(Updated at 2:50 p.m.) A multi-year legal battle between a family and Arlington Public Schools over the appropriateness of their child’s special education support ended this summer with a decision in APS’s favor, handed down by federal court.
While the avenues for dispute resolution dead-end there for the family, the decision provides an insight into how fraught the special education system can be. What is supposed to be a collaborative effort among schools and parents can turn into a grueling legal process if the parents and the school system disagree over aspects of the child’s disability or which setting best meets their needs.
In this case, the parents sued APS, requesting it pay for tuition at a private day school that — according to them — would be better for their child than Williamsburg Middle School. The federal court decision said APS did not have to pay the cost of tuition.
The court also overturned a lower ruling by a state officer who said the school system should reimburse the parents for a private evaluation they obtained. A psychologist found their child exhibited disabilities that APS did not find in their evaluation.
This case reveals how some decisions favor schools partially because parents make procedural missteps before they realize that every step of the process could become evidence in a hearing later on, special education lawyer Juliet Hiznay tells ARLnow.
She said both the hearing officer and the federal decision were well-reasoned, and that the parents made a couple of common errors.
“A lot of parents get caught up in sort of what I call traps for the unwary: not preserving their claims, not communicating them during meetings, not getting them on the record,” she said.
That the case reached federal court is also exceedingly rare, because the special education legal system is set up to have these issues resolved in meetings and mediation sessions, she said. The parents sued after an administrative process with an independent hearing officer did not go in their favor.
“There is a risk associated with doing this. There’s an emotional toll, and practical price to pay: School districts don’t like being sued, so the relationship gets destroyed when you sue a school division,” she said. “And many parents are afraid, and some of them have more than one child, and they don’t want to risk any kind of retaliation by the school district.”
One family’s experience
The boy at the center of the lawsuit is currently attending a private school in Sterling, Virginia, according to federal court documents. The home school is Nottingham Elementary School, which he attended from kindergarten through fourth grade.
While at Nottingham, his parents and school officials noticed he struggled academically and socially. During an assessment in the first grade, he “presented with difficulty in a number of different areas” including reading, writing and math, attention and organization and making friends, according to a lawsuit filed on behalf of the parents.
He was given an Individualized Education Plan (IEP), a document outlining the services the school will provide, under the category of “specific learning disability.” But by fourth grade, he “still continued to struggle greatly,” per the lawsuit.
According to Virginia Department of Education data, APS has been providing services to steadily more children with presumed or diagnosed specific learning disabilities in the last four years.
While still at Nottingham, the boy’s parents pushed for updated testing to see if he was be eligible for more services under additional disability categories, but APS said that would not be necessary, according to the parents’ lawsuit. So his parents started paying for after-school tutoring.
For his fifth grade year, despite evidence of progress within the public school system, the parents placed their son in St. Agnes, a parochial school. While there he faced bullying, and school staff suggested their son’s issues went “beyond what was identified by APS,” according to the lawsuit. At the urging of school staff, the parents had their son privately evaluated, and he was diagnosed with autism, ADHD, learning disabilities in reading and writing, and a neurodevelopmental disorder.
His autism diagnosis is part of a trend reflected in APS. The school system has been providing services for more students with presumed or diagnosed autism every year since 2010, according to VDOE data.
The evaluating psychologist recommended a school setting with “a small student-to-teacher-ratio, environmental structure, multimodal instruction, and frequent reinforcement.”
According to the federal court’s decision, APS offered to make a number of changes to his education plan based on those recommendations, but the parents instead sought a placement at The Newton School in Sterling for the sixth grade.
The Newton School caters to students who struggle in a traditional school environment, whether it’s because they can’t sit still for long or have trouble making friends, according to the website. The parents argued that APS classrooms will not be appropriate because the smaller classes are with other special needs students while the general education classes are too large.
“Although the environment sought by the parents might be ideal that is not what [the law] requires. An IEP must be ‘reasonable,’ but does not have to be ideal,'” the court decision said. “Additionally, Newton is not accredited for special education placement.”
Even if it is better for the student, schools rarely are called on to pay tuition costs for a private school without state accreditation, Hiznay said.
The winding road for special education legal processes
Parents and school officials meet at least once a year, but sometimes more, to go over their child’s IEP and make any changes.
“You have to think about [these] meetings like a negotiation,” Hiznay said. “Even though it’s designed as a collaborative process, we all know that there are some practical ways in which people can end up in conflict very easily.”
And these meetings “are not easy” for parents because these negotiations involve their struggling child, she said.
Here in the Commonwealth, many conflicts arise over the kind of instruction or therapy the child should receive, which parents want but that schools say are unneeded, Hiznay said.
If there’s a disagreement, parents can request mediation services. According to the most recent data from VDOE, from 2011 to 2015, there were an average of 126 mediation requests and 104 mediation meetings held statewide.
After that, parents can pursue due process, an expensive administrative process where schools and parents present evidence and a hearing officer makes a decision. Although there were an average of 50 due process complaints for those same years, the number of due process hearings that ultimately result in decisions by the hearing officer is far lower.
Every year, VDOE publishes the fully adjudicated hearing cases, with all identifying information — including the school system implicated — redacted. Over the past eight years, the number of fully adjudicated hearings hovered between seven and 10 before spiking at 20 during the 2019-20 school year.
Schools do not often offer placement in a private school without parents asking because it’s expensive. Should the schools deny parents’ requests, they sometimes will pay the tuition themselves and sue for reimbursement later, like the Arlington family did.
That approach is more common in Northern Virginia than elsewhere in the Commonwealth because there is more wealth and there are more specialized schools here, Hiznay said.
“The vast majority of parents do not place their children in private school for special education services,” she said. “But some people will do anything to get their kids in a private school.”
The judge’s decision in the family’s lawsuit was filed in June. APS’ motion for summary judgment was granted, with the judge ruling that the evidence filed as part of the administrative hearing was enough to find that the school system provided sufficient special education accommodations to the student and would not have to pay for the private school tuition.
Public schools are required by federal law to provide accommodations to disabled students, the judge noted in her ruling, but those accommodations within the IEP must only be “reasonable.” The law does not require the IEP to be “ideal,” nor does it require the administrative hearing officer to address every argument put forth by parents, the judge wrote.
“The Fourth Circuit has held that ‘federal courts cannot run local schools. Local educators deserve latitude in determining the individualized education program most appropriate for a disabled child. The [Individuals with Disabilities Education Act] does not deprive these educators of the right to apply their professional judgment,” U.S. District Judge Leonie M. Brinkema wrote in the decision. “To the extent that the hearing officer’s decision was not as fleshed out as plaintiffs might have wished and did not address every single procedural argument they made, this is not required by the Fourth Circuit.”
Graphs by Anuj Khemka