Lawsuit: VA Parents Say Special Education Cases Are Rigged Against Them

Correction appended Sept. 23

Virginia’s courts routinely rule against parents of students with disabilities who sue to ensure their children are receiving an appropriate education, according to a class action lawsuit filed in federal court this week.

The suit names the Fairfax County Public Schools in northern Virginia as well as the state department of education, which trains and certifies hearing officers to review parent complaints. The suit alleges the state maintains a list of “school-friendly hearing officers” who are more likely to rule against families that challenge district decisions about services for their children.

Trevor and Vivian Chaplick, parents of a Fairfax student with autism, ADHD and other “profound” disabilities, along with a nonprofit they’ve created, filed the suit on behalf of all students in the state who participated in due process proceedings 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 watchdog website documenting special education complaints in the district. “What happens is they lawyer up and they’ll spend millions fighting you.”

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The lawsuit comes as parents across the state are seeking compensatory — or make-up — services due to school closures during the pandemic. Under the Individuals with Disabilities Act, districts are required to evaluate and provide services to students if educators failed to follow a child’s individualized education program, or IEP. But the lawsuit claims Virginia’s system was rigged against parents long before the pandemic.

According to the complaint, hearing officers ruled in favor of northern Virginia families only three out of 395 times between 2010 and 2021. Statewide, there were just 13 out of 847 cases in which hearing officers found districts at fault over that same 11-year period, according to documents the Chaplicks obtained through public records requests.

Twenty-two of the hearing officers, who act as judges in such cases, have “been virtually unchanged over the last two decades, which represents two generations of disabled children seeking a better education under the IDEA,” the complaint said. “Despite (or because of) the incredibly one-sided outcomes from these hearing officers, the VDOE continued to recertify these same 22 hearing officers.”

Because of their son’s severe needs and aggressive behavior, the Chaplinks asked the district to place their son in a residential school. The district refused, and when the parents prepared to file for due process, a district social worker told them they would lose. They thought the staff member 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 services and supports that they are entitled to under federal and state law,” he said.

Julie Moult, a spokeswoman for the Fairfax district, said officials had not been served with the lawsuit and were not able to comment.

Reid, who is new to Fairfax this year, previously served as superintendent of the Northshore School District near Seattle, the first in the nation to close a school because of COVID. The district, with about 23,000 students, is a fraction of the size of Fairfax, which has an enrollment of roughly 180,000.

‘That’s how hard it is’

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

Kimberly Richie, who led the civil rights division at the time, took action after seeing news reports of t schools opening for child care, at the parents’ cost — but not for students with IEPs. Now Richie is a deputy superintendent at the Virginia education department, whose division includes special education. Oettinger sees that as a good sign.

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

Prior to the pandemic, parents sued the district for its use of physical restraint and seclusion of students with disabilities. In December 2021, it reached an agreement with the plaintiffs and disability rights organizations to ban the practice.

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The new lawsuit includes the names and decisions of hearing officers, in northern Virginia and statewide. One is Frank Aschmann, an Alexandria, Virginia, attorney who has ruled in favor of parents in one out 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 began asking the Fairfax district to evaluate him in fourth grade, but she said they kept putting her off for a year — even though she had been a special education teacher in the district from 1997 to 2014.

“That’s how hard it is,” she said, referring to efforts to get her son the literacy instruction that experts recommended. She taught him herself, but had to hire private speech and language tutors. “By 6th grade, he had hit a complete wall.”

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

Aschmann ruled against the family on multiple points, including refusing to compel the district to turn over records and stating that the student’s struggles in his Spanish class did not constitute evidence of the district’s failure to implement his IEP.

Aschmann did not return a call seeking comment.

Related: Feds Urge Schools to ‘Redouble’ Efforts to Keep Students with Disabilities in Class

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

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

“You just get bounced around,” she said.

Correction: While the Virginia Department of Education selects hearing officers to review due process cases in special education, it is the Virginia Supreme Court that ultimately decides the outcomes.