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The Virginia Department of Education is headquartered in the James Monroe Building in Richmond.

Shortcomings in both the quality and oversight of special education in Virginia put the commonwealth at odds with federal law and make it difficult — if not impossible — to determine how well students with disabilities are supported by their local school systems.

Those findings by the state’s Joint Legislative Audit and Review Commission, presented at a meeting Monday, buttress long-held concerns from parents and special education advocates across Virginia. The lengthy report also mirrors many of the failures outlined in a June letter from the U.S. Department of Education, which found serious deficiencies in how the Virginia Department of Education monitored and responded to special education complaints. 

Shortly after the agency issued its report, VDOE announced it was implementing a new model for monitoring and investigating special education compliance.

State Superintendent James Lane said the department “is looking forward to working alongside schools, teachers and families” to implement the new approach.

However, Callie Oettinger, a parent of a special education student in Fairfax, was furious, noting that it marked the third time in less than a year that an independent agency found problems with VDOE’s monitoring procedures for local school divisions.

And it was the second time that an oversight agency reported significant concerns over special education compliance in Virginia.

“If you look at Lane’s statement, he says he ‘applauds’ the findings in this report,” she said. “And he should be saying he’s embarrassed. This has been going on under his watch for years.”

‘Red flags’

Drew Dickinson, the project leader for the JLARC report, said at the meeting that “research indicates that outcomes for Virginia students with disabilities are improving.”

But “there’s still room for improvement,” he said, pointing specifically to “red flags” in student performance identified by the agency throughout the roughly year-long review process.

Those include lower graduation rates for students with disabilities and scores on state assessments that lag behind those of their non-disabled peers. The disparities are worse for Black students with disabilities and students with more severe needs.

JLARC analysts also found widespread problems with the quality of individualized education programs (better known as IEPs) at schools across the state. The tailored plans are foundational in establishing a student’s current level of academic performance, setting challenging goals and outlining the services needed to accomplish them. 

But the agency concluded that a significant portion of plans were missing critical information or failed to include “academic or functional annual goals.” Some staff members at the state’s Training and Technical Assistance Centers, which provide support to local school divisions, expressed concern that many IEPs don’t set “strong enough expectations for students with disabilities” — a finding that could put Virginia out of compliance with a 2017 Supreme Court decision holding that “every child should have the chance to meet challenging objectives.”

Even more widespread was a lack of adequate transition planning to ensure that students with disabilities can succeed after they leave high school. JLARC found that “many transition plans” were “of poor quality and did not include any specific transition services to be provided to the student.” More than a quarter of IEPs reviewed by the agency included no transition services at all — with no explanation as to why they were excluded.

The report included 27 different recommendations to improve the quality of Virginia’s special education services. But JLARC found that a more fundamental problem was VDOE’s lack of oversight and monitoring over local divisions — making it nearly impossible for the agency to identify and correct systemic issues with special education.

The findings came as no surprise to many parents and advocates across Virginia, who have spent years fighting the state’s complaint process. But many of the commission’s legislative members seemed stunned by the extent of the report.

House Majority Leader Charniele Herring, D-Alexandria, called some of the findings “shocking.” Sen. Janet Howell, D-Fairfax, who serves as the legislative vice chair of the commission, described the report as “devastating.”

“We have had for the last four years an administration in Washington that has been very laissez-faire when it comes to enforcing various education laws,” she said. “And I think that’s going to change rather quickly and dramatically in the coming months.

“So, I sense a real urgency for us,” she continued. “The last thing we need is a federal lawsuit.”

Outcomes are improving — but inequities remain 

JLARC’s most recent study is the first time the watchdog agency has reviewed special education in Virginia’s K-12 schools since 1984. And while Dickinson said graduation rates and test scores have improved for students with disabilities over the years, they remain significantly lower than they are for non-disabled students.

According to the report, 99 percent of Virginia students with disabilities take Standards of Learning assessments — statewide tests designed to ensure that all students are meeting minimum expectations for learning and skill growth. And during the 2018-2019 school year, 51 percent of students with disabilities passed SOL assessments in math — a full 13 percentage points higher than pass rates from 2012 to 2013.

