Dr. Samantha Hollins, Assistant Superintendent for Special Education and Student Services

Department of Education  

101 N. 14^th Street

Richmond, VA 23219

RE: Supplemental Guidance for Evaluation and Eligibility in Special Education and Sample Eligibility Forms and Disability Worksheets

Dear Dr. Hollins,

The disAbility Law Center of Virginia (dLCV), the Commonwealth’s federally mandated protection and advocacy system, respectfully submits the following public comment in relation to the Department of Education’s (DOE’s) Supplemental Guidance for Evaluation and Eligibility in Special Education and Sample Eligibility Forms and Disability Worksheets (Supplemental Guidance). We strongly urge DOE to amend this Supplemental Guidance to better ensure fair special education evaluation and eligibility processes and equal access to special education and related services for all students with disabilities in Virginia – regardless of their race, color, national origin, or socioeconomic status. Amendments should:

1. Strike sentences 2 and 3 of paragraph 2 on page 19; and
2. Add clear definitions of the following terms: “environmental factors”, “cultural factors”, “economic factors”, “socioeconomic factors”, and “linguistic differences”.  

dLCV would like to start by commending DOE for its dedicated work toward improving the administration and oversight of the Commonwealth’s special education system in response to Recommendations 1 and 2 from the 2020 Joint Legislative Audit and Review Commission report on K-12 Special Education in Virginia (JLARC Report).

However, the Supplemental Guidance improperly allows evaluation and eligibility teams to attribute a student’s significant underperformance to “cultural and linguistic differences and socioeconomic factors” when deciding if they suspect a disability.[i] Teams’ use of this highly subjective analysis will result in the inappropriate denial of special education services to students with disabilities and disproportionately harm students of color with disabilities, or who are from low-income families, or who are learning English.

In the “Determining Eligibility” section, the Supplemental Guidance mentions research – without citation – that shows that “cultural and linguistic differences may result in an impact of up to 35 standard score points” on certain tests.[ii] By failing to cite this research, DOE restricts team members’ ability to consult the underlying analyses and better understand when to apply the results. This increases the risk that these findings will be misinterpreted and incorrectly applied.

Mentioning this research, especially without citation, is additionally problematic because it creates a large loophole in evaluation and eligibility processes through which teams can determine that students with undefined “cultural and linguistic differences” who perform below norm do so because of those differences, and not because of a potential disability. Ineffective or inappropriate identification and eligibility determination practices, including racial and cultural bias among individuals making these determinations, will result in variations in special education enrollment.[iii] In fact, the JLARC Report calls this “a nationwide problem that continues to affect special education.”[iv] Instead of remedying this issue, DOE contributes to it by suggesting a new practice that defers greatly to team members’ opinions of the impact that subjective, non-academic factors have on students’ academic performance. Moreover, this practice expands the effect that individuals’ potential biases have on their decisions to grant or deny an evaluation referral or find a child eligible or ineligible for special education services. Because sentences 2 and 3 of paragraph 2 on page 19 of the Supplemental Guidance will result in more students with disabilities being incorrectly identified and denied the services they need, these sentences should be stricken.

Additionally, although the Supplemental Guidance was developed in response to JLARC Report Recommendations 1 and 2, it inadequately addresses the issues that these recommendations stem from. Recommendation 1 specifically suggested that DOE more clearly define “environmental, cultural, or economic factors.”[v] In the Supplemental Guidance, however, DOE not only fails to provide definitions of these factors, but also proposes that they play a larger role in determining a student with a disability’s receipt of special education. Thus, these undefined, ambiguous terms are more problematic now than they were prior to the JLARC Report.

Clearly defining key terms would also “better ensure more accurate and consistent eligibility determinations and equal access to special education services across school divisions” – an improvement suggested by Recommendation 2.[vi] Without definitions of the factors that DOE asks teams to consider in evaluation and eligibility processes, standardization and nondiscriminatory implementation of these processes across Virginia is impossible. Due to the common use of and reliance on the terms “environmental factors,” “cultural factors,” “economic factors,” “socioeconomic factors,” and “linguistic differences” in 8 Va. Admin. Code 20-81-80 (Eligibility), the Guidance on Evaluation and Eligibility for Special Education and Related Services, and the Supplemental Guidance, DOE should add clear definitions of these terms to the Supplemental Guidance. 

The above amendments to the Supplemental Guidance for Evaluation and Eligibility in Special Education and Sample Eligibility Forms and Disability Worksheets are necessary to ensure that DOE fulfills its responsibility to provide an equitable and just special education system for students with disabilities of all races, colors, nationalities, and socioeconomic backgrounds in the Commonwealth. Thank you for your thoughtful consideration of dLCV’s public comment.

Sincerely,

Colleen Miller

Executive Director