Student Who Uses a Letterboard Wins Rare Due Process Case Against Fairfax County Public Schools (VA), Part 4: You Can't Measure What a Student Knows While Blocking How the Student Communicates
"[Student] was witty, fluid in language, and able to answer questions in detail when appropriately supported...." He is not low-functioning. FCPS’s prior assessments underestimated him.
May 23, 2026, Virginia special education Hearing Officer Polly Chong issued a decision in VDOE Case No. 26-016 finding that Fairfax County Public Schools (FCPS) denied a student a free appropriate public education (FAPE), under IDEA.
The student and parents prevailed.
The first article in this series focuses on the bigger picture. The second article focuses on the fact that a professional organization’s (ASHA in this case) general position doesn’t amend an individual student’s IEP. The third article focuses on deference to educators. This article drills into another of the decision’s legal points: you can’t measure what a student knows while blocking how the student communicates.
Evaluating Barriers Instead of the Student
FCPS previously relied on data and goals that significantly underestimated the student’s abilities.
That is supported by the testimony of Dr. William Ling and by the hearing officer’s own observations of the student during the hearing. The following comes from the hearing officer’s decision:
“When asked questions about The Invisible Kid, he responded that the story was about a reflection of what it is like living in a body that refuses to listen to his brain and “those that never see me for who I truly am.” (3/26/26 Tr. P.14-15) He was able to identify Emily and Celia as his current IAs who are training in S2C to support him. The Student briefly turned around and smiled. There were times, at this point, that he would lift up his left hand and either touch or scratch his face. He was able to identify the letter he wrote to his friend Noah where he expressed “frustration....the thing I know is that Emily and Celia certainly care about me.” (3/26/26 Tr. P.24). At this time, he was not sitting straight and Ms. Berg prompted him to reposition himself. Then he blurted out something. When asked about his experience with Dr. Ling, he responded that it “was exciting....with appropriate support...to show my intelligence.” (3/26/26 Tr. P.26)
“At this time, observers were coming in and out of the hearing room. The undersigned told them to be respectful and not cause distraction as this was the child’s opportunity to testify. In addition, someone’s vehicle was blocking the school buses which caused an issue. After this, the Student seemed to be able to maintain focus and respond to questions while making audible sounds. When asked about a letter to the Superintendent, he responded that he was “frustrated....that nothing had changed....I am advocating for presuming competence and understanding apraxia and they had a hard time with both at Oakton.” (3/26/26 Tr. P.28-29) Then a 10 minute recess was taken. The Student got up and paced back and forth in the area behind the school district attorneys. Once the hearing reconvened the Student continued to make audible sounds. When asked about absences, bathroom breaks and English, he responded that he had challenges staying regulated and in control of his body. The Student briefly switched to letterboard but when asked, he responded he preferred keyboard. (3/26/26 Tr. P.39).
“He testified about the difficulty of being in class when the person supporting him has not learned the letterboard well. He explained that he is then unable to communicate at a level that demonstrates his intelligence, and that it is challenging to express opinions when he is limited in what he can spell. He expressed appreciation for Emily and Celia as his current IAs training tobecome CRPs, and also explained that progress had been slow. (3/26/26 Tr. P.14-44). Despite having testified for approximately two and a half hours, he opted to continue with cross examination. He continued to make audible sounds. The SD attorney asked him who he uses S2C with and he responded “Kelly, Mom, Dad, Emily and Celia.” He was able to explain that depending on who he was partnered with, would decide whether to use laminate, letterboards or keyboards. He understood the training where individuals begin with stencils and then work with a hierarchy of boards. He noted that he always spells with a keyboard with Kelly Berg. (3/26/26 Tr. P.42)
“A ten minute recess occurred then the parties reconvened. The Student described his favorite classes. He did not want to re-take classes where he got a poor grade. (3/26/26 Tr. P. 46) He is able to navigate his iPad and phone for access photos, games, and videos. He expressed the desire to graduate high school and then take some local college classes and participate in advocacy work. (3/26/26 Tr. P. 48)
“Every time the Student was directed to review an Exhibit, his mother would hold the Exhibit up for him. When his posture changed, Ms. Berg would either tap the back of his chair or lift up the keyboard. She would position the keyboard in the same manner and he would continue typing using his right hand index finger. He then switched to letterboard; the Student pointed to the letter while Ms. Berg audibly calls out the letter he pointed to. At one point he got up from his chair and walked around the area. He was pacing back and forth all and making audible sounds.
“The Student again would use his left hand to either touch or scratch his face while still making audible sounds. He got up again to walk, pacing back and forth. His father redirected him and he sat down. Near the end of this testimony, he brought both his hands to his face, shaking and bouncing in the chair. Then scratching his ears. The Student, near the end, started typing faster.
“Ms. Berg emailed a copy of the transcript to all the parties.
“The Student was a credible witness, appeared competent, smart, respectful, and trying hard to regulate his body. His testimony was compelling and observing him in real time was significant. He displayed remarkable patience/control having testified for most of the morning, and he had a good bond with his CRP as he appeared very comfortable with her. He expressed appreciation for his IA-CRPs, Emily and Celia. His testimony is given substantial weight because it directly addressed his communication, the effect of a trained CRP support, and the supports he requires to participate meaningfully in school.”
This matters because the student’s testimony did more than show that he could communicate. It showed why the method of communication controlled what adults could accurately measure.
If he was assessed without the communication support he needed, the assessment risked measuring the barrier instead of the student.
