Fairfax County Public School (FCPS) included unredacted records for over 35,000 students within my own kids' educational records.
Since 2016, I've warned FCPS about privacy violations. In 2017, I started filing state complaints based on privacy violations and withholding educational records. FCPS repeatedly denied or minimized the privacy violations and VDOE repeatedly failed its supervisory duties to ensure compliance. Sometimes VDOE made a finding, sometimes it didn't. When it did make a finding, the corrective action plan failed to ensure the noncompliance stopped.
Seven years later, my head and heart hurt too much to write yet another article on privacy violations.
Please head over to The 74 Million and read Linda Jacobson's in-depth investigative article on FCPS' failure to secure the privacy of the 35,000+ students, and more: "Exclusive: Virginia’s Fairfax Schools Expose Thousands of Sensitive Student Records" If you're curious about the types of records, see the following list:
- 33,000+ students: Nine spreadsheets listing all students divisionwide with IEPs or 504 Plans. Five list over 26,000 students and four list over 33,000 students.
- 10,000+ students: December 1 count spreadsheet
- 1,593 students: Academic advising spreadsheet for 9th and 10th grade students by PE classes and 11th grade students by History class
- 1,500+ students: 7,468 teacher recommendations and notes spreadsheet
- 1,400+ students: PSAT and PSAT NMSQT scores
- 1,000+ students: FCPSMed caseload, related services
- 1,000+ students: mental health tracking data, to include marking students with suicidal ideation, drug addiction, domestic violence at home, and so on.
- 1,000+ students: spreadsheet listing students and their intent to attend.
- 300+ students: spreadsheet of course requests for students, listing their primary disability and placement
- 200+ students: list of students with IEPs due.
- 150+ students: three spreadsheets of testing accommodations for sped students
- 150+ students: Grade 4-6 PE gradebook
- 100+ students: spreadsheet of sped and esol 1-6b students taking an SOL
- 100+ students: Three quarters of grades for sped students, pulled according to the sped teacher to whom they’re assigned.
- 100+ students: multiple spreadsheets listing legal matters
- 90 students: 2019 End of Year goal data
- 50+ students: Math eCart data
- 1: One FCPS state complaint response for a student
- 1: One heartbreaking email from a father, telling a school principal about his child being sexually assaulted
Also included in my kids' educational records:
- Closed meeting minutes
- Emails (toxic and otherwise)
- Proof that some "leaders" have based special education-related decisions on how connected a parent is, rather than what's appropriate for the student (and what happens to be in line with federal regulations)
Scroll down to start reading these records—or stick with me for a bit of background provided within the following paragraphs.
It's Deja Vu All Over Again
In 2021, FCPS provided FCPS parent Debra Tisler with a FOIA response including FCPS legal invoices. Debra shared them with me. I immediately started redacting all 1,316 pages (because FCPS failed to redact private information about students), and then began publishing information related to the legal invoices.
FCPS' response was to take us to court and lead the public to believe it sued us because it was concerned about private student information being published. It failed to advise the public that, during our first court appearance, its lawyer Ryan Bates stated FCPS' appreciation that student names had been redacted before documents were published.
"As far as we can tell, and I believe as — as to what was posted on the website, I think it was less than 1000 [pages] was actually posted on the website. And from what we can tell, they redacted all of the student names, and we appreciate that." ~ Ryan Bates, FCPS counsel
Judge Richard E. Gardiner's final decision was in favor of me and Debra. He compared the case to the Pentagon Papers, stated the case was “about as much a prior restraint as there ever could be”, and characterized one of the Board’s arguments as “almost frivolous.” In addition, Gardiner stated the following:
“What we’re doing here is — what the defendants are doing is enforcing their rights under the First Amendment, and those rights, enforcing their rights under the First Amendment, is about as high in the public interest scale as you can get.”
Two years later . . .
Legal Invoices, Court Cases, Noncompliance, Closed Meeting Minutes, Toxic Emails, and More
A Few Notes Before You Start Reading
Reviews and Redactions: I spent the past week going through thousands of pages of records and redacting names and initials of students, parents, plaintiffs in various cases; case numbers; and information about anyone and anything I didn't recognize and/or haven't yet had time to verify is already in the public arena. The items left unredacted: Names of FCPS lawyers and leadership; names of lawyers in the community who are already known for working on special education cases related to FCPS families; names of individuals who submitted FOIA requests (since this can be FOIA'd), and/or related information that already is in the public arena.
Complaints and Alerts: I filed complaints with U.S. Department of Education's (USDOE) Office for Civil Rights and Office of Inspector General; made USDOE's Office of Special Education Programs (OSEP), Lisa Coons, VDOE's Superintendent of Public Instruction, and Michelle Reid, FCPS's superintendent, aware of the issues; and contacted families. For the latter, I've been compiling files for families whose information appears on numerous occasions within my own kids' educational records. In the interest of time, I started with families I know and/or know of, and whose contact information I already have. This has been a slow process, because I'm redacting each document before calling the families and sending the records.
