A federal judge raised many an eyebrow last year when he ruled that having dyslexia always and automatically means that the student also has a “specific learning disability” (SLD) and is, therefore, eligible for special education services under IDEA. We told you about this ruling in the Daily Dawg on January 10, 2019. The case was “vacated” by the 5th Circuit because the judge failed to take into account the requirement that a student—even one with SLD—has to demonstrate an “educational need.” To be eligible, the student has to “need specially designed instruction,” i.e., special education services. Thus the 5th Circuit sent the case back to the lower court for consideration of “educational need.” We told you about the 5th Circuit decision on September 4, 2019.
Now the original judge has weighed in again, this time applying the “educational need” standards laid out by the 5th Circuit. With regard to the relationship between dyslexia and SLD status, the judge stuck to his guns, noting that “the IDEA itself explicitly defines dyslexia as an SLD.” Key Quote:
In the present case, [the student] has already been diagnosed with an eligible condition. Such a diagnosis negates the need for additional testing to determine SLD status and the District’s discretion in making such a determination.
Notice that the district acknowledged that the boy had dyslexia, and provided
services to address this. The disagreement was about if that meant that he also
had an SLD. The district did a full
evaluation, including a cross-battery assessment and concluded that this
student’s dyslexia did not amount to a SLD.
But again, the judge disagreed.
In the judge’s mind it’s pretty simple:
Dyslexia=SLD
Thus William met the first part of the eligibility criteria: he has a learning disability. But what about the “need” component? The judge reviewed the services that the school was providing on the basis of the dyslexia diagnosis, and declared them to be “special education.” This is the most important part of this decision, in that it reflects the reality that a school might be providing “special education” services even when it calls those services something else. Here’s what the judge called “special ed”:
Daily dyslexia services in the general education setting; extra time to complete assignments; having an opportunity to repeat and explain instructions; sit near the teacher; receive reminders to stay on task; and have all material, except reading class passages, read to him.
The judge went on:
Furthermore, [the student] began participating in a Wilson Reading System group for students with dyslexia for 45 minutes during the RtI period. [He] also attended 45-minute long one-on-one tutoring sessions with the interventionist after school on Thursdays, specifically using the Wilson Reading Program.
The judge held that the district had “adapted the content, methodology, and delivery of instruction to specifically address the unique needs of [the student].” That’s the very definition of “special ed.”
So to recap: the judge ruled that the student satisfied both prongs of eligibility. He had a qualifying disability (SLD) and he needed the adaptations to content, method and delivery that the district was providing. He needed special education services due to his SLD. Therefore, the judge concluded he should have been determined to be eligible for special education services. Even though the district’s ARD Committee concluded that he was no longer eligible for special education services, the district continued to serve the student through an IEP while the parties wrangled in legal proceedings. That turned out to be a good thing for the district. The court concluded that the failure to identify the student as “eligible” was a procedural error…but one that did not cause harm. The district provided appropriate services and the boy made progress. The court pointed out that “progress” should be measured by individual achievement, rather than a comparison to peers. By that standard, the record showed plenty of progress.
This is a complicated case, but one that special ed types should think about and discuss. I think there are two main “takeaways” here. First, here is one federal judge who thinks that dyslexia is always an SLD. If one judge thinks that, others will as well. Second, just because you call it “dyslexia services” or “RtI” does not mean that a judge will see it that way. This judge disregarded the label the district attached