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Class Action Lawsuit:
Why Do Virginia Parents of Children with Disabilities Prevail in Just 1.5% of Cases?
by Pete Wright and Pam Wright
On September 21, 2022, the parents of a child with a disability filed a Class Action lawsuit against the Virginia Department of Education (VDOE) and the Fairfax County School Board (FCSB).
Download the Complaint in D.C. v. Fairfax County Public Schools and Virginia Department of Education.
In their Complaint, the Plaintiffs allege that parents prevail in less than 1.5% of due process cases, far lower than the average in other states. Why? The parents claim that VDOE maintains a "carefully curated group of hearing officers who have ruled for schools and against parents for decades." The parents cite facts from documents obtained through Freedom of Information Act ("FOIA") requests to support their claims - that "Virginia parents and children with disabilities and special needs almost always lose, especially parents in Northern Virginia."
- Between 2010 and July 2021, 1.5% of Virginia parents who initiated a due process hearing - only 13 in all 847 cases brought in Virginia - received a favorable ruling during that 11-year period.
- Between 2010 and July 2021, less than 1% of Northern Virginia parents who initiated a due process hearing received a favorable ruling . . . only 3 rulings in 395 cases over more than 11 years.
- 83% of Virginia hearing officers have never ruled in favor of a Northern Virginia family over eleven-plus years, from 2010 to July 2021.
- During the last twenty years, approximately two thirds of the hearing officers have never ruled in favor of parents . . .
Why are the odds so high against children with disabilities and and their families in Virginia?
"One reason for the remarkably low success rate is that the Virginia Department of Education — in cooperation with local education agencies / school systems ("LEAs") like Fairfax County Public Schools ("FCPS") — developed and maintain an exclusive roster of school-friendly hearing officers, whom the VDOE and FCPS have kept in place for more than a decade."
Under state law, the VDOE is responsible for:
- certifying hearing officers to hear special education due process cases,
- determining the number of hearing officers who will be certified,
- reviewing hearing officer actions, and
- recertifying hearing officers.
"The VDOE is also
responsible for training and compensating hearing officers (emphasis added). These powers give the VDOE near absolute control over these hearing officers."
"The VDOE carefully curated a group of twenty-two (22) hearing officers who nearly always rule in favor of school districts and against parents. Despite (or because of) the incredibly one-sided outcomes from these hearing officers, the VDOE continued to recertify these same 22 hearing officers."
"This same core group of twenty-two (22) hearing officers responsible for these decisions has been virtually unchanged over the last two decades which represents two generations of disabled children who sought an appropriate education under the IDEA."
"The VDOE failed to add a single hearing officer during the entire 11-year period, ensuring that no one except for VDOE’s own tried-and-tested allies would adjudicate due process hearings."
"The result has been an entire generation of disabled children and their parents facing a near-insurmountable hurdle to obtaining a fair due process hearing."
"D.C. and his parents are just one of hundreds of families in Virginia who have suffered from a biased system that confirms LEA decisions as a matter of course, no matter how strong the contradictory evidence."
Download the Complaint in D.C. v. Fairfax County Public Schools and Virginia Department of Education.
What is the Law About Hearing Officers?
The Individuals with Disabilities Act (IDEA) includes rules of procedure for resolving disputes between parents and schools. These rules include mediation, due process hearings, and appeals to state or federal court. The IDEA requires that parents have an opportunity for a fair due process hearing before an impartial hearing officer. 34 CFR § 300.511(c).
“The due process hearing is a critical feature of the IDEA. It is the only process through which children with disabilities and their parents can challenge a school district’s refusal to provide services or accommodations necessary to ensure that a disabled child receives a free appropriate public education guaranteed by the IDEA.”
“To ensure that the due process hearing is fair and impartial, the hearing officer presiding over the due process hearing must be knowledgeable, impartial, objective, and free of bias.”
“If hearing officers always, or nearly always, rule in favor of the school district and against the disabled child, they virtually eliminate the ability of disabled children and their parents to obtain the services and accommodations guaranteed under the IDEA when schools refuse to provide them.”
