A class-action lawsuit filed Wednesday claims Virginia special education due process hearings favor school systems over parents of children with disabilities.
The lawsuit filed against the Virginia Department of Education and Fairfax County Public Schools alleges that over the last 20 years, Virginia parents have won less than 2% of 1,400 due process cases. The suit was filed on behalf of students with disabilities by Trevor and Vivian Chaplick, representing their child D.C., and a nonprofit they started. The Civil Rights Clinic of Georgetown Law School and the law firms Susman Godfrey and Merritt Law are representing the plaintiffs.
The complaint also alleges that in Northern Virginia — where Fairfax County is located — 83% of special education hearing officers have never sided with families in a case in the past 10 years.
Parents of students served under the Individuals with Disabilities Education Act are entitled under federal law to resolve conflicts through due process complaints. Due process complaints have risen nationally, reaching an 11-year peak in 2019-20, according to the Center for Appropriate Dispute Resolution in Special Education (CADRE), a technical assistance center funded by the U.S. Department of Education.
IDEA dispute resolution activity per 10,000 children
In a statement about the lawsuit, Trevor Chaplick called the data about rulings favoring districts — collected through Freedom of Information Act requests — a "scandal."
"The parents of disabled and special needs children deserve a better fate from the Virginia public school system," Chaplick said in a statement.
Among other allegations, the plaintiffs claim the state education department, which oversees the hearing officer system, retained hearing officers who were biased due to financial interests in remaining employed as hearing officers.
"The 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 seeking a better education under the IDEA," the lawsuit said.
The complaint seeks several remedies, including:
- A declaration that the Virginia hearing officer system fails to provide "knowledgeable and impartial" hearing officers.
- A finding that the state education agency and Fairfax County Public Schools are out of compliance with IDEA because they don't provide fair due process hearings.
- An order for the defendants to implement procedures for fair due process hearings.
The complaint also calls for an independent board to oversee the hearing officer system, and for an investigation into the hearing records and rulings of officers who have ruled in favor of students with disabilities and parents less than 30% of the time the past 10 years.
What winning or losing means
Perry A. Zirkel, a special education law expert and emeritus education and law professor at Lehigh University, said while some aspects of the Virginia lawsuit may have merit, there should be "considerable caution" regarding the understanding of a lawsuit's victory or defeat.
For example, when he examined a national sample of due process hearing decisions from 1978 to 2012, it was difficult to determine clear victory lines since one complaint can have a number of issues and, therefore, a variety of separate rulings that may be completely or partially in favor of the school district or parents.
This makes classification of the overall decision far more complicated than the parents simply winning or losing a case, Zirkel said in an email.
For example, the weight of each ruling depends on each side's perspective, including not only on whether that ruling is partially or completely in one party's favor but also the outcome's perceived priority and costs.
"I think that they're going to find something that's going on here, because the percentages seem to be relatively low compared to most jurisdictions," said Zirkel, whose research is cited in the Virginia complaint. "The lawsuit clearly over-states and over-simplifies the calculation; and the current national standards to prove a biased system present a steep uphill slope for the plaintiff-parents."
The complaint breaks down case outcomes by: withdrawn, settled, dismissed or ruled in favor of schools; partial decision for parents and school district; and ruled in favor of parents. The data in the lawsuit shows in Virginia, 1.53% of cases between 2010 and July 2021 had a ruling in favor of parents. In Northern Virginia, the rulings in favor of parents stood at 0.76% during the same time period.
The lawsuit calls Virginia an "outlier" when it comes to the low rate of parents prevailing in special education lawsuits and refers to data from other states, such as Pennsylvania and Texas, where parents prevailed at higher rates.
Most special education litigation is initiated by parents, although school districts can and do sue parents over IDEA-related disputes, according to special education experts.
Jose Martín, an attorney with the Richards, Lindsay & Martín law firm in Austin, Texas, which represents school districts, said the rate of impartial rulings in Virginia "does seem suspect, unusual, an aberration."
Even so, rulings nationwide tend to tilt in school districts' favor for a few reasons, Martín said. For one thing, the parent filing the complaint bears the burden of proving there's been an IDEA violation.
Second, school systems are typically risk averse and would rather settle a dispute than endure the time and expense of a trial unless it's a solid and important case, Martín said.
However, even when hearing officers rule on cases, most rulings "don't present a clear picture of win and lose," Martín said. "The issue is significantly complicated by the fact that there are nuances and shadings even when parents prevail. This is because hearings may address a number of claims, and parents might prevail only partially."
A 2019 U.S. Government Accountability Office report outlined several barriers for parents accessing IDEA's dispute resolution options. These include a lack of adequate legal representation, the inability of parents to take time off from work, fear of retaliation by school districts against parents, language barriers and inconsistent access to information about students’ rights.
Litigation is often seen as a last resort when resolving special education disputes. CADRE promotes early dispute resolution activities, such as mediation and resolution through a facilitator, which can be more cost-effective and more expedient than the legal route.
