VDOE Guided School Divisions Statewide to Engage in Discrimination; Office for Civil Rights and VDOE Enter Into Resolution Agreement

Virginia Department of Education (VDOE) discriminated against thousands of students who have disabilities during its Spring 2023 "field testing".

June 7, 2023, Office for Civil Rights (OCR) initiated an investigation after Spotsylvania County Public Schools (SCPS) school board member Dawn Shelley filed an OCR complaint.

Before OCR finished its investigation, VDOE expressed an interest in entering into early resolution. According to OCR's September 26, 2023, letter announcing the early resolution, Section 302 of OCR’s Case Processing Manual "states that allegations may be resolved prior to OCR making a determination if the school expresses an interest in resolving the allegations and OCR determines that it is appropriate to resolve them because OCR’s investigation has identified concerns that can be addressed through a resolution agreement.

September 25, 2023, VDOE signed a resolution agreement with OCR.

What is the Nature of the Discrimination?

February 2022, VDOE announced that school divisions statewide were required to administer a "field test", for the purpose of collecting data for future Standard of Learning (SOLs) exams.

However, VDOE decided against providing the field test in accessible formats such as Braille and large print, and against allowing students with multiple testing accommodations to participate.

This messaging was forwarded to parents by local school divisions. In the case of Fairfax County Public Schools (FCPS), FCPS 504 "specialist" Tina Wrubluski emailed parents the following February 23, 2023:

"The Virginia Department of Education (VDOE) announced that school divisions are required to administer the online integrated reading/writing (IRW) field test to all students who are scheduled to take the online grade 5, 8, and End-of-Course (EOC) Standards of Learning (SOL) reading tests in spring 2023. IRW Field Test results will be used for VDOE data collection purposes and scores will not be available for any participants, so the data will not impact your child’s course grade or academic record.

"To prepare for the addition of this new item type in the grades 5, 8, and EOC SOL reading tests in spring 2024, a full scale, stand-alone field test will occur in March 2023 to try out the items with students.

"All students who are scheduled to take the online grades 5, 8, and EOC SOL reading tests in spring 2023 will participate in the online field test; however, 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.

"​​​​​​​Students who require accommodations to access these assessments will be provided classroom and/or state assessment testing accommodations documented in their current 504 Plan."

Although parents throughout Virginia expressed concerns with the discriminatory practices, FCPS and other school divisions chose to engage in the discrimination instead of taking a stand against it—even though FCPS, as one example, has a history of going to court and filing appeals if it disagrees with the governor or VDOE.

Why Did OCR Have to Get Involved?

The school divisions choices to follow VDOE into noncompliance echoed the actions that led to OCR finding FCPS in noncompliance during April 2020–June 2022. In both cases, individuals who should have known better allowed the noncompliance to occur, while others followed along without question, due to lack of appropriate training, fear of job loss, and so on.

When it was clear the local divisions wouldn't refuse the discrimination, it was on VDOE to change the practice. Instead, Samantha Hollins, the assistant superintendent of VDOE's department of special education and student services, exhibited an inability to understand the problems with excluding an entire population of students.

The Problem of Samantha Hollins

After I contacted Samantha Hollins about the field tests February 13. 2023, her response made it clear she didn't understand the problem:

"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.”

Unfortunately, Samantha's failure to identify discrimination isn't an isolated failure. With Hollins at the helm, Virginia's special education programs repeatedly have been found in noncompliance. Between just 2020 and 2023, the following occurred:

  • 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.
  • February 8, 2022 and September 1, 2022, USDOE OSEP issued subsequent letters (and a Sept. 1 chart) to VDOE addressing VDOE’s continued noncompliance.
  • 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.”
  • June 7, 2023, OCR opened an investigation into VDOE's field testing practices:
    • “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, OCR opened an investigation into VDOE's involvement in widespread, statewide noncompliance during COVID:
    • “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.”

OCR's Findings and Resolution Agreement with VDOE

In its letter announcing the resolution agreement, OCR outlined the facts it identified during its initial investigation:

"One way that Virginia assesses its students is through Standards of Learning (SOL) tests in reading and writing. In developing these tests, the VDOE occasionally has students take a “stand-alone field test” to assess its validity before finalizing it. While these tests do not officially count on a student’s record, they are given in real-life testing conditions and help determine what types of questions and format the finalized SOL will include. In 2022, the VDOE developed a new standalone field test for Virginia students in grades 5 and 8, as well as students taking the end-of-year course for the first time, as part of its SOL reading and writing tests. All Virginia school divisions administered this field test to its students in those grades in the spring of 2023. The stand-alone field test asked students to read a nonfiction passage based on history or science and answer four to six questions about the passage. It also presented students with a writing prompt based on the passage. The VDOE planned to use “deidentified data” from the stand-alone field test to determine the “viability of the passages and items and the prompts for future test administration,” and to develop training materials for scoring any future implemented prompts. The results from the stand-alone field test were not reported or included in student records.

"The VDOE acknowledged that it did not provide the stand-alone field test in paper, Braille, large print, or audio formats. As a result, students with disabilities requiring these accommodations did not participate in the stand-alone field test. However, the VDOE provided a read-aloud accommodation to students who required an audio accommodation unless the student’s Individualized Education Program (IEP) or Section 504 team determined that the accommodation was not an appropriate alternative. In those cases, students also did not participate in the standalone field test. The VDOE informed OCR that approximately 5,000 students throughout Virginia did not participate in the stand-alone field test and that, for some, this was because the read-aloud accommodation was not appropriate for the students’ individualized needs. According to the VDOE, accommodations such as Braille, large print, audio accommodations, and paper versions will be available for future field tests."

OCR's analysis identified the very issues that concerned parents—that their students were being excluded from participating and that they were not being represented in data collected:

"Based on the information obtained to date, OCR determined that the VDOE excluded some students with auditory and visual disabilities – particularly those for whom a read-aloud format did not serve as an appropriate accommodation – from participating in the stand-alone field test in spring 2023. OCR is concerned that this may not have accurately measured the performance of students with these types of disabilities and that the VDOE may not have accounted for how such students may have performed in its assessment of the validity of the stand-alone test. OCR is additionally concerned that the VDOE may have denied these students with the opportunity to take what could potentially amount to a practice exam in real-life testing conditions."

In addition to outlining training and other required action for VDOE, OCR stated:

"If it is not possible for the VDOE to identify students with auditory or vision impairments who were prohibited from initially taking the stand-alone field test because of their disability so that they may be administered the stand-alone field test, VDOE will not be able to use the results of the stand-alone field test."

Imagine If

Imagine if Samantha Hollins and/or her colleagues and/or local division leadership listened to parents and other stakeholders. A situation that resulted in school divisions statewide engaging in discrimination could have been prevented—and the investment of time and money required to address the discrimination potentially could have been invested in helping students instead.