Virginia Dept. of Education Announces Systemic Investigation of Fairfax County Public Schools, for Allegedly Failing to Implement IEP’s

October 18, 2022, Virginia Department of Education (VDOE) announced a new systemic investigation into Fairfax County Public Schools (FCPS).

The complaint on which the investigation is based alleges FCPS failed to implement Individualized Education Programs (IEPs) throughout the county, which is a violation of Individuals with Disabilities in Education Act (IDEA) and implementing Virginia regulations.

The Noncompliance in Which FCPS Allegedly Engaged

For years, during FCPS’s annual PSAT and/or SAT testing days, FCPS has refused to provide IEP services to students in grades 7th to 12th, and has forced these students to stay home from school even though 1) these students are expected to use the day to work on their own (without services); 2) other students throughout the county are provided a regular education day; and 3) other students throughout the county are presumably provided their services pursuant to their IEPs, IDEA, and implementing Virginia Regulations. In addition, students enrolled in academy courses have been forced to miss their classes because FCPS has cancelled academy courses and school shuttles to the courses.

October 29, 2020:

FCPS administered the PSAT/NMSQT. In advance of the testing, FCPS emailed messaging stating the following:

“Thursday, October 29 has been designated for asynchronous learning in FCPS high schools, so students who choose to take the PSAT/NMSQT will not miss synchronous learning time with their teachers.”

October 18, 2020, South County High School emailed messaging that it expected students to be working (even though they wouldn’t be provided services) and that October 29, 2020, was not a day off:

“For all other students, this will be an asynchronous day for students and based off a survey from our teacher leaders, it will be a catch up day for students and no new work will be assigned that day.  Please encourage your students, as we will, to take full advantage of this day to make sure they have completed assignments that are due or even past due.  While I would love to say that they should use the day to just be away from the computer, but technically it is not a day off.  Students need to use this day strategically.  Now, if stepping away is what they need to do, that is  a choice they can make, but they are still responsible for any work that is already due.” 

April 19, 2021:

FCPS held a PSAT 10 testing day. Students were advised that “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.” However, students were expected to work and other students throughout the county were attending school and receiving services. April 18, 2021, Langley High School provided evidence that it knew sophomores who weren’t taking the PSAT 10 were being forced to stay home, too, when it sent out an email stating the following:

“Sophomore Treat Day is Monday, April 19th. Treats will be handed out to Sophomores from 12:00-2:00 after they have completed their PSAT. Those Sophomores that are not taking the PSAT can come to the school to pick up their treat in the bus loop during that time.”

October 13, 2021:

FCPS held another testing day and advised that students would again be forced to miss school and services, and that academy courses (and shuttles to the courses) would be cancelled.

October 12, 2022:

FCPS held another testing day. It advised 7th and 8th graders attending high schools that include those grades, 9th graders, and anyone else not taking the PSAT or SAT, to stay home. In addition, it cancelled academy courses (and shuttles to the courses). FCPS stated it would hold school for CAT B high school students, however there would be an abbreviated school day with a two-hour early release. However, it was a regular school day for the rest of the county.

PSAT/SAT Test Day Background

Students who can afford to pay for the test on their own have the option of signing up for weekend testing through College Board, as do students who have accommodations that College Board’s testing site can provide. However, students with two-day accommodations (or other accommodations College Board’s sites can’t provide) are forced to take the test at school. (Additional Reading: “College Board’s Practices: Hardships, Hurdles & Headaches For Students Who Have Disabilities” and “College Board Fails to Provide “Universal Features” to All Students; Students with Accommodations Suffer“)

Although FCPS schools are open on weekends for other events, FCPS chooses to hold the PSAT and/or SAT testing it funds during the school week. This forces students who can’t pay for the tests themselves and/or student with accommodations such as two-day testing to 1) miss classes (two days in a row if they have accommodations) and 2) go without services two days in a row (if they have accommodations), simply because neither College Board nor FCPS offer weekend testing for these students.

Additional Missed Services

Whether students were taking the PSAT, SAT, SOL, or other tests, when they’ve missed class, FCPS has refused to provide services the students missed while taking these tests. This plays out throughout the school year for students with accommodations such as testing to completion, who need extra classes and sometimes multiple days to complete testing. In turn, they miss more classes and more services.

Additional Issues

Although VDOE was provided evidence for the 2021-22 school year that fell within the one-year investigation period, VDOE refused to include that information in its NOC and has limited the NOC to the October 12, 2022, testing date.

For years, FCPS forced students who have accommodations for extended time, and who were taking the PSAT or SAT, to arrange for their own transportation home, even though FCPS provided full transportation to general education students on those days. April 12, 2021, Office of Civil (OCR) launched an investigation into FCPS for its refusal to provide transportation, which is considered a related service. FCPS admitted fault in an email on which it inadvertently cc’d a parent. That email was subsequently provided to OCR as evidence of FCPS’s own acknowledgement of its noncompliance. (Additional Reading: “Office of Civil Rights Opens Investigation of Fairfax County Public Schools“). Just a few months earlier, in January 2021, OCR opened a countywide investigation after another instance of FCPS providing in-person school to some students but not others. (Additional Reading: “Fairfax County Pay-to-Play, 5-Days-a-Week, In-Person Education Model Generates Revenue for County; Sparks Civil Rights Investigation”)

During COVID closures, FCPS reduced students’ service hours countywide, stating that Monday was an asynchronous day, hence there wasn’t any new learning, hence students wouldn’t be provided services since no one was being educated. Yet, in the examples above, it is clear that FCPS has long-considered “asynchronous” days to be work days. Some students need help with their work. However, FCPS’s actions indicate that the students will not be provided needed services because it is an asynchronous day.


November 1, 2022, is FCPS’s response due date to VDOE’s NOC.

December 5, 2022, is VDOE’s findings due date.

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