Civil rights lawyers have expanded the scope of their class action lawsuit against the Fairfax County School Board and the Virginia Department of Education after more families came forward alleging the state had denied students their federally-mandated special education services.

Law firms Susman Godfrey and Merritt Law, along with the Civil Rights Clinic of Georgetown Law School, filed the amended complaint on Friday. Jan. 20. The broadened lawsuit builds the original class action filed in Sept. 2022, which claimed that the Fairfax County School Board and the state’s department of education violated the Individuals with Disabilities Education Act (IDEA) by denying students and families a fair and unbiased process when raising concerns about specialized education plans.

The new complaint alleges that the state’s department of education “was not only aware of school districts denying disabled students their guaranteed federal rights under the IDEA, but was actively complicit in ensuring students did not receive services,” according to a press release on Monday. In addition to families’ and officials’ testimony, the updated complaint is also based on additional information revealed through public records requests, according to Bill Merrill, a lawyer with Susman Godfrey.

“Fairfax County Public Schools and the Virginia Department of Education have created this rigged system by employing many tactics including obstruction, burden, delay, concealment, bullying, and outright harassment that collectively are designed prevent disabled students from obtaining the services to which they are entitled under the IDEA,” reads the new complaint. The Fairfax County School Board did not immediately return DCist/WAMU’s request for comment. A spokesperson for Fairfax Public Schools declined to comment on the suit, and a spokesperson for VDOE referred DCist/WAMU to the state attorney general, Jason Miyares’ office, who declined to comment.

IDEA, passed in 1975, requires publicly funded schools to educate children with disabilities in a way that meets their specific needs; this includes the creation of an IEP, or individualized education program. (According to a report last year, about 15% of students in Fairfax County Public Schools have an IEP.) IDEA also ensures that the parents or guardians of the child have an opportunity to weigh in on that IEP. Should a parent or guardian take issue or disagree, IDEA entitles them to a due process hearing before an objective hearing officer. Laying the groundwork for the 2022 class action, a Freedom of Information Act investigation by a Fairfax County Public Schools family found that of all hearings requested in Northern Virginia over the past decade, 83% of the hearing officers had never ruled in the child or family’s favor. Across Virginia, about two-thirds of hearing officers had not ruled in favor of the child in two decades, and over the past 20 years, parents won less than 2% of the 1,400 due process cases filed under IDEA. Nationally, the average percentage of cases won by parents or guardians is around 30%.

“It makes Virginia the worst state of any major state in the country in the way it treats its disabled [students] in these due process hearings, said Trevor Chaplick, a lead plaintiff, in an interview with DCist and WAMU on Monday.

The updated suit, filed in the U.S. District Court for the Eastern District, alleges that that the VDOE and school districts pressured the “objective” hearing officers to rule against families. It also broadens the scope of the case, moving beyond the hearing process to allege that the VDOE and school district have at various points in the creation of IEPs for students withheld information from parents, encouraged grade padding to suggest a student’s false progress, and failed to conduct proper investigations of denial of services.

“All of these parents that have come forward with real human testimony from real human beings saying this system, they fight against us, and it’s set up to fight parents and deny services for disabled children,” Chaplick said. “It’s really, end to end, a flawed system, impacting thousands of disabled children — not just now but in the past, and it’ll continue.”

Chaplick and his wife Vivian founded Hear Our Voices, an advocacy nonprofit that also serves as a plaintiff in the suit. The Chaplicks were prompted to file the FIOA request that led to the class action suit while trying to challenge their child’s IEP. They say they were told by a FCPS social worker that it would be a fruitless venture, as they “would lose.” The amended complaint includes two new plaintiffs: James and Sheila Bingham, the parents of M.B., a 15-year-old with multiple learning disabilities, including ADHD and dyslexia, as well as challenges with behavior and social skills.

According to the filing, between 2018 and 2021, FCPS completely failed to implement [M.B.’s] IEP,” as he struggled through placements at different schools, showing no progress. In the fall of 2021, the Binghams placed M.B. at the non-public Phillips School, which developed an IEP for M.B. that helped him improve. Still, FCPS insisted that a public school setting was the proper placement for M.B. In January 2022, the Binghams filed an appeal to challenge the IEP created for M.B. by FCPS, and at a hearing, testified with evidence to M.B.’s unmet needs during the 2018-2021 period. A hearing office nonetheless concluded that the IEP and school placements were sufficient, and “denied all relief to M.B. and his parents,” according to the suit.

“If they are not receiving the services they need, it can have a dramatic impact…they can be forever impacted,” Merrill said. “At 18, 20, 25-years-old, you can’t go back and fix what was done at seven, or fourteen. The kind of educational and emotional damage that occurs can be dramatic.”

Merrill said the state filed a motion to dismiss the initial complaint on largely technical grounds, and he said he would not surprised if the state did the same with the amendment. But as a parent and lead plaintiff, Chaplick says they are seeking to reveal the problems and alleged violations and reform the treatment of disabled students in Virginia, whether it’s done via the courts or not.

“Whatever we can’t accomplish through the court, we want to then take to the state legislature and fix through changing the law,” Chaplick said. “But we want to reform the system. It’s profoundly flawed, and it has created many, many victims and will continue to do so until someone steps in and changes it.”

The amended lawsuit comes after multiple years of scrutiny over the treatment of students with disabilities in the state — and in Fairfax county specifically. In late November 2022, the U.S. Department of Education completed a nearly two-year long investigation into Fairfax County Public Schools, concluding that FCPS failed to meet the needs of students with disabilities during the pandemic. In a 23-page letter, the Education Department’s Office for Civil Rights found that despite the federal law requiring public schools to provide free appropriate public education (FAPE), FCPS did not do so during the transition to remote learning.

Last October, a report commissioned by the school board found that students with disabilities in FCPS perform substantially lower than their classmates on standardized tests, and faced significantly higher rates of suspension. The report also revealed deep racial and geographic disparities: Black students with IEPs scored 43% to 49% lower than Black students without IEPs over a three-year period. The class action also comes more than year after FCPS settled a lawsuit over the issue of seclusion and restraint against students with disabilities.

Previously:
Fairfax County Faces Class Action Suit For Violating Disabled Students’ Rights