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Suit challenges VDOE, Fairfax schools over Individuals with Disabilities Act

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BALOW VDOE

Jillian Balow, superintendent of public instruction, speaks at the Virginia Department of Education on May 19.

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A class-action suit filed in Fairfax County on Wednesday challenges the state over the implementation of the Individuals with Disabilities Education Act, asserting that hearing officers rarely side with parents who challenge school plans for how to educate their children.

The federal law spells out early invention, special education and other related services that must be provided to eligible infants, toddlers, children and youth with disabilities to ensure they receive a proper education.

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If parents call into question services offered for their child, they can file a complaint and go before a judge.

The due-process hearing is where the families and the school systems present their sides in a formal legal setting.

“During the last twenty years approximately two thirds of the hearing officers have never ruled in favor of parents, not even once,” the suit asserts. “Even worse, in Northern Virginia, 83% of hearing officers never once ruled in favor of parents over the eleven-plus years from 2010 to July 2021.”

Plaintiffs Trevor Chaplick and Vivian Chaplick, the parents of a current Fairfax County Public Schools student and founders of Hear Our Voices Inc., an advocacy organization for people with disabilities, filed the suit in the U.S. District Court for the Eastern District of Virginia.

The suit names the Fairfax County School Board and division Superintendent Michelle Reid, the Virginia Department of Education and state Superintendent of Public Instruction Jillian Balow.

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Passed in 1975, originally as the Education for All Handicapped Children Act, the Individuals with Disabilities Education Act “makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children,” according to the U.S. Department of Education.

The Chaplicks’ son, identified as “D.C.” in the suit, “has faced significant challenges in his life including Autism, Attention Deficit Hyperactivity Disorder-Primarily Hyperactive-Impulsive Type, Tourette’s Syndrome, Encephalopathy, Adjustment Disorder with Anxiety and Disturbance of Conduct, and an Intellectual Disability of an undetermined severity,” according to the suit.

While a student in Fairfax County Public Schools, D.C.’s parents wanted him to be placed in a residential education facility. However, according to the suit, the school district rejected the idea that the student needed to leave the division.

The Chaplicks went ahead with a due-process hearing despite receiving a warning from a school system social worker that “they should not bother [with the case] because they ‘would lose.’”

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This led the Chaplicks to begin investigating the state Department of Education through Freedom of Information Act requests. D.C., 19, has been placed at a residential educational facility instead of a district school. However, the facility costs are not paid for by the school division, according to his parents.

In an interview on Wednesday, Trevor Chaplick said there are two objectives to the lawsuit.

“One is to reveal the scandal and the extent of it, and the other is to seek reform, both judicially and legislatively,” he said.

The state Department of Education, Chaplick said, hires, certifies and recertifies the hearing officers annually. The department also pays and trains the officers, Chaplick said.

“That creates an adverse incentive, a temptation by the hearing officers to rule in favor of the schools, and that’s exactly what the data shows. We want to sever and break up that monopoly power,” Chaplick said.

Chaplick wants the state to create an independent commission of fair-minded individuals who don’t have an economic interest in the outcome of the hearings.

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The complaint states that the plaintiffs are asking for a declaration that the hearing officer system “deprives families of procedural due process … by failing to supply knowledge and impartial hearing offices who meet the [federal law] requirements.”

The suit is also seeking to have the VDOE found to be out of compliance with the federal law “in that it fails to oversee and supervise the hearing officer and due-process hearing system in a manner that ensures a fair due process hearing and a knowledgeable and impartial hearing officer,” the complaint reads.

A spokesperson for the state Department of Education as well as a spokesperson for Fairfax County schools did not immediately respond to a request for comment on Wednesday.

The Susman Godfrey law firm and the Civil Rights Clinic of Georgetown Law School are working pro bono on the case, and Braxton Hill of Merritt Law provided collaboration in the development of the case.

Bill Merrill, a partner at Susman Godfrey, said in an interview on Wednesday: “If that hearing officer system is broken, if those hearing officers nearly always ruled in favor of schools, then the system doesn’t work.”

jnocera@timesdispatch.com Twitter: @jessmnocera

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