Two families of special needs kids in Fairfax County are asking Virginia’s highest court to force Attorney General Jason Miyares to investigate the state’s support systems for kids like theirs. And in an interview one of the families says Miyares violated state law by prioritizing political investigations over issues their children are facing.
The petition, called a writ of mandamus, comes as a request to the high court after the parents appealed the denial of accommodations for their children with learning disabilities. Virginia got about $13 billion in federal funds for the Individuals with Disabilities Education Act program, or IDEA, in 2022. Parents apply for support for their special needs students through the counties, and accommodations are given based on a student’s needs. This can include in-school support or funds to send the child to another facility.
But if a student is denied an accommodation, or if the parents are unhappy with what they were offered, they can appeal through an administrative process run by the state. But, following the denial of their request, and their own investigation, the parents in Monday’s filing say Virginia has the lowest successful appeal rate in the country; while most states see about 30% of accommodation denials overturned, Virginia’s rate is about 1.8%.
Other numbers found via FOIA requests show about 2/3rds of appeal hearing officers have never sided with students.
The parents say this data shows bias exists and Miyares and the VDOE have violated the Virginia Human Rights Act, VHRA, by failing to investigate it.
“Education is a state constitutional right of parents, and they ought to be able to challenge school districts if there are systemic defects such as the defects we found,” said Trevor Chaplick, one of the parents on the filing.
The filing comes after the parents filed a complaint with Miyares’ Office of Human Rights, a complaint they say his office failed to respond to until months later, long past the VHRA’s 15-day response deadline.
In that response, Miyares said his office could not investigate the VDOE because the AG’s office is its legal counsel. He also said the agency is protected from VHRA claims by sovereign immunity.
The parents are also involved in a parallel, since-dismissed federal complaint against the Virginia Department of Education and Fairfax County which the family is appealing.
In that federal court fight, Eastern District of Virginia District Judge Michael S. Nachmanoff granted the state’s motion to dismiss because the families failed to complete the administrative process. But the families argue the way Virginia has set up the administrative process, as their data suggests, makes it impossible for them to get justice.
Nachmanoff noted this as well, noting other states have since loosened their IDEA appeals standards, sometimes even under court order, but not yet in the appeals court which oversees Virginia.
“[W]hile it acknowledges the courts in other jurisdictions that have done so—this Court is nonetheless constrained by the law of the Fourth Circuit, which has not yet adopted that modified standard,” the judge wrote, teeing up the families’ appeal. “For that reason, the Court will not alter the existing exhaustion standards here.”
In the November letter, Miyares said any remaining complaints Chaplick and his fellow plaintiffs have are “properly before the DOE and Fourth Circuit.”
Briefing in that appeal is due this week with oral arguments at the Richmond-based appeals court expected in the coming months. Chaplick hopes recent U.S. Supreme Court precedent dealing with futility in the IDEA administrative process may aid their case.
But in the meantime, Chaplick wonders why Miyares has chosen to investigate what he considered to be political issues, like the status of James Madison University’s football team or the withholding of National Merit Scholarship awards for high school students, instead of the wellbeing of his child’s education.
“If the Attorney General wanted to help disabled children, he could do so,” said Chaplick.
“Instead, the Attorney General seems far more concerned with advocating on behalf of his alma mater to seek access to a postseason bowl game.”
“We believe that the disabled in Virginia deserve better and are entitled to the protection of his office,” he added.
Requests for comment on how Miyares uses resources within his Office of Human Rights were not returned by publication time.
There’s no deadline for a response from the Supreme Court of Virginia on Monday’s filing, but Chaplick hopes one comes soon.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
