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Special Education Law in Virginia:
The Basics, Trends and New Developments
Recent Case Law1
C.C., et al., v. Fairfax County Board of Education, 879 F. Supp. 2d 512 (E.D.Va. 2012)
Facts: During the summer of 2011, the school division developed an IEP proposing to place the
teenage student with multiple disabilities in a large district middle school with related services.
The IEP called for placing the student in a self-contained classroom for core academic classes,
and in general education for gym and electives. The parent objected, partly because of the size
of the school (900 students enrolled). She placed her child in a private school that offered fulltime intensive special education and sought tuition reimbursement
Holdings: The Court held for the school division. While the parent may have believed a small
private school was the best choice for her daughter, the parent could not obtain reimbursement
where she failed to establish that the school division's proposal to place the student in a public
school in a small self-contained class failed to offer FAPE. Observing that the issue was not
whether the private school was a better fit, the Court found that the school division's proposed
placement was reasonably calculated to provide the student with the level of educational benefit
minimally required by the IDEA.
In addition, the Court rejected the parent's claim that the independent hearing officer who
heard the due process case erred by finding that the parent "predetermined" the private school
placement. The Court observed that the hearing officer based that finding on the fact that before
the IEP process began, the parent had already decided that she would not agree to the middle
school if it were proposed and said that her daughter would attend that school "over [her] dead
body." Moreover, when a spot opened up in the private school, the parent quickly committed to
enrolling the student there before the division had a chance to complete the IEP. Nevertheless,
the Court determined that the hearing officer did not base the decision on that finding, but rather
on the parent's failure to show that the IEP did not offer meaningful benefit.
The Court also concluded that the hearing officer acted reasonably in affording greater
weight to the testimony of the school division staff than it did to the parents' experts, citing the
staff members' greater familiarity with the student's needs.
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This case law update was completed by Angela Ciolfi, Legal Director of the JustChildren Program of the Legal
Aid Justice Center, and Bradford King, Attorney at Sands Anderson PC.
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Robert and Catherine Augustine, independently and on behalf of M.A. (Minor) and T.A.
(Minor) v. Winchester Public School District, 5:13cv00025, 62 IDELR 57 (W.D.Va. 2013)
Facts: The grandparents of two minor students with disabilities asserted claims that the school
division failed to curtail disability harassment.
Holdings: The District Court adopted a magistrate judge's report and recommendation to
dismissed the grandparent's case in its entirety. The grandparents argued that the magistrate
judge erroneously considered the IDEA when determining whether they pleaded a viable Section
1983 claim. However, the Court pointed out that the magistrate judge only discussed the IDEA
when determining whether the Supreme Court's decision in Winkleman ex rel. Winkelman v.
Parma City Sch. Dist., 550 U.S. 516 (2007), gave the grandparents the right to bring a Section
1983 claim on their own behalf. The Court noted that the grandparents did not challenge the
magistrate judge's determination that Winkleman, which states that parents have substantive as
well as procedural rights under the IDEA, does not extend to other statutes. As such, the
grandparents did not have the right to bring Section 1983 claims on their own behalf. In
addition, because the grandparents were not represented by counsel, they could not bring Section
1983 claims on behalf of the minor students. The Court granted the school division's motion to
dismiss.
Capuano, Legal Guardian for Joseph Torda, Michael Torda v. Fairfax County Public
Board, 1:13-cv-00568-GBL-TRJ, 62 IDELR 81 (E.D.Va. 2013)
Facts: Parent of a 22 year-old student with Down syndrome, significant cognitive deficits,
communications difficulties, and motor skills problems, sought a determination that her son had
autism and an auditory processing disorder.
Holding: The Court held that the parent's reliance on the same evidence submitted years earlier
to show that her son now suffered the additional disabilities prevented the Court from re-visiting
the student's IDEA classification. In this case of first impression, the Court held that a parent
may not bring IDEA claims involving eligibility or services in different school years if a court or
independent hearing officer has already decided that issue on the merits and the parent has not
submitted new evidence showing a material change in the student's circumstances. The Court
recognized that the IDEA requires school divisions to review students' IEPs annually. As such,
an administrative decision or judicial ruling about a student's services for a particular school year
does not preclude a parent from bringing FAPE claims in subsequent years. However, the Court
or hearing officer has no obligation to re-litigate facts or legal issues that already have been
decided unless the party seeking relief can demonstrate a material change in circumstances. The
Court pointed out that the parent did not submit any new evaluations suggesting that the student
had autism. Further, the District Court and the 4th U.S. Circuit Court of Appeals had already
considered an independent evaluation stating that the student had an auditory processing
disorder.
