Ed Talk: The Special Education Crisis

Ed Talk is a biweekly opinion column. The views expressed are solely the author’s.

The Individuals with Disabilities Education Act (IDEA) is a federal law that requires that a free appropriate public education (FAPE) be provided to eligible children with disabilities and ensures special education and related services to those children. Despite those requirements and assurances, special education (SpEd) students in Arlington Public Schools are in crisis. The system that should be supporting and reinforcing them is broken.

Often, a parent must wait for their child to fail in order to get school administrators, referred to as the Local Education Agency (“LEA”), to refer their child for an evaluation. Preventive measures are virtually nonexistent. This “wait-to-fail” model results in extensive collateral damage to students academically, psychologically, emotionally and physically. The fallout is not only borne by these students and their families, but also by their teachers and classmates. Everyone is impacted — directly or indirectly.

Some assessments APS conducts to identify whether a student has a learning disability are incomplete, outdated, not comprehensive or not aligned with best practices and as such, are inferior to private evaluations. Resulting determinations about eligibility are therefore inaccurate or flawed. This presents an enormous equity issue. Parents who can afford a private evaluation (3K-5K avg.) will have a deeper, more comprehensive lens into what is going on with their child and what academic support and accommodations are recommended. Parents who cannot afford this get whatever APS presents them with, unless they know to request an Independent Education Evaluation (IEE) at public expense. Even then, APS significantly limits which assessments and costs they will approve, often leaving parents to pay the difference if they want more.

How hard a parent must fight to get an evaluation and how much pushback a parent receives from LEAs are grossly inconsistent from school-to-school, down to the quality of assessments and expertise of the school’s psychologist. It is quite literally, “the luck of the draw.” None of this is standardized or consistent. What is consistent is the utter anguish and stress many APS parents endure trying to hold APS accountable to its legal obligation to provide FAPE.

Once a student is found eligible for an Individualized Education Plan (IEP), the “wait-to-fail” model then shifts to one of “continue-to-fail” in order to retain SpEd services. In many cases, when the student stabilizes or improves given the appropriate supports, or is seemingly doing well, APS will try to remove those supports on the premise that they are no longer needed. At triennial reevaluation meetings, some parents are misled to terminate their child’s IEP altogether or transition to a 504 plan instead, based on the narrative that “special education isn’t designed to be permanent,” or being congratulated that their child is doing so well, they no longer needs special education.

Having your child identified as eligible for an IEP may be one battle won, but not the war. The next frontier is securing agreement on the goals, hours, accommodations or other stipulations in the IEP. IEP meetings have an adversarial undercurrent even if everyone in the room is cordial. At some point in the student’s K-12 cycle, the IEP process devolves into one of distrust as conflict inevitably ensues over implementation, partial consent, Prior Written Notices or something else that triggers an IDEA violation.

This is when parents should be able to rely on the enforcement powers of the Virginia Department of Education (VDOE) as the state’s regulator for SpEd. Unfortunately, we cannot. The never-ending compliance cycle may look something like this: a parent files a state complaint against APS for a specific violation, VDOE finds APS noncompliant and issues a Corrective Action Plan (CAP). APS completes said plan. In subsequent IEP meetings, APS repeats that same violation with the same, or different parents. Subsequent state complaints are filed, and VDOE again finds APS noncompliant and issues another CAP. Rinse, repeat. VDOE has not escalated consequences for repeat violations, so there is no incentive for APS to sustain compliance.

VDOE has defected from its enforcement throne and failed to engage in meaningful oversight of SpEd. Our children are experiencing collateral damage as a result. The General Assembly’s Joint Legislative Audit and Review Commission (JLARC) issued a report (December 2020) which concluded in part, that “VDOE’s handling of complaints against school divisions does not ensure all problems are resolved,” and that “VDOE’s ongoing monitoring is too limited.” JLARC made 27 recommendations to VDOE to address its failures.

Prior to that, the Department of Education, Office of Special Education Programs (OSEP) conducted an on-site monitoring visit of VDOE (which VDOE ironically has not done in many school districts) and issued a June 23 2020 letter of findings concluding, in part, that “VDOE is not exercising its general supervisory and monitoring responsibilities to implement its State complaint resolution system in a manner consistent with all of the regulatory requirements.” OSEP gave VDOE 90 days to establish and implement “general supervision and monitoring procedures and practices that are reasonably designed to ensure that LEAs meet IDEA’s program requirements.”

As a result, in a 2021 special legislative session, the General Assembly enacted SB 1288 which unanimously passed both chambers, directing the VDOE “to develop new policies and procedures and effect numerous modifications to existing policies and procedures to improve the administration and oversight of special education in the Commonwealth.”

But our SpEd students cannot wait for the state. We have to focus our efforts locally. Attend Arlington Special Education Advisory Committee (ASEAC) meetings; provide public comments; join the Special Education Parent Teacher Association (SEPTA); write to school board members and the superintendent. We need all hands on deck to advocate on behalf of our most vulnerable students. All APS students benefit when its students with disabilities are served well, because a rising tide lifts all boats.

Symone Walker is a federal attorney and an APS parent. She is Vice President of the Arlington Special Education Advisory Committee (ASEAC), serves on the Commonwealth Attorney’s Community Advisory Board, and is an Executive Committee Member of the Arlington NAACP and Co-Chair of the NAACP Education Committee. Symone is a former candidate for the Arlington school board.