JLARC found that “about half of the performance increase” can be linked to a new math assessment introduced in the 2018-2019 school year, which led to higher rates of passage among all students in Virginia. And the same improvements haven’t been seen for scores on reading SOLs. 

According to the agency, only 43 percent of special education students passed the reading assessments in 2018-2019, a four percentage point increase over the 2012-2013 school year. There’s also a significant gulf between pass rates among students with disabilities and their non-disabled peers. For math assessments, there’s a 34-point gap between the percentage of non-disabled students who pass the assessments versus students with disabilities. For reading, it’s a 39-point gap.

“The [scores] still lag pass rates for students without disabilities,” Dickinson said during the presentation. Those rates are also much lower for Black students, even when compared to other children with disabilities. 

JLARC found that during the 2018-2019 school year, only 35 percent of Black students with disabilities passed their math SOLs (compared to 51 percent of all other students with disabilities). The same year, 27 percent of Black students passed their reading SOLs versus 43 percent overall.

The disparity in graduation rates is largely the same. In 2018, 61 percent of all students with disabilities graduated high school — up from 38 percent in 2008. But only 52 percent of Black students graduated with at least a standard diploma. 

Rates were also lower for students with more severe challenges and in the southern region of the state, where only 47 percent of students with disabilities, of all races, received a high school diploma.

‘Diplomas’ for special education students can be misleading 

Not included in those graduation statistics is what’s called an “applied studies diploma,” which is what nearly 20 percent of students with disabilities leave high school with.

According to JLARC, the degree was first defined and established by the Virginia General Assembly to indicate that special education students finished high school. “Unlike the other diplomas, students do not need to demonstrate that they have met any particular academic standards or curriculum requirements to receive an applied studies diploma,” the report reads. “Instead, they need to complete only the requirements of their IEP.”

The diploma was approved under the assumption that the state’s Board of Education would develop additional requirements for completing one. But that never happened, according to JLARC. The degree has no required educational standards or curriculum. More troublingly, it’s not recognized by any of the state’s community or four-year colleges, giving it “limited value” in “helping recipients access post-secondary opportunities.”

“Students with an applied studies diploma who are interested in pursuing further education from a community college generally must obtain their GED before they can enroll and receive financial aid,” the report reads. “Similarly, [the U.S. Department of Education] considers the applied studies diploma to be a certificate, not a diploma, and does not allow VDOE to include the applied studies diploma in its annual report on graduation rates among students with disabilities.”

Dickinson said that many parents aren’t aware of the limitations of an applied studies diploma. One special education teacher quoted in the report said some families only learn their child is on track to receive the degree once the student reaches high school.

“Parents are surprised when they learn what the applied studies diploma is 100 percent of the time,” the teacher said. In some cases, it’s because they didn’t realize that early choices could limit their child’s future graduation plans.

“Critical decisions made during a student’s K-12 experience, such as deciding that the student will not participate in the SOLs, can make it difficult for students to eventually obtain a standard diploma — effectively making the applied studies diploma their only option,” the report reads. If parents don’t fully understand the constraints of the degree, it makes it harder for them to push back on those decisions.

Like graduation rates and SOL scores, Black students with disabilities are nearly 10 percentage points more likely to graduate with an applied studies diploma than their White peers. Students in southern Virginia also receive the degree at a rate that’s more than double the percentage awarded in Northern Virginia. 

JLARC recommended that the state’s General Assembly direct local school divisions to provide parents with more information on the applied studies diploma. At a minimum, the agency wrote, it should come up at a student’s first IEP meeting. It should also be addressed any time critical decisions are made that influence a student’s ability to receive a standard diploma.

“Currently, almost no such information is available on VDOE’s website,” the report found. The limited information provided online by some local school districts could also be “unclear and misleading.”

