Office for Civil Rights vs. Virginia Dept. of Ed: Two Agencies, Two Investigations, Two Very Different Outcomes, Part I

In 2020, Virginia Department of Education (VDOE) received a systemic complaint against Fairfax County Public Schools (FCPS). In response, it refused to investigate some of the allegations, changed and/or ignored other allegations, and ultimately found FCPS in compliance.

In 2022, Office for Civil Rights (OCR) found FCPS at fault for years-long systemic noncompliance, based on some of the very allegations filed in the 2020 systemic complaint. 

What happened? How could VDOE make a finding of compliance in 2020, while OCR made a finding of noncompliance in 2022? 

The answer: VDOE failed to investigate credible allegations of noncompliance and failed to comply with 300.152(4), which requires it to “review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part”, and FCPS withheld information. 

2006 Revisited

Before diving into the differences between the VDOE and OCR investigations and findings, there’s a separate VDOE failure to first address.

In 2006, the United States Department of Education (USDOE) warned school districts that pandemics were on the horizon and advised them to prepare pandemic plans

FCPS was one of the districts that paid attention and on September 17, 2007, Fairfax County School Board (FCSB) was briefed on FCPS’s pandemic plans. The documents presented share a view of a school district on its way to being prepared ten-plus years in advance of COVID. One slide in the briefing focuses on a CDC guidance document titled “Interim Pre-pandemic Planning Guidance” and another slide states, “No one can predict the timing, nature and severity, or what the new virus will be. Experts worldwide believe near term pandemic may be imminent.” Page two of FCPS’s “Pandemic Influenza Response Plan” states, “While the full impact of a pandemic cannot be predicted, planning for operations under such conditions can mitigate the impact of the event on our staff, facilities and mission.”

Ten days later, September 27, 2007, Fred Ellis, then Director/Office of Safety and Security, briefed the school board on FCPS’s emergency management issues, to include pandemic planning. (Click linked text to view 9.27.07 school board briefing slide show and to listen to the presentation.)

September 10, 2009, Kim Dockery, Assistant Superintendent/Special Services and Fred Ellis,
Director/Office of Safety and Security, briefed FCSB on the state of the pandemic plan. The meeting minutes and presentation (view transcript, listen to presentation) make it clear that Kim, Fred, and others were planning for the future and actively trying to update FCPS’s initial plans.

During this presentation, Kim stated the following:

In terms of academic continuity, all the schools are also being encouraged to have teachers keep their Blackboard sites update for their personal classes. But in addition, Instructional Services is working on our—it was our Blackboard pandemic site, but we’re calling it Keep on Learning, and it will only be turned on in a case where you have a number of students that were . . . if we had a lot of students sick at home, or if we had a case where we needed to have portions or populations of school of students that couldn’t have access to school.

Ten years later, FPCS made headlines nationwide for its spectacular failure to launch its virtual learning platform, which included 1) issues with Blackboard, 2) failures to keep Blackboard pages up to date, and 3) staff in need of training to use Blackboard as a teaching platform.

During the same September 10 meeting, school board member Martina Hone asked about instructional continuity, specifically students with special needs:

I’m pleased to hear that you have a plan. Kids who are students with IEPs or have disabilities, kids that are sort of not sort of caught in the mainstream and their extra needs, how are we going to deal with academic continuity for those kids?

Kim responded, “We’re working within special ed to look at those kinds of things”.

A search for “Pandemic” on FCSB’s BoardDocs site failed to pull up anything between that September 10 meeting and early 2020.

For two years during 2007 and 2009, FCSB and FCPS were moving in the right direction—and then everything fell apart. Kim Dockery retired in 2015 and other staff moved on as well.

Fast forward to 2020 and Kim’s 2009 comment related to “working within special ed” to address academic continuity remained unrealized.

March 16, 2020, Jane Strong, Director of Special Education Procedural Support (OSEPS) sent an email with a directive from Francisco Duran, “to begin brainstorming how we would guide our spec ed teachers to provide services for our students.” She went on to state:

High incidence students probably can manage with the online instructions. We need to probably develop a plan for low incidence students. Things like: sped teacher office hours, video or recorded lessons, materials pick up and small equipment (?) EDY? should be thought about. (not a full list, you may have other ideas.)

Two days later, March 18, 2020, records indicate that Jane and other staff members attended a presentation by law firm Reed Smith, which was already monetizing COVID-related issues at $285 a pop, per attendee. Following that presentation, on March 19, 2020, Jane sent another email, this time stating,

I wish they would not go forward with Distance Learning.

That same day, Procedural Support Liaison manager Debbie Lorenzo, agreed with Jane and—in comments foreshadowing FCPS’s online learning debacle—acknowledged that there would be problems related to equity, based just on teachers online “knowledge and comfort”:

I agree with you. There are going to be long term ramifications. This is why they were saying IEPs needed to be completed before you begin so you have thoughtfully considered the needs of the student and made changes to the IEP. The fact that each teacher has varying levels of knowledge and comfort with online should be enough to say it is not going to be equitable across students.

Right now George Mason has left it up to the professor to determine the format of their class because not all professors have the capacity to run a blackboard collaborate. Nicolas has 2 professors who will have live sessions at their designated days starting next week where the other 2 will be emailing assignments and then his last class is online so it will continue that way.

One of the largest school districts in the country, with one of the largest budgets in the country, was on its way toward being prepared years in advance of COVID. What happened? 

And where was VDOE — or, for that matter, all other state education agencies in the United States? 

Pandemics were expected. Where was VDOE to ensure its own house was prepped to handle such disasters?

Back to 2020 

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. 

VDOE’s response? 

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 inexistence 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 place, 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

To be continued . . . Stay tuned for Part II and Part III.

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