent on May 21, 2020, asked other administrators, when they next presented to the school board, “can we refer to the sped compensatory language to [sic] ‘Recovery/Remediation?’” From that point on, the group decided to use the term “Special Education Recovery/Remediation” . . .
The chart, dated May 13, 2020, was titled “Anticipated Compensatory Costs for Special Education,” and set forth estimates for anticipated “comp claims” and “special education IEP related services missed within the time since distance learning started week of 4/13/20.” Under the category “comp claims,” the chart stated that the anticipated number of students “varied” and the number of services “varied” and included private placements and private tutoring, for a total approximate cost of $869,393. The second category was titled “Related Service Therapies (OT/PT/Speech)” and listed 9,820 students with approximately 40,608 sessions of services missed since April 13, for a total cost of $2,030,400. The chart projected $2,899,793 total anticipated compensatory costs for special education, approximately the amount the Division received through the CARES Act grant.”
FCPS was focused on money. There were private providers available, yet FCPS was changing names to fit categories and determining services by money available rather than need. In addition, OCR’s findings prove that parents were right to be concerned about the delay in provision of compensatory education:
And as of early February 2022, only some 1,070 students with IEPs had received recovery services, joined by only 8 students with Section 504 plans – although the Division serves more than 25,000 students with disabilities.
Via a FOIA request Special Education Action obtained between the end of OCR’s investigation and the release of its findings, another horrifying statistic was uncovered. Barely a month before the release of OCR’s findings, FCPS admitted the following to journalist Linda Jacobson:
It is my understanding that you seek data specifically referring to services for students with IEPs who missed services due to remote learning. Please be advised that the data point is reflected in recovery services not compensatory services data. “That updated data point for recovery services is provided below. “ Currently, there are 59 students with recovery services on their current IEP.
And yet in 2020, VDOE said concerns about this very issue were “speculative and premature.”
Back to 2020
What else did VDOE refuse to investigate?
VDOE refused to investigate change in placement, which was a massive area of noncompliance identified by OCR.
VDOE stated the following as its reasoning to refuse investigation of this issue:
Complainant/Parent has asserted that LEA has implemented “changes in placement” without issuing prior written notice or obtaining parental consent and “has not ensured continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” Complainant/Parent also alleged that LEA has failed to provide “instructional settings designed to meet the unique needs in the distance learning environment.” Given gubernatorial orders directing the “cessation of all in-person instruction at K-12 schools, public and private, for the remainder of the 2019-2020 school year” and the closure of many businesses and other activities, school divisions are effectively precluded from providing services in the placements/least restrictive environments established for students or making available a continuum of placements (8 VAC 20-81-130.A; B). Accordingly, these particular allegations are without basis and will not be included in the complaint investigation.
Back to OCR’s Findings
Again, OCR found FCPS in noncompliance of allegations VDOE refused to investigate, and for which FCPS was at fault in advance of the systemic complaint being filed:
…partly owing to its use of an incorrect FAPE standard, the services the Division did provide through its TLPs were not designed to meet students’ individual educational needs. Instead, the Division directed its IEP teams to draft TLPs that would “look different” from students’ IEPs, and that would “be significantly reduced,” due to the virtual setting. According to those instructions, the services students could receive through a TLP were not only cut, but limited to suggested amounts—in some cases, as little as 30 or even 5 minutes per month per service. And the Division made clear to its IEP teams that in making those cuts they were to “consider what services student[s] require[d] to support online, distance learning,” not what services those students needed online to support their continued progress on their IEPs. IEP teams were told, moreover, that they could make these changes unilaterally—despite in many cases not being able to conduct evaluations before doing so, as the Division acknowledged at the time. In addition, the Division’s guidance made clear to staff that for TLPs they could count such things as telephone contacts, emails, and pre-recorded videos as services provided.
By August 24, 2020, when VDOE released the findings of its investigation, FCPS had gone from advising staff members they could unilaterally slice IEP services to advising them to create “virtual IEPs”, which just happened to limit services as well. OCR identified that FCPS guidance directed staff to cap services and that a virtual IEP could water down what students were expected to master during remote learning.
Yes, There’s More: Two Additional VDOE Refusals
VDOE titled these last two “grades” and “discrimination”—and completely missed the boat in its interpretation of the parents’ allegations and evidence.
