Special Education Complaints Buried by D.C. State Office – Coalition Seeks Review of Years of Disregarding the Law Requiring Publication of Opinions

Fritz Mulhauser | February 28, 2020

Five D.C. public schools lost special education teachers to extended leaves for periods as long as five months in 2018-19. In violation of federal law, the schools made do with nonqualified replacements. But these paraprofessionals and substitutes could not provide the full hours of specialized instruction called for in the students’ individual education plans — legally binding contracts agreed to by the schools and parents.

The unlawful staffing, and a fire drill of remedial action needed to assess the learning lost and plan make-ups, came to light in an October 1, 2019, opinion letter obtained by the Coalition.

But there may be many more such situations; findings like these can turn up in the dozens of opinions issued each year by the D.C. Office of the State Superintendent of Education (OSSE) after investigations of complaints filed by parents or advocates charging violations of the Individuals with Disabilities Education Act (IDEA).  

Under the IDEA, OSSE distributes over $20 million annually to support education of 16,000 District students with special needs and federal law requires OSSE to oversee the program. That includes a requirement to promptly investigate complaints (which can be about one child or several) and order any corrective action needed to cure violations.

That sounds good — a watchdog that can bark to signal non-delivery of the needed services to some of the District’s most vulnerable children.

Except for one key fact: opinions like the October 1 letter with warnings of sub-par education never see the light of day (beyond the school and parent).

And that appears to be a violation of D.C. law requiring publication of all agencies’ opinions like these, according to a new complaint filed February 26 by the D.C. Open Government Coalition.

The Coalition has asked the Office of Open Government to review the OSSE failure to post online all “[f]inal opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.”

Those words in the D.C. Freedom of Information Act have for 20 years mandated this proactive publication of opinions and orders (and a dozen other kinds of basic information) in Internet reading rooms that are of course available without need of a FOIA request.

The Coalition request noted the powerful reasoning behind the law. “The intent of the mandatory publication rule,” said the request letter, “has been to avoid agencies developing a body of secret law. Publication helps show the public how to use the complaint process, the kinds of issues addressed, and results achieved. Denial of publication keeps the public in the dark whether the complaint process is effective. Many states publish their opinions of this type.” See Maryland’s here.

The Office of Open Government ruled earlier this year on a similar complaint by the Coalition, finding that the District Office of Administrative Hearings has violated the same law by failing for years to publish its tens of thousands of opinions. See the Coalition’s blog post on this ruling here.

There is no deadline for response by the Office of Open Government to requests for such opinions.