“For example, materials on two large divisions’ websites imply that students with an applied studies diploma can get into any program at a community college, which is not the case,” analysts wrote.

‘This approach appears ineffective’

When it comes to overseeing special education in Virginia — one of VDOE’s federally prescribed responsibilities — there’s a lot the agency doesn’t know, JLARC found. 

Analysts, for example, linked a shortage of licensed special education teachers to many of the statewide deficiencies surrounding IEPs and transition plans. But VDOE “does not know how many special education teachers there are in Virginia,” the report found, and fails to collect “basic information” needed to understand the magnitude of the shortage.

The same is true for dozens of questions surrounding special education in Virginia. While 95 percent of students with disabilities are taught in local public schools, and 71 percent spend most of their time in general education classrooms, VDOE does “little monitoring” of whether they have the same access to extracurricular activities. That’s despite the fact that federal laws require the agency to ensure that students with disabilities are given equal opportunities to participate. 

One overarching issue is that VDOE is primarily reliant on data reported by school systems themselves. Like the U.S. Department of Education, JLARC found that the state agency has only conducted onsite compliance reviews at 22 of the state’s 132 local school divisions since fiscal year 2016. 

“Given that these few on-site reviews are targeted at divisions performing poorly on federal indicator data (or self-reporting poor performance), the vast majority of divisions could conceivably go over a decade without receiving an in-depth review of their special education programs from VDOE,” the report found. The agency takes few other steps to validate self-reported information from schools, which lowers the quality of data on everything from classroom inclusion to disciplinary techniques such as suspensions and expulsions, which occur more frequently among students with disabilities.

“VDOE relies on divisions to self-report problems with their own policies, procedures and practices related to behavior management,” analysts wrote. “This approach appears ineffective because divisions rarely self-report any problems.” 

Despite the shortcomings of its overall monitoring procedures, JLARC concluded that VDOE did satisfy minimum federal requirements for investigating special education complaints. But for many lawmakers, one of the most concerning findings in the report was that the agency did little to ensure the same complaints were effectively resolved.

Many complaints, for example, center on school divisions failing to provide legally obligated special education services. But when VDOE finds those services are inappropriately withheld, it “rarely” orders local districts to provide compensatory programs, JLARC found. Instead, the agency generally orders school divisions to hold another IEP meeting and submit evidence that the possibility of providing those compensatory services was discussed.

“That’s exactly what happens,” said Oettinger, the special education parent in Fairfax County who’s challenged the reading services provided to her son. “VDOE will find somebody in noncompliance and then the school gets to determine what they’ll do. And then your recourse if you can’t come to some type of agreement is mediation or a due process hearing.”

While that makes resolving complaints much easier for school divisions, JLARC found it left them with little to no accountability for failing to provide legally required services — or for addressing how the delay might have impacted a student’s education. It can also leave parents with the burden of contesting a school division’s decision.

Due process hearings are often weighted toward schools in many cases unless parents can afford a special education lawyer or advocate. For the last decade, parents have been represented by attorneys in 33 percent of hearings, analysts found. Over the same time period, school districts were represented by lawyers 90 percent of the time.

Lawmakers will have the opportunity to take up JLARC’s recommendations in the upcoming General Assembly session. And the state Department of Education said Monday it is launching “a program of more frequent and comprehensive monitoring of local special education programs with several to-be-announced school divisions, beginning early next year.”

According to VDOE, the process will ensure that all 132 local school divisions go through a detailed review at least once every five years — and that the state will follow through on any required corrective actions.

But JLARC has also expressed concerns over some of VDOE’s previous promises.

While the agency began making changes to its monitoring procedures after the U.S. DOE’s letter in June, analysts wrote that the plans “appear to be insufficient to materially improve its awareness of problems within Virginia’s special education system.”

“For example, VDOE plans to require each school division to conduct a new self-assessment every six years on several aspects of special education related to compliance with certain laws and regulations,” the report continued. “But it is not clear that another division self-assessment, conducted in a six-year cycle, would represent a material improvement to VDOE’s monitoring capabilities.”

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