“Parents who face near-certain failure are deterred from initiating legitimate challenges. These families are forced to resign themselves to the sad truth that whatever the school district says goes.”
Virginia Hearing Officers Rule Against Parents at Far Higher Rates Than Other States
A few national studies have analyzed hearing officer statistics.[1]
One recent, national study of hearing officer decision statistics across multiple states was conducted in the Gershwin-Mueller and Carranza study, which analyzed 575 due process cases under the IDEA that occurred in 41 states from 2005 to 2006. In these hearings, school districts prevailed 58.6% of the time, parents prevailed 30.4% of the time, with 10.4% of these cases involving a split decision in which the school district or the parents obtained partial relief.[2]
Through FOIA requests, the parents in D.C. obtained and compiled hearing officer data for Virginia. This data shows Virginia’s hearing officer ruling record relative to national and state-by-state statistics.
In Virginia, parents prevailed in just over 1.5% of cases between 2010 and 2021. Two-thirds of Virginia hearing officers have never ruled in favor of a parent in twenty years. These facts are the intended consequence of Virginia’s practice of only certifying hearing officers who have issued favorable decisions to school districts 98.5% of the time.
VDOE Certifies and Retains Hearing Officers Who Are Biased Due to Financial Interests
VDOE pays substantial fees to hearing officers, sometimes tens of thousands of dollars for a single case. For example, one hearing officer submitted an invoice for a single due process case for $43,325. (See Exhibit D) When a hearing officer has several due process cases in a year, these fees accumulate quickly. A steady source of income can be particularly important for attorneys who are sole practitioners or who work at small firms.
VDOE selects and certifies sole practitioners and small-firm lawyers as hearing officers, trains them, pays them, appoints them (accommodating their schedules, as requested), with the promise of a long-term, steady stream of income that requires no marketing expenses for those hearing officers who refrain from biting the hand that feeds.
Download the Complaint in D.C. v. Fairfax County Public Schools and Virginia Department of Education.
"The result has been an entire generation of disabled children and their parents facing a near-insurmountable hurdle to obtaining a fair due process hearing."
Do you have questions or concerns about the hearing officer system in your state?
We encourage you to read the Complaint and Exhibits in this case -- these documents contain the facts about the due process system in Virginia, hearing officers, and the complete failure of the Office of Special Education Programs (OSEP) - to enforce the law for decades.
- Allegations and Exhibits that Support Allegations,
- Due Process Outcomes: VDOE Hearing Officers Rule Against Parents at Far Greater Rates than Other Jurisdictions (Complaint, p 17-21)
- Hearing Officer Ruling Results (Exhibits A, B, C)
- Hearing Officer’s Billing Record for One Due Process Hearing (Exhibit D)
- Information and Ruling Records (Exhibit E)
- Practice of Selecting Hearing Officers Biased Due to Financial Interests (Complaint, p 27-30; Exhibit E)
- Fees paid to Hearing Officers Who Never Rule in Favor of a Child with a Disability or Special Needs,
- Counts (p 40-49)
- Prayer for Relief (p 49-52)
Endnotes
[1] See Perry A. Zirkel and Cathy A Skidmore, National Trends in the Frequency and Outcomes of Hearing and Review Officer Decisions under the IDEA: An Empirical Analysis", 29 Ohio State J. on Disp. Resol. 529–31 (2014).
[2]
Tracey Gershwin Mueller and Francisco Carranza, An Examination of Special Education Due Process Hearings, 22 J. Disability Policy Studies, 131, 137 (2011). The study analyzed petitioner, disability, dispute and outcome, including hearings of specific learning disabilities (26%), autism (20%), and health impairments (15%). Parents initiated 85% of the hearings under the IDEA. School districts prevailed 58.6% of the time, parents prevailed 30.4% of the time, and 10.4% of the cases involved a split decision with the school district or the parents obtaining partial relief.
Updates
10/6/2022 - Summonses were issued on September 23, 2022. Defendants must file responsive pleadings to the Complaint within 21 days after receipt of the summons. No responsive pleadings are on file with the District Court on this date.
Created: 10/20/2022
Updated: 00/00/2022
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