Because the parent did not submit any new evaluations suggesting that the student's eligibility or
classification had changed since its previous decision, the Court held that the doctrine of
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collateral estoppel barred the parent's claim, and sustained the school division's motion for
summary judgment on the administrative record.
Bobby, et al., v. School Board of the City of Norfolk, 2:13cv714, 64 IDELR 175 (E.D.Va.
2014)
Facts: After prevailing during an administrative due process hearing, the school division as a
prevailing party under the IDEA filed a motion for attorneys' fees, and a magistrate judge filed a
Report and Recommendations wherein he recommended denying the division's motion.
Holding: The Court accepted the magistrate judge's Report and Recommendations and denied
the school division's motion. The Court held that the parents advanced a valid legal argument
despite evidence that they helped to create the IEP defect at issue in the hearing. The
magistrate's Report observed that the parents' claim bore some similarity to A.K. v. Alexandria
City School Board, 47 IDELR 245 (4th Cir. 2007). Like the school division in A.K., the division
here failed to identify a specific school in the student's IEP. However, the magistrate noted that
the similarities ended there. While the school division in A.K. did not identify any school
capable of meeting the student's needs, the division here identified two potential schools. The
magistrate pointed out that the parent's refusal to consent to a placement evaluation prevented the
division from identifying a specific school in the student's IEP. Still, the magistrate recognized
that the IEP failed to identify the specific location of the student's services. In light of A.K., he
could not say that the parents' legal argument was unreasonable, frivolous, or without foundation
at the time they filed their appeal.
Turton, et al., v. Virginia Department of Education, et al., 3:14cv446, 115 LRP 2259
(E.D.Va. 2015)
Facts: Counsel for 28 plaintiffs filed an Amended Complaint, generally alleging various
incidents of discrimination against black and special education students in four local school
division, and including both state and federal law claims. The Amended Complaint also asserted
claims against a school board attorney, who represented two of the school divisions, which
claims allegedly resulted in conspiracy to violate federal and state law.
Holding: The Court previously entered an Order dismissing the Amended Complaint as to all
defendants. The Court here granted the defendant school attorney's Rule 11 sanctions motion
against plaintiffs' counsel. Citing the lack of support for the attorneys' claims against the
divisions' counsel, as well as their failure to investigate certain facts, the District Court granted
the motion for sanctions. The Court cited its authority under the Federal Rules of Civil
Procedure to sanction an attorney who files a claim for an improper purpose, asserts claims or
defenses not supported by existing law (or a reasonable extension thereof), or makes statements
of facts that have no evidentiary support. The Court pointed out that the parent attorneys offered
no legal support for their claim that the school divisions' counsel violated duties that he owed to
parents of student with disabilities. Further, the Court observed that case law clearly showed that
the counselor's sole duty was to the divisions he represents. "Given the clear and settled nature
of Virginia law on the subject, it is difficult to conclude that any . . . research was undertaken."
The Court also noted that the complaint incorrectly identified the school attorney as the counsel
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for all four defendant school divisions; had the parent attorneys researched the case before filing,
the Court observed they would have known that the school attorney represented only two of the
four defendant school divisions.
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Office of Civil Rights ("OCR") - Complaints
Chesterfield County (VA) Public Schools, 11-13-1115, 114 LRP 41314 (March 11, 2014)
Parent contended that CCPS failed to evaluate a middle schooler with an undisclosed
disability. Specifically, the parent alleged that CCPS refused to evaluate the student's eligibility
for IDEA or Section 504 services. She claimed that, instead, CCPS suspended the student in
December 2012 for the rest of the school year for conduct related to his disability and without
performing a manifestation determination review.
CCPS agreed to a resolution agreement before OCR made a compliance determination.
Under the agreement, CCPS pledged to provide Section 504 training to all personnel at the
student's middle school and to disseminate a memorandum to all district staff members regarding
its duty to evaluate and identify students with disabilities or suspected disabilities under Section
504. Regarding the student, CCPS promised to convene an eligibility meeting to determine
whether the student required IDEA or Section 504 services due to a disability. CCPS also
agreed, if it determined the student was eligible, to provide compensatory services as a result of
his long-term suspension. Finally, CCPS agreed that it would take no further disciplinary action
against the student for the December 2012 behavioral infraction or preclude the student from
participating in any future extra-curricular activities.