August 26, 2019 to September 9, 2019: FCPS Staff on Appealing VDOE Decision Against FCPS & Thoughts on "Consent" for Comprehensive Evaluations
In 2019 a parent won a state complaint against FCPS. She repeatedly provided FCPS consent to administer a comprehensive evaluation to her child. FCPS pushed back, wanting her to sign off on the evaluations it had chosen and specified on its form. The parent continued to tell FCPS she consented to a comprehensive evaluation. FCPS continued pushing back. This went on for about a year, the student wasn't evaluated, the parent filed a state complaint — and the parent won.
FCPS staff immediately expressed a wish to appeal in this string of emails. Two comments by FCPS's out-of-house counsel John Cafferky jumped out at me:
"Form or no form, it seems to me that school divisions should not have to guess as to which evaluations they have permission to conduct."
". . . since ordinarily VDOE will not hold execution of CAP pending the disposition of a state complaint appeal -- you might consider holding an IEP, and just coming to the conclusion that this alleged noncompliance did not result in any educational deprivation that requires compensatory education. Simply put, do we think that the failure to conduct the specified evaluation at the time when "consent" was allegedly received, and the time they were actually conducted (were they?) made any substantive difference to the education of this student? If not, we should consider having an IEP team say that. My experience is that VDOE ordinarily will not second-guess this type of substantive decision by an IEP team considering compensatory education."
September 2019: FCPS E-mails About Paying for/Refusing an IEE
FCPS' Independent Educational Evaluations (IEE) emails, circa 2019, provide an interesting FCPS side to the story of "16 Years of Noncompliance: Virginia Department of Education Fails Students and to Perform Its General Supervisory Duties.
September 9, 2019:
Dawn Schaefer emailed Jane Strong:
“We expected [Parent] to choose Mindwell based on her chatter on social media and with us. I’m wondering if you’d like us to grant the full cost at Mindwell or hold the line at $2400. This evaluation would not be above and beyond the evaluations done by other evaluators for our established rate of $2400.”
September 10, 2019:
Dawn Schaefer emailed Jane Strong:
“We just poured over our data since 2017, and we have very rarely had evaluators seek additional payment from us. Mindwell has been charging $3600-4000 for psychoeducational evaluations since at least 2017. [Parent] has received all of the documentation regarding our fee setting via FOIA. Lourrie is going to respond to her in the morning and ask what her data is to say the customary cost is $3800.”
Jane Strong emailed Dawn Schaefer:
“Have we paid mindwell that high a fee in the past?”
Dawn Schaefer emailed Jane Strong:
“Yes, prior to us resetting our fee schedule in May 2017.”
September 26, 2019:
Lourrie Duddridge responded to another staff member about the IEE-related FOIA submitted by the parent and admitted FCPS' 2019 rates were out of date:
"We did no research in terms of usual and customary costs for the 18 - 19 school year."
FCPS knew its rates were outdated and that it had paid the same Mindwell provider the same amount at least two years prior, but chose to refuse the parent's request and failed to file for due process to defend its decision. Twelve years earlier, FCPS took the same action against the same parent. Back then, VDOE found against FCPS. But, 12 years later? Nope.
emails (These are out of order, so you'll have to jump around just a bit.)
November 27, 2019: Blankinship & Keith Billing Statements
January 7, 2020: In-House Counsel John Foster's Closed Meeting Agenda
This is an email from FCPS' in-house counsel John Foster, with his agenda for what he plans to handle in the closed meeting.
February 19, 2020: In-House Counsel John Foster's Litigations List of Students and Parents
According to FCPS counsel John Foster, during a closed session, FCSB requested "a list of students, and their parents, who 1) are in litigation against the School Board or FCPS, or have threatened to file a lawsuit, or 2) are involved in a special education matter with FCPS."
July 9, 2020: In-House Counsel John Foster's on FCSB's Annual Organizing Resolution, Including Appointment of Outside Law Firms
According to FCPS counsel John Foster, on July 9, 2020, "the School Board will approve its annual organizing resolution, including the annual appointment of outside law firms 'as assigned and managed by the Office of Division Counsel.' Several of you have asked about the outside firms and why and how they are chosen for inclusion in the resolution. Please see the attached memorandum that discusses those questions."
The memorandum is missing, but scroll down to November 9, 2020, for the longer string in this email and to view a later attachment.
September 2, 2020: Updated Hearing List
Dawn Schaefer emailed an updated hearings list to "keep things straight regarding all of the new hearings that were requested within the last week or so."
September 3, 2020: 1) Updated Hearing List & 2) Resolution Meeting Advice from John Cafferky
2) FCPS's out-of-house counsel John Cafferky is acknowledged by VDOE in a list of "persons who contributed to the development of ["2008 Parents' Guide to Special Education Dispute Resolution"] and/or who served as a reviewer." VDOE goes on to state, "We appreciate their efforts in assisting us produce a document that will serve as a resource for parents and service providers."