Parents made no allegations related to grades. Instead FCPS’s grading was used as evidence by parents, to prove FCPS was, indeed, conducting school and providing opportunities to general education students that it wasn’t providing to special education students. At the time, FCPS was allowing students to improve their grades by attending and participating in class. However, special education students were required to do this without any of the services they’d usually have. In addition, FCPS had determined it wouldn’t provide IEP progress reports, even though it would provide report cards. The progress of general education students would be provided via a report card, whereas no progress monitoring and reporting would be provided to special education students, even though regular progress reporting is required under IDEA.
This is the evidence the systemic complaint included:
With general education students, FCPS is measuring work accomplished during temporary learning, to determine if a student’s grade will be bumped up. Therefore, FCPS is measuring progress in general education students and is obligated to provide measurements for students in special education programs, to include Students with IEPs.
This is VDOE’s response:
Grades; “measurement.” Complainant/Parent has asserted: “With general education students, [LEA] is measuring work accomplished during temporary learning, [sic] to determine if a student’s grade will be bumped up. Therefore, [LEA] is measuring progress in general education students and is obligated to provide measurements for students in special education programs, to include Students with IEPs.” Issues regarding the grading of student work lie outside the scope of our investigative authority and must be addressed at the local level. Further, the issuance of grades for assignments does not trigger LEA’s obligation to issue progress reports addressing annual goals. This allegation contains insufficient information to the initiation of a special education complaint investigation.
VDOE’s final refusal focuses on the word “disparate,” in an attempt to push allegations onto OCR’s plate, rather than handling them itself. “Disparate” appears in the following three allegations in the systemic complaint:
FCPS’ actions have caused and continue to cause harm to Students by materially failing to provide FAPE and by disparate impact caused by such action against Students.
Students have been disparately impacted by the educational policies of FCPS.
FCPS discriminates against Students based on their disability by depriving them of the services and supports deemed necessary for FAPE in their IEPs while providing educational services to students who are ineligible for Section 504 and/or IDEA protections.
Yes, OCR — not VDOE — handles allegations of discrimination. However, students not receiving FAPE and districts with predetermined practices fall directly within VDOE’s wheelhouse. Instead of investigating, VDOE went with the following:
Discrimination; “disparate” impact. Complainant/Parent has alleged that LEA “discriminates against Students based on their disability by depriving them of the services and supports deemed necessary for FAPE in their IEPs while providing educational services to students who are ineligible for Section 504 and/or IDEA protections.” Complainant/Parent cited “disparate impact” on students generally.
Our office has authority only to address issues arising under IDEA and its related federal and state regulations. However, we note that, if Complainant/Parent has concerns regarding disability, racial, or other discrimination, Complainant/Parent may contact the Office for Civil Rights within the United States Department of Education
UDOE "Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak"
USDOE’s guidance states:
“if an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)).”
VDOE interpreted USDOE’s guidance on FAPE in the following manner:
“The first sentence in the statement above regarding the provision of FAPE refers only to Section 504 and the Americans with Disabilities Act and speaks solely to “access” for students with disabilities.”
VDOE’s reliance on its interpretation came at a high cost to students statewide.
Governor Northam’s March 23, 2020 press release states:
The Virginia Department of Education (VDOE) will issue guidance to help divisions execute plans to continue instruction, while ensuring students are served equitably, regardless of income level, access to technology, English learner status, or special needs.
Nothing in the governor’s release states that a) instruction will be voluntary; 2) school instruction will be closed; 3) FAPE will be denied; or 4) that IEPs and 504 Plans won’t be implemented.
VDOE’s interpretation of USDOE’s guidance benefited the LEAs and ignored basic regulations related to Section 504 and the Individuals with Disabilities Education Act (IDEA).
The lack of reference to Sec 300.101 of IDEA does not dictate exclusion of compliance with IDEA.
In both VDOE’s guidance and in USDOE’s guidance, there is the reference to 34 CFR 104.33. This is the requirement of FAPE. This is inclusive of implementation of the IEP developed under IDEA (referenced by its former name “Education of the Handicapped Act”):
§ 104.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient‘s jurisdiction, regardless of the nature or severity of the person’s handicap.
(b) Appropriate education.
(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non handicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
Thus, referencing section 300.101 would be redundant and unnecessary.
VDOE should have understood that Section 504 covered IEPs.
Virginia Hearing Officer Training
September 9 & 10, 2020, Perry Zirkel presented 3 hours a day of training for VDOE's required annual hearing officer training—months after Virginia COVID "closures" started and the training failed to address the various issues related to COVID and IEPs.
According to the agenda for September 10th, all of one hour and 15 minutes was devoted to COVID issues at the end of the last day.
The associated materials provided don't indicate that the hearing officers received any training on issues such as holding online/virtual due process hearings—or that they received any technical training to hold such hearings.