Fairfax County (VA) Public Schools, 11-14-1130, 115 LRP 3289 (August 1, 2014)
Parent claimed that her daughter and her classmates never received the "read aloud"
services required by their IEPs and 504 plans in English or Biology class. She claimed that,
instead, the teachers provided the students with another accommodation.
FCPS agreed to a resolution agreement before OCR made a compliance determination.
Under the agreement, FCPS promised to conduct training regarding proper implementation
procedures for all high school personnel responsible for developing and implementing students'
IEPs and 504 plans. The required training would also address the difference between "read
aloud" services and "read on demand" services. Additionally, FCPS assured OCR that it would
advise staff members that the services listed in a student's IEP or 504 plan were not "optional",
unless the IEP or 504 plan stated differently. Regarding the subject students, FCPS agreed to
convene the IEP or 504 plan of each student in the two classes to determine whether their
services were delayed or implemented inappropriately, and if so, how much compensatory
education they required.
Louisa County (VA) Public Schools, 11-14-1261, 115 LRP 4506 (November 17, 2014)
Parent asserted that LCPS discriminated against several of her students on the basis of
disability by misclassifying their disabilities due to evaluations that reflected lack of English
language skills rather than disability needs. She further alleged that LCPS failed to timely
evaluate two students for special education and/or related aids and services.
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LCPS agreed to a resolution agreement before OCR made a compliance determination.
Pursuant to the agreement, LCPS agreed to ensure that qualified translators and interpreters are
available to participate in the evaluation of ELL students who need or are believed to need
special education and related services and conduct additional evaluations of students who may
have been misclassified as students with disabilities because of their limited English proficiency.
OCR explained that under Section 504, school divisions must provide FAPE to each
qualified student with a disability who is in their jurisdictions regardless of the nature or severity
of the students' disability, and that a division does so by ensuring that the individual needs of
students with disabilities are met as adequately as the needs of non-disabled peers are met. To
determine whether a student is eligible for special education and/or related services, OCR
observed that the individuals conducting evaluations must have the qualifications, training, and
experience needed to identify the student's unique needs. Finally, OCR pointed out that although
the Section 504 regulations do not expressly require that assessments are administered in a
student's native language or alternative mode of communication, OCR consistently has found
that school divisions must use appropriate testing measures for student with limited English
proficiency.
Prince William County (VA) Public Schools, 11-13-1058, 114 LRP 34872 (July 29, 2014)
Parent filed a systemic complaint, on behalf of her child and similarly situated students,
against PWCPS alleging that its separate programs for students with emotional disabilities
discriminates against students with disabilities through the use of improper restraint and
seclusion practices.
Through intensive reviews of records, interviews with staff, and on-site visits to the
schools, OCR found that the schools rarely addressed behavioral issues with individualized plans
or supports even though most students were placed in the separate schools because their
emotional disabilities frequently manifested in disruptive behavior. Instead of individualized
behavioral planning, OCR documented the widespread and repeated use of restraint and
seclusion, which it described as “a one-size fits all behavioral management approach.”
OCR found that the repeated and frequent use of restraint, seclusion and Reorientation (a
process of removing students from their classrooms to an isolated area), in the absence of
individualized assessments, denied students in the separate programs who are consistently
subjected to these interventions FAPE under Section 504. OCR noted that the frequent use of
restrictive interventions suggests those strategies are not effective at changing or minimizing
problematic behaviors. Moreover, once students are removed to an environment that is not
conducive to learning, they are effectively denied educational instruction or access to the
curriculum for the duration of the removal.
OCR further found that PWCPS failed to consistently or adequately comply with its own
policy requiring that parents be notified when their children are restrained or secluded.
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Finally, OCR noted with disapproval that PWCPS failed to accurately report incidents of
physical restraint and seclusion to Civil Rights Data Collection (CRDC) for the 2011-2012
school year, for the two separate programs or for the division as a whole.
In a Resolution agreement, PWCPS agreed to reevaluate students subjected to aversive
interventions, to provide compensatory services, as appropriate, and to submit to a number of
reporting requirements.
Virginia Due Process Hearing Officer Decisions
Case Number 14-005
Issues:
Appropriateness of IEP (FAPE)
Implementation of IEP (FAPE)
Request for Compensatory Education
Sub Issues:
Whether ESY services were necessary for FAPE
Whether the student required a nurse
Prevailing party:
School Division on all issues
Basic Facts:
Parents of early elementary school student with an Other
Health Impairment claimed deprivation of FAPE and
requested compensatory educational services.