Although it is a guide for parents and service providers, its section on resolution meetings doesn't include the reminder Cafferky provided to FCPS staff in this September 3, 2020, email:
"Remember that even if it does not lead to a resolution, a resolution meeting is a good opportunity to make whatever proposal you want the hearing officer to consider, and press the other side for information. . . . Someone should take good notes. We can then do a summary letter that's admissible in the case."
If VDOE updates the guide, perhaps it will include Cafferky's reminder that the resolution meeting can be used to "press the other side for information".
September 8, 2020: Agenda for FCPS OSEPS Leadership Meeting
September 9, 2020: Updated Hearing List
September 10, 2020: Updated Hearing List
Dawn's September 16, 2020: Updated Hearing List
September 20, 2020: Updated Hearing List
October 1, 2020: Updated Hearing List
October 2, 2020: Dawn Schaefer's Email on Appealing a VDOE Complaint Finding
On this day, VDOE notified FCPS that it lost an IEE-related state complaint I filed. The complaint was rooted in FCPS' refusal to comply with the U.S. Department of Education's findings from June 2020, and its directive that the entire state had to comply with federal regulations related to IEEs. Dawn's response follows below:
"I think we need to appeal the findings regarding IEEs. VDOE has not changed their regulation yet, and they are essentially telling us we have to implement OSEP's opinion-- that they are apparently appealing themselves. It makes no sense. I'll stand down if others think we should just pay for the IEE. Just know this finding has far reaching consequences. This parent is very well-connected and has her own advocacy website."
I thought decisions regarding students who have special education needs were supposed to be based on 1) compliance with IDEA and implementing state regulations and 2) the unique needs of the student.
- "Virginia Regulation Restricts Parents' IEE Rights"
- "Fairfax County Public Schools Failed to Comply with Federal Regulations; Continued to Deny IEEs"
- "FCPS FOIA Response: How FCPS Ascertains the Prevailing Rate for IEE Assessments and Written Guidelines for Independent Education Evaluations"
- "16 Years of Noncompliance: Virginia Department of Education Fails Students and to Perform Its General Supervisory Duties"
October 9, 2020: Pending Legal Fees = $284,081.33
October 12, 2020: Pending Legal Fees = $599,612.73
October 22, 2020: Updated Hearing List
October 22, 2020–April 14, 2021: Medicaid, Caseload, Dec 1 Count Conversations
October 26, 2020: Pending Legal Fees = $632,370.58
October 29, 2020: Updated Hearing List
November 2, 2020: Updated Hearing List
November 9, 2020: In-House Counsel John Foster, Part Deux
This strand began in a July 2020 email from John Foster, about the annual appointment of outside law firms (see earlier listing above). The strand was expanded to include more messages and a later attachment.
November 10, 2020: Updated Hearing List
November 13, 2020: Updated Hearing List
February 26, 2021: Blankingship & Keith's January 2021 Billing Statements
March 4, 2021: John Foster's Weekly Emails for Meetings with "Scott"
According to her March 4, 2021, email to John Foster, Anne Benedicto provided an email each Thursday afternoon in advance of John's meetings with "Scott" and there is a "private BoardDocs" on which the case information was being posted.
email / lawsuits - updates JEF spreadsheet as of 2_25_2021 / Case information
April 22, 2021: John Foster's Weekly Emails for Meetings with "Scott"
Anne Benedicto confirmed the following about her weekly emails to John Foster:
"Per your request to send you an update each Thursday afternoon (in advance of your Friday meetings with Scott), please see attached the updated spreadsheet through 4-22-2021. This is information has been gathered from your email Inbox regarding new and ongoing Lawsuits to include documents and emails associated with these matters."
email / spreadsheets and zip file
April 26, 2021: John Foster's Weekly Check-In
April 28, 2021: $276,736.47, "Non-Cares"; $183,759.50, "Cares Act"
April 29, 2021
April 30, 2021: Robert Falconi's Writing Exercise, From 2019 FCPS Interview
Anne Benedicto emails John Foster "the writing exercise and specifically the writing exercise from Bob Falconi when he interviewed for the staff attorney position in 2019."
May 3, 2021: School Board Meeting Notes, Invoices, $$$ Spent
email / pending approvals needed as of 5-3-2-21 / FMR as of 5_3_2021 / Pending invoice breakdown 5-3-2021 sheet 1 / Pending invoice breakdown 5-3-2021 sheet 2 / 4_28_2021 Chairs Meeting Notes / Updated New and Ongoing Lawsuits as of 4-29-2021
May 6, 2021: John Foser's Weekly Update
May 10, 2021: School Board Meeting Notes, Invoices, $$$ Spent
email / pending approvals as of 5-10-21 / FMR as of 5_10_2021 / Pending invoice breakdown 5-10-2021 sheet 1 / Pending invoice breakdown 5-10-2021 sheet 2 / 5_5_2021 Chairs Meeting Notes / Lawsuits - updated JEF spreadsheet 5-6-2021