Open Government Coalition Complaint Leads to New Order: D.C. Special Education Decisions Must Be Published

Fritz Mulhauser | August 31, 2020

The D.C. state education agency must post its decisions on complaints about special education in D.C. schools., according to a decision of the Office of Open Government released Friday (28).

The D.C. Open Government Coalition asked for a review of the Office of the State Superintendent of Education (OSSE) practice after receiving citizens’ complaints that the District’s long-troubled special education program required individual requests from anyone interested in complaint decisions.

As a condition of receiving over $20 million each year in federal funds to help educate 16,000 students with mental and physical disabilities that can affect learning, D.C. must promptly investigate complaints from parents and others. And the D.C. Freedom of Information Act requires that opinions in such cases be published online.

After a six-month investigation of the Coalition’s February complaint, the Office of Open Government found OSSE has never published its opinions, though both the complaint and publication requirements have been in effect for decades. The new opinion orders the state agency to post all decisions from November 1, 2001.

The agency recently posted 21 opinions from the last two years. Coalition review showed why the decisions are important to the public, but also how full transparency is still a work in progress since details and some full opinions are still withheld.

First, the published investigations show problems even after years of court challenges of the D.C. special education program overseen by OSSE:

• For the 2018-19 year (the last full year) the 14 published opinions concerned charter and DCPS schools equally (7 each). Investigators found violations of the law in 8 of 14 cases.
• In the partial year 2019-20 another seven complaints involved four charter and three DCPS schools. Violations of law were reported in all.
• The reported violations included schools delaying evaluations of children’s disabilities, not providing the services prescribed in individual plans, and excluding parents from access to records and meetings. Each opinion requires corrective actions such as make-up services, access to records, and additional staff training on requirements in the law.

Second, the posted opinions are still incomplete in several ways:

• School names are redacted. Agency guidelines say any public interest in knowing where violations of law have happened is outweighed by the possibility the school name could allow identifying the individual student.
• A separate list shows that 14 more opinions have been withheld altogether. For example, the OSSE guidelines state that no opinions on complaints from nonparents will be published unless accompanied by consent of all parents involved. Federal rules allow complaints on behalf of a group of students, for example if a school lacks qualified special education staff. Consent of parents seems both unnecessary and also impossible since the filer can’t know all those affected by a systemic violation. Yet findings from such complaints, like those of “class action” lawsuits, may be the most important of all.

The OSSE decisions on redaction and withholding once again show the larger pattern found by the Coalition across D.C. government. Officials often justify redactions and full denial of access to records with interpretations of privacy law the Coalition believes are incorrect.

–Since 2019 names of schools have been withheld where confirmed instances of sexual abuse occurred. A Coalition appeal has been pending since January.

–Police body-worn camera video is subject to costly and drawn-out over-redacting. A Coalition complaint about the BWC video redaction is pending with the Office of Open Government.

–Files on citizen complaints and internal investigations of police misconduct are not available at all. The Coalition has previously asked, and will renew its advocacy to the D.C. Council in its upcoming police reform legislation to broaden public access as California and New York have both done.