Case Number 14-008
Issues:
Appropriateness of IEP (FAPE)
Placement (FAPE)
Parental participation
Sub Issues:
Failure to identify a particular classroom
Pre-placement classroom observation
Prevailing party:
School Division on all issues
Basic Facts:
School division initiated due process after parents refused
consent for an IEP placing their 13-year-old student at a
regional publicly operated autism program.
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Five-day due process hearing
Case Number 14-009
Issues:
Requested relief:
FAPE
Section 504 violation – failure to prevent bullying
Private school placement
Compensatory education – counseling/therapy; training for
educators in anti-bullying
Reimbursement of legal fees
Prevailing party:
School division – for reasons discussed below
Basic Facts:
Parent made second motion to withdrawal without
prejudice on first day of due process hearing; hearing
officer denied motion, finding that it was the second motion
to withdrawal same complaint and finding that parent did
not provide reasonable notice.
Case Number 14-010
Issues:
Two-year statute of limitations
Prior written notice
FAPE
Compensatory services
Prevailing party:
School division on all issues
Basic Facts:
Parents of 14-year-old student with Down Syndrome
alleged they were not given advance prior written notice
and information required by IDEA regarding the type of
diploma their child would later be eligible to earn, and that
student was not provided FAPE during upper elementary
school years.
Four-day due process hearing.
Case Number 14-016
Issue:
Manifestation determination
Prevailing party:
School division
Basic Facts:
Parent of suspended high school student suspended filed
expedited due process hearing request, challenging the
school division's determination that the student's
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misconduct (repeated incidents of disruption, profane
language, using a cell phone, leaving school property)
insubordination) was not a manifestation of his disability
(specific learning disability).
Case Number 14-020
Issue:
Transportation/FAPE
LRE
Prevailing party:
Parent on the transportation issue (for a limited period of
time, and no relief ordered)
School division on remaining issues
Basic Facts:
Parent initiated due process alleging school division failed
to provide ANY transportation to student for approximately
three weeks, and then provided inappropriate transportation
in a handicapped bus thereafter, when student did not
require handicapped transportation. Hearing officer
determined school division failed to provide transportation
for approximately three weeks and, therefore, failed to
provide FAPE, but also held parent was NOT entitled to
any remedy for such failure. Hearing officer held further
that the school division otherwise provided appropriate
transportation, as both non-disabled and disabled students
rode the subject bus.
Case Number 14-042
Issues:
Initial Special Education Eligibility
Functional Behavioral Assessment
FAPE
Section 504 Eligibility
Prevailing Party:
School division on all issues
Basic Facts:
Parents of rising second grade student whom school
division proposed eligibility as a student with multiple
disabilities objected to primary disability of emotional
disturbance. In due process hearing they asserted school
division improperly rejected their request for a formal
functional behavioral assessment, which failure denied
their child FAPE. Hearing officer determined that because
parents never consented to initial eligibility and initial
proposed IEP (initial services), they did not enjoy IDEA
protections. Further, because the school division found the
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student eligible for services under IDEA, it did not
discriminate against the student under Section 504.
Case Number 14-044
Issues:
Procedural violations
Failure to properly notice IEP meeting
Continuing meeting without parents' participation or
consent
Conducting eligibility without parents' participation
or input
Failure to evaluate
Failure to revise IEP
Failure to adopt IEP reasonably calculated to provide
educational benefit
Manifestation Determination Review
Private school reimbursement
Prevailing party:
School division on all issues
Basic facts:
Parents of 14-year-old eight grader initiated due process
hearing after student received suspension for assaulting a
fellow student. School division identified student's primary
disability as OHI, with a secondary disability of specific
learning disability. Parents alleged school division had
failed to properly evaluate and serve the student after he
experienced a head injury off school property, and prior to
the school disciplinary infraction. The parents alleged a
series of procedural errors that they argued impeded their
ability to participate in their child's educational
programming, and ultimately denied the student the
appropriate disability identification and appropriate
services. They sought reimbursement for a private school
placement.
Four-day due process hearing.
