April 12, 2021, the U.S. Department of Education (USDOE) Office of Civil Rights (OCR) launched an investigation of Fairfax County Public Schools (FCPS). This follows OCR’s launch of a separate investigation of FCPS, just three months earlier, on January 12, 2021.
April 13, 2021, FCPS admitted fault and an intention to discuss entering into a rapid resolution with OCR. This occurred in an email on which FCPS included a FCPS parent.
OCR Investigation and Background
October 15, 2019, I filed a complaint with the OCR. In the complaint, I cited an e-mail from South County High School (SCHS), in which it stated the following:
“The PSAT NMSQT will be given on Wednesday, October 16th to all 10th and 11th graders. Students should report directly to their testing rooms – we have asked Advisory teachers to share these locations with the students. October 16th will be an early release day with a dismissal time of 12:55 PM. A grab’n’go lunch will be available for purchase in the cafeteria prior to departure. Students receiving College Board Approved Accommodations will finish after the dismissal bell 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 in Students Services by Tuesday, October 15. [Emphasis added.]
Students with College Board approved accommodations were provided two options by SCHS:
1. The students could secure their own transportation to access their accommodation/s, or
2. the students could waive their accommodations, which would mean the students could take the PSAT within one day, thus eliminating the need to secure their own transportation.
Per Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA), FCPS should have secured and provided transportation to the students for both days of the testing. When FCPS secured transportation for general education students taking the PSAT, FCPS should have secured transportation for special education students, too.
Per the OCR’s August 2010 guidance:
“Section 504 of the Rehabilitation Act of 1973 protects the rights of individuals with disabilities in programs and activities that receive federal financial assistance, including federal funds. Section 504 provides that: ‘No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .’”
104.33 Free appropriate public education.
“(c) Free education — (1) General. For the purpose of this section, the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. [Emphasis added.] It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of this subpart. Nothing in this section shall be construed to relieve an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.
“(2) Transportation. If a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person or his or her parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient.” [Emphasis added.]
April 12, 2021, the OCR e-mailed me a letter in which it stated it is opening an investigation.
Click on the image below to view the document in full.
April 12, 2021, the OCR e-mailed FCPS a letter in which it stated it is opening an investigation.
Click on the image below to view the document in full.
April 13, 2021, FCPS discussed the OCR complaint via e-mail—and inadvertently included a FCPS parent within the cc section of the e-mail.
Click on the image below to view the document in full.
FCPS’ careless action of including the wrong person on an e-mail didn’t come as a surprise. If you’ve been a reader of this site for a bit, you know that I seem to be a magnet when it comes to FCPS violating the privacy of my family members and when it comes to FCPS providing me internal and/or unredacted information about other FCPS children and their families, and FCPS staff members.
The Virginia Department of Education (VDOE) has found FCPS in noncompliance of confidentiality regulations in the past, for this exact type of carelessness. Yet . . . The noncompliance continues, which in turn puts the spotlight on VDOE and its continued failure to exercise general supervision and ensure that local education agencies (LEA) comply with IDEA. (Additional Reading: “FERPA Violation Report Card: Fairfax County Public Schools” and “Fairfax County Public Schools, Sands Anderson, and Blankingship & Keith Breach Privacy During Due Process“
2019 Wasn’t the First or Last Time FCPS Failed to Provide Transportation
In 2018, 2019, 2020, and 2021, FCPS provided transportation to and from school for general education students who were taking the PSAT, but neglected to provide it for students with special education accommodations that had been approved by the College Board.
October 1, 2018
October 1, 2018, SCHS sent an email that included a statement that is almost word-for-word the same statement it sent a year later, on October 15, 2019:
“The PSAT NMSQT and PSAT 8/9 will be given on Wednesday October 10. Students should report directly to their Homeroom.
“October 10 will be an early release day with a dismissal time of 1:05 PM. A grab’n’go lunch will be available for purchase in the cafeteria prior to departure. Students receiving College Board Approved Accommodations will finish after the dismissal bell 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 in Students Services by Tuesday, October 15.“
This is special: The last sentence states that accommodation waiver letters must be submitted five days after the scheduled PSAT date. The PSAT was scheduled for October 10th and October 15th was the deadline for waiver letters.
Click on the image below to view the document in full.
October 6, 2018
October 6, 2018, SCHS sent an email that repeated information in the October 1, 2018, email—with two exceptions:
1. FCPS changed October 10 to October 10th.
2. FCPS changed the deadline for the waivers from October 15th to September 28th.
This is special: FCPS changed the waiver deadline from five days after the scheduled PSAT date to six days before the October 6th e-mail was sent.
