Due Process Hearings are supposed to be impartial—at least that’s what federal regulations state (See §300.511).
Does the Following Smell Neutral?
Virginia Hearing Officer Morgan Brooke-Devlin worked in a Blankingship & Keith office during a due process hearing for which she was assigned to be the hearing officer.
In addition to its lawyers being bcc’d on e-mails from teachers to students, Blankingship & Keith lawyers, among other things, represent school divisions during due process hearings.
June 4, 2020, Morgan emailed Fairfax County Public Schools (FCPS) Due Process and Eligibility Coordinator Dawn Schaefer, to let Dawn know she was available to be the hearing officer for a FCPS hearing. In Morgan’s email to Dawn, she stated:
I am, however, in the middle of a hearing for Arlington. I am conducting the hearing by video conference from Mr. Cafferky’s office. (I am alone in a separate conference room!) So, please delay as long as you can to appoint me. I hope you and yours are well. Feel free to give me a call to discuss. Best regards, MBD
It doesn’t matter if Morgan paid to rent the space or Blankingship & Keith gave it to her for free, because either way that puts Morgan in the place of relying on the outside firm in order to do the hearing. Payment to and/or relying on a favor from the firm dictate that her neutrality be brought into question.
Delaying the Timeline
Morgan’s request that FCPS delay the assignment impacts the timeline.
FCPS has 15 days from the receipt of the filing to assign a hearing officer (See §1415(c)(2)(C)). The hearing officer has five days within being assigned to determine if the filing meets requirements to be deemed sufficient (See Section §1415 (c) (2) (D)).
If the school division waits 15 days to make the assignment and the hearing officer takes another five to determine sufficiency, that puts the timeline at 20 days.
If the parents need to amend their filing, they must obtain the permission of the opposing party and the hearing officer. The hearing officer may not grant permission within five days of the start of the hearing (See §1415(c)(2)(E)(i)(II).
If a resolution isn’t agreed upon within 30 days of the filing, the hearing must start (See §1415(f)(1)(B)(ii)). Hence, if the school division and hearing officer take all the time they are allocated, the parents have just a few days to request an amendment if necessary. While it is on the parents to be clear about their request from the start, the parents still have a right to amend, and that timeline is shortened by delays.
In addition, FCPS has been known to share the hearing officer assignment in advance of making the parent aware of the assignment, which gives firms like Blankingship & Keith a jump start on filing subpoenas.
The HO’s Relationship with the School Division
All Morgan had to do was tell Dawn that she 1) was not currently available or 2) would be available on X date. Instead, she felt comfortable enough to:
1) Ask Dawn to delay the assignment;
2) Tell Dawn she was working out of the office of FCPS’ private counsel Blankingship & Keith;
3) Invite Dawn to call to discuss the hearing with her; and
4) Put the school division in the position of having advance knowledge of the hearing officer assignment well in advance of the parent.
Virginia Department of Education’s Role
Morgan was comfortable enough to share the string of emails with the Virginia Department of Education’s (VDOE) Kathryn Jones.
Kathryn’s response to Morgan indicates that she was comfortable with the situation, too. So comfortable, in fact, that the assignment was delayed with her knowledge as well.6.5.20-emails-HO-Morgan-Brooke-Devlin-Dawn-Schaefer-Kathryn-Jones