Case Number 14-045A
Issues:
FAPE
Failure to address all of child's disabilities
Evaluation
Pre-determination
Section 504
Failure to conduct a manifestation determination
Failure to evaluate prior to change in placement
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Denial of educational opportunities – failure to
evaluate
Prevailing parties:
Parents on all issues except pre-determination
Basic Facts:
Parents of student served under the categories of OHI and
gifted education filed for expedited due process following
student's suspension for sexually explicit behaviors. The
hearing officer bifurcated the hearing, and issued a separate
opinion on the expedited issues (see Case Number 14045B, below). Hearing officer here found that school
division failed to properly evaluate student for all suspected
disabilities, even with knowledge of multiple indicators.
This failure, the hearing officer determined, resulted in
denial of FAPE under both IDEA and Section 504.
Two-day due process hearing.
Case Number 14-045B
Issue:
Manifestation Determination Review
Prevailing Party:
Parent
Basic Facts:
For many of the same reasons discussed above, the hearing
officer determined that the school division's manifestation
review was improper based on identified disabilities in
outside evaluations of the student, school team members'
misunderstanding/misapplication of disability categories,
and the school division's failure to properly evaluate the
student.
Three-day due process hearing.
Case Number 14-052
Issue:
FAPE/LRE
Prevailing Party:
School division
Basic Facts:
Parent of a kindergarten student who the school division
determined eligible for special education services as a
student with multiple disabilities filed a due process request
challenging the appropriateness of the proposed IEP. The
hearing officer granted the school division's motion to
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dismiss on the grounds that the parent had not consented to
initial eligibility, a prerequisite to the protections of IDEA.
Case Number 15-003
Issue:
Manifestation Determination Review
Prevailing Party:
School division
Basic Facts:
Parents of sixth grade student served as a student with an
Other Health Impairment due to Attention Deficit
Hyperactivity Disorder and Asperger's traits challenged the
school division's determination (with which the parent
agreed at the time of the MDR) that the student's behaviors
leading to a long-term suspension were not related to his
disability. During an expedited hearing, the hearing officer
determined that the manifestation team considered all
relevant information and considered all of the child's
disabilities; that the team deliberated about the child's
disabilities; and that the team's rationale decision and
rationale were appropriate. The hearing officer held further
that the school division was implementing the child's IEP at
the time of the disciplinary infraction.
Case Number 15-006
Issue:
FAPE/LRE
Prevailing party:
Parent
Basic Facts:
Parent of 14-year-old student identified as a student with
multiple disabilities (ED, OHI and SLD), challenged the
school division's determination that the student was eligible
as a student with an emotional disturbance and its
placement of the student in private therapeutic day school.
The hearing officer determined that the school division
failed to properly consider multiple outside evaluations
indicating that the student was autistic, and not ED. The
hearing officer determined that the school division's
proposed IEP did not offer the student FAPE in the least
restrictive environment, and determined that the parent's
private school placement was the least restrictive
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environment – granting the parent's request for
reimbursement.
Four-day due process hearing.
Case Number 15-010
Issue:
Dismissal from special education
Prevailing party:
School division – not on merits
Basic Facts:
Hearing officer determined that mother who filed due
process hearing to have her child withdrawn from special
education services was bound by a circuit court order
requiring both parents to be involved in decision-making
regarding child's educational needs. Father of student filed
motion in hearing that he was opposed to mother's request
for due process hearing. Hearing officer dismissed the
proceedings without prejudice based on the court's order,
making not findings on the underlying issues.
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Office of Civil Rights ("OCR")
Dear Colleague Letters
January 25, 2013 – access by students with disabilities to extra-curricular activities
June 25, 2013 – "Supporting the Academic Success of Pregnant and Parenting Students under
Title IX of the Education Amendments of 1972"
January 8, 2014 – the administration of student discipline without discriminating on the basis of
race, color, or national origin
April 29, 2014 – "Questions and Answers on Title IX and Sexual Violence"
May 6, 2014 – the voluntary use of race to achieve diversity and avoid racial isolation
May 8, 2014 – avoiding discrimination in student enrollment practices
May 14, 2014 – applicability of Federal civil rights laws to public charter schools
October 1, 2014 – disparities in educational resources/equal access without regard to race, color
or national origin
October 21, 2014 – addressing bullying of students with disabilities
November 12, 2014 – "Frequently Asked Questions on Effective Communication for Students
with Hearing, Vision or Speech Disabilities in Public Elementary and Secondary Schools"
December 1, 2014 – "Questions and Answers on Title IX and Single-Sex Elementary and
Secondary Classes and Extracurricular Activities"
January 7, 2015 – English Language Learners/Limited English Proficiency students' access to
educational programming, including special education services
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