Under federal law, children with disabilities attending public school must receive a special course of instruction known as an Individual Education Plan, or IEP, meant to ensure they have the same learning opportunities as students without disabilities. But a few weeks after schools shut down, according to the complaint and other documents obtained by The Post, FCPS told parents it was pausing these plans until brick-and-mortar schooling resumes.
“Students have sustained lost educational opportunity where FCPS has materially failed to implement their IEPs,” the complaint says.
FCPS spokeswoman Lucy Caldwell said the school district, which educates 189,000 students across Northern Virginia — 28,400 of whom follow IEPs — has received the complaint and is reviewing it. She confirmed that IEPs “will be implemented when we resume school” and said officials are working to develop temporary learning schedules for these students in the interim.
The school district has until June 4 to respond. It can also try to reach an “early resolution” with the parents by that deadline, forestalling a formal investigation. If the investigation goes forward, FCPS may be forced to develop a plan to correct its violations, subject to approval from the education department. The district could also be required to award “compensatory services” to the complainants, including money.
Fairfax schools’ transition to distance learning has been plagued by privacy breaches, virtual harassment and technological failures. Caldwell said the district is doing its best to serve all students, including those with disabilities, but is hampered by the “constraints of distance learning.”
“The FCPS distance learning plan is not offering instruction in the same way or amount as during the school year,” Caldwell said, “and special-education services are not the same, either.”
As schools closed in March, the idea of trying to equitably serve special-education students so flummoxed some districts that they simply did not offer online learning. U.S. Education Secretary Betsy DeVos declined requests from some schools to waive requirements of the Individuals with Disabilities Education Act during the pandemic, saying districts would use “ingenuity, innovation, and grit” to find ways to serve those students.
Diane Smith Howard, managing attorney for criminal and juvenile justice at the National Disability Rights Network, said the investigation of Fairfax County is the first of its kind her organization is aware of nationwide. But more are likely to follow, she predicted, because so many districts are struggling to serve children with disabilities. While some districts have come up with innovative solutions to continue special education — such as holding speech therapy sessions via videoconference — others are “basically trying to dodge the law,” Howard said.
“Either it’s school or it’s not,” Howard said. “There’s not a middle range where you can supply school to some kids and not others.”
One of the parents who filed the complaint, a mother of a high school student with dyslexia, said the quality of her child’s education has seriously diminished since schools closed in mid-March.
The parent, who spoke on the condition of anonymity to protect her son’s privacy, said her son used to receive hours of specialized instruction from teachers in most of his classes. After the closures, he signed into an online class and tried his best to follow along, largely without assistance.
“The extent of the services that my son was receiving was that a special-education teacher was logged on [to video class] while the general-education teacher teaches,” the parent said. “How can that be considered a service? She’s literally just there, breathing.”
On April 28, her son’s case manager emailed to say the school was developing a “Temporary Learning Plan” or TLP, a phrase the parent had never heard of before. The plan would not replace the IEP, the case manager wrote, but would “reflect the changes in educational delivery from in person classes to online classes.”
The email also announced that “once schools physically reopen, your child’s IEP will resume.”
Caldwell said the district decided to offer TLPs on the recommendation of its legal counsel. She said the plans reflect “what is feasible to provide to students with disabilities within the . . . distance learning format.” The school system had completed plans for 16,814 students as of Monday afternoon, she said. One hundred and six parents have declined to agree to a TLP.
The mother wrote back to her son’s case manager insisting he needed his “full IEP,” although she was willing to work with school staffers to develop unorthodox fixes for services impossible to offer remotely. A few days later his TLP arrived. It was a “bastardized version” of his IEP, the mother said, lacking concrete goals for improvement and essentially suggesting taking part in virtual office hours for help.
A few days after that, the mother decided to join with other parents in filing a complaint.