In addition, the training materials VDOE provided in response to a FOIA request indicate that, while the materials briefly address USDOE's findings related to hearing officers extending timelines, this bit was either missed by some of the hearing officers or presented in a manner that it flew right over their heads.
In a September/October 2020 due process hearing I attended myself, one of the first things Hearing Officer Rhonda Mitchell did was state (before the hearing even started) that she needed an extension because she's a slow writer. Later during the hearing, she warned that not everyone agreed with USDOE's findings, and indicated that the parent shouldn't go down that line of questioning.
VDOE's Monitoring of its LEAs
Just last week, VDOE advised a Page County Public Schools (PCPS) parent that VDOE would not process his complaint submission because VDOE “no longer partners with Google and cannot access/open any Google documents”.
Irregular decisions like this one, which defy common sense and fail to follow VDOE’s own procedures, are more rule than exception in VDOE-land. In addition to refusing to process the complaint, VDOE hasn’t monitored PCPS since 2009, even though VDOE announced a new monitoring program in 2020, which supposedly focuses on “all 132 of the commonwealth’s divisions undergoing a detailed review at least once every five years.” This change in monitoring was in response to VDOE's corrective actions following JLARC's critical reports.
So, in 2020, when COVID hit Virginia, VDOE had counties that hadn't been monitored in at least a decade, like Page and Arlington counties, and noncompliance was going unchecked.
In 2021, VDOE featured this monitoring program in a press release that announced its 10th consecutive year earning “U.S. Department of Education’s highest rating for improving outcomes for students with disabilities and for compliance with the federal Individuals with Disabilities Education Act”. In the same release, Assistant Superintendent for Special Education and Student Services Samantha Hollins said, “Compliance with IDEA is just the starting point. Our goal is to maximize the potential of all students, including students with disabilities.”
Yet, compliance with IDEA is exactly what VDOE was not ensuring. VDOE didn't start monitoring the LEAs until 2021, so in 2020 the noncompliance compounded during COVID.
In 2021, VDOE monitored Fairfax, Chesterfield, and Powhatan Public Schools, and released their reports in 2022. This monitoring consisted of the school districts self reporting and VDOE "validating" a small portion of the IEPs. Although VDOE identified noncompliance, parents in those counties know what was identified is barely a drop in the buckets overflowing with noncompliance.
With Fairfax County, as one example, VDOE's monitoring occurred during the time period Office for Civil Rights investigated FCPS, as well as when an outside organization was doing a two-year special education audit of FCPS. Hence, one would expect VDOE's monitoring report to, at a minimum, include at least half of what was identified by OCR and in the two-year special education audit. Unfortunately, that was not the case.
With Powhatan and Chesterfield, which experienced similar noncompliance during COVID, VDOE should have found more issues related to denial of FAPE, but didn't. (See: Powhatan Comprehensive Monitoring Closure Letter, Powhatan Corrective Action Plan, Chesterfield Comprehensive Review Cover Letter, and VDOE Notice of Needs Assistance to Chesterfield)
Meanwhile, in 2023, Page and Arlington—and other counties throughout the state—haven't been monitored in over a decade.
The arrival of VDOE’s new superintendent of public instruction, Lisa Coons, has marked small changes.
After Lisa was made aware of her staff’s response to the Page County parent, the complaint specialist responded to the parent, apologized, and stated the complaint would be processed with the original submission date. In addition, VDOE recently found FCPS at fault for two more systemic violations (See: "Systemic Noncompliance: VA Dept. of Education finds Fairfax County at Fault for Refusing to Provide Related Service of Vision Therapy" and "Fairfax County Public Schools Found at Fault for Systemic Noncompliance: Local Administrative Review/Procedural Safeguards") and this week D.C. News Now reported VDOE found Loudoun County Public Schools in noncompliance for many of the same areas of noncompliance that have been occurring statewide for years. Refusal to provide the related service of transportation and reduction of speech language therapy have landed Loudoun’s neighbor Fairfax County into hot water for years.
However, Virginia’s children don’t have time to wait for another superintendent to get up to speed on VDOE’s failures. Four classes of students have graduated out of Virginia’s high schools since COVID hit in 2020, yet VDOE failed to include them in its K-12 Learning Acceleration Grants program, even though it did include students who weren’t yet in school between 2020-2022. In addition, recent NAEP data indicates Virginia’s decline started in 2017, prior to COVID, so those four classes of students graduated out without their unique needs being met, and Virginia is tracking for more of the same. Today's highschoolers were being failed in elementary school when COVID hit, and have the least amount of time available to receive the help they need.