Click on the image below to view the document in full.
September 28, 2020
September 28, 2020, SCHS sent an email that included information for 11th graders taking the PSAT on October 29, 2021. FCPS requested students fill out a form noting their intent to take the PSAT and included a link to both the form and a “translated version of the form content“. The latter appears on FCPS’ central site (rather than just SCHS’ site), which indicates that this one-day transportation offer is a county-wide issue and not limited to SCHS. There was no offer for a second day of transportation for students who test over the course of two days.
Noteworthy: Due to FCPS not providing in-person, in-school instruction (even though schools nationwide, who have fewer resources than FCPS, have opened full time), students taking the PSAT would require transportation to and from school. Whereas in the past students taking the PSAT over the course of two days had to secure their own transportation home, in this case, these students had to secure their transportation to and from the school.
Click on the image below to view the document in full.
October 3, 2020
October 3, 2020, SCHS sent an email that repeated the information from the September 28, 2020, email. It, too, included a link to both the form and a “translated version of the form content“, the latter of which also appears on FCPS’ central site (rather than just SCHS’ site), which—again—indicates that this one-day transportation offer is a county-wide issue and not limited to SCHS. There was no offer for a second day of transportation for students who test over the course of two days.
Click on the image below to view the document in full.
October 5, 2020
October 5, 2020, SCHS sent an email that repeated the information from the September 28, 2020, and October 3, 2020, e-mails. It, too, included a link to both the form and a “translated version of the form content“, the latter of which also appears on FCPS’ central site (rather than just SCHS’ site), which—again—indicates that this one-day transportation offer is a county-wide issue and not limited to SCHS. There was no offer for a second day of transportation for students who test over the course of two days.
April 15, 2021 Update: Another FCPS parent forwarded me an e-mail in which a teacher specifically denied the parent’s request for transportation for the parent’s child, who required testing over the course of two days. This was in relation to the October 29, 2020, PSAT, too. The teachers stated that, due to the length of testing based on the student’s accommodations, “FCPS cannot run buses for this unique schedule.” The parent requested that she remain anonymous and that I not post the email here, due to the parents fear of FCPS retaliating against the parent and the parent’s children,
October 15, 2020
FCPS emailed students and parents who had been approved to receive accommodations. The email included a reminder for students to secure their own transportation:
“I’ve put a time approximation below regarding what you should expect for PSAT Day of October 29 and October 30 so you can make preparations for transportation.”
March 7, 2021
March 7, 2021, SCHS sent an email that included information for 10th graders taking the PSAT on April 19, 2021. FCPS requested students fill out a form noting their intent to take the PSAT and included a link to both the form and a “translated version of the form content“. The latter appears on FCPS’ central site (rather than just SCHS’ site), which indicates that this one-day transportation offer is a county-wide issue and not limited to SCHS. There was no offer for a second day of transportation for students who test over the course of two days. I’ve included a video of the form as it appears on FCPS’ site, just in case it ends up being pulled down. (See below)
The e-mail includes the following statement, too:
“Monday, April 19 has been designated for independent learning in FCPS high schools, so students who choose to take the PSAT 10 will not miss synchronous instruction or intervention with their teachers.”
There is no statement about such actions—ensuring students “will not miss synchronous instruction of intervention”—being taken on behalf of students with College Board approved accommodations who require testing over the course of two days. This applies to previous years, as well as to other tests.
Click on the image below to view the document in full.
Click on the video below to view FCPS’ intention form, requesting information about transportation needs for one day of testing.
There’s More
This isn’t the first time and likely won’t be the last time FCPS fails to consider an entire population of students when it makes decisions.
Some of you may recall FCPS’ launch of FCPSOn, which involved FCPS all of a sudden charging a tech fee to students who had always received assistive technology services (ATS) at no charge per their IEPs or 504 Plans.
When FCPS decided to provide computers to all high schoolers, it attached a tech fee.
Meanwhile, middle school and elementary school students continued to receive ATS services at no cost.
Per IDEA and Section 504 (as already stated toward the start of this article), school divisions may not charge students a fee to access their accommodations. While schools can charge fees that it requires all students to pay, FCPS could not claim this to be such a case because because FCPS was allowing younger students but not older students free access. Doing so becomes an issue of ageism, too.
(Additional Reading: “FCPS Charges Students Fee to Access Education“)
Do You Have Other Examples?
If you have your own examples of FCPS charging students to access their accommodations—and/or requiring students to independently sort out access to their accommodations, please email me at support @ specialeducation.com and/or post to Special Education Action’s Facebook page or via Twitter.
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