VA Parents Say Special Education Cases Are Rigged Against Them – The 74

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The Virginia Department of Education routinely rules against parents of students with disabilities who sue to ensure their children receive an adequate education, according to a class-action lawsuit filed in federal court this week.

The complaint, which also names Fairfax County Public Schools in Northern Virginia, alleges that the state maintains a list of “school-friendly hearings officers” who are more likely to rule against families who challenge district decisions about services for their children.

Trevor and Vivian Chaplick, parents of a Fairfax student with autism, ADHD and other “severe” disabilities, along with a nonprofit they founded, filed the lawsuit on behalf of all the state’s students who had participated in due process since 2010. Virginia state superintendent Jillian Balow and Fairfax schools superintendent Michelle Reid – last year’s national superintendent of the year – are also named as defendants.

“Due process is a parent’s recourse if something goes wrong,” said Callie Oettinger, a Fairfax parent who runs a monitoring website that documents special education grievances in the district. “What happens is they have a lawyer and spend millions to fight you.”

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The lawsuit comes as parents across the state are seeking compensation or replacement benefits due to school closures during the pandemic. Under the Persons with Disabilities Act, districts are required to evaluate students and provide services to them when educators fail to follow a child’s Individualized Education Program (IEP). But the lawsuit alleges Virginia’s system was rigged against parents long before the pandemic hit.

According to the complaint, hearing officials ruled in favor of Northern Virginia families in only three of 395 cases between 2010 and 2021. Statewide, there have been just 13 cases out of 847 in which hearing officials found districts guilty over the same 11-year period, according to documents obtained by the Chaplicks through public records.

Twenty-two of the hearing officers who serve as judges in such cases “have remained virtually unchanged over the past two decades, representing two generations of disabled children seeking a better education under IDEA,” the complaint says. “Despite (or because of) the incredibly one-sided findings of these hearing officers, the VDOE continued to recertify the same 22 hearing officers.”

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Due to their son’s serious needs and aggressive behavior, the Chaplinks asked the district to place their son in a boarding school. The district declined, and as the parents prepared to file due process, a district social worker told them they were going to lose. They thought the employee was exaggerating — that is, until they collected the data.

Charles Pyle, a spokesman for the Virginia Department of Education, said officials would not comment on pending litigation.

“The department is committed to ensuring that students with disabilities receive all the benefits and supports to which they are entitled under federal and state law,” he said.

Julie Moult, a spokeswoman for the Fairfax District, said officers were not served with the complaint and could not comment.

Reid, who is new to Fairfax this year, was previously the superintendent of the Northshore School District near Seattle, the first in the country to close a school because of COVID. With approximately 23,000 students, the district is a fraction of the size of Fairfax, which has an enrollment of approximately 180,000.

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“It’s That Hard”

The case is the latest investigation into whether Fairfax — one of the largest counties in the country — is denying students with disabilities civil rights. In January 2021, in the final days of the Trump administration, the Office of Civil Rights opened an investigation into the district’s handling of services for students with disabilities during school closures.

Kimberly Richie, who then headed the civil rights department, took action after seeing news reports of schools opening up to childcare at parents’ expense — but not for students with IEPs. Now Richie is the Assistant Superintendent at the Virginia Department of Education, which has a department that includes Special Education. Oettinger sees this as a good sign.

“These were people trying to actually do something before they left office,” she said.

Before the pandemic, parents sued the district for physical restraint and seclusion of students with disabilities. In December 2021, she agreed with the plaintiffs and disability rights organizations to ban the practice.

The new lawsuit includes the names and rulings of hearing officials in Northern Virginia and across the state. One is Frank Aschmann, an Alexandria, Virginia attorney who has ruled in favor of the parents in one of 62 cases over a 20-year period.

Debra Tisler was one of those 61 parents he ruled against. With a severely dyslexic son, she asked Fairfax District to screen him in fourth grade, but she says they kept putting her off for a year — even though she had been the district’s special education teacher from 1997 to 2014.

“It’s that hard,” she said, referring to efforts to help her son achieve the expert-recommended literacy. She taught him herself, but had to hire private speech and language teachers. “In 6th grade he had hit a complete wall.”

She petitioned for a due process in 2019, arguing that the county would not give her access to her son’s educational records to prepare a case and that they had failed to provide him with an adequate literacy program.

Aschmann ruled against the family on several counts, including refusing to force the district to release records and noting that the student’s struggles in his Spanish class were not evidence that the district had failed to implement its IEP.

Aschmann did not answer a call for comment.

“You’re ruining children’s lives,” said Tisler, who now volunteers as an advocate for other families and serves as an expert witness at due process hearings. “All they care about is how much money they get.”

In January 2020, a bill shows that Fairfax paid Aschmann $12,400 for the 99 hours he spent on the case of Tisler’s son. Parents who lose to their district, she says, can sue in state or federal court. States tend to refer cases to federal courts, but most families, she said, don’t have the financial resources to pursue cases that far.

“You just get pushed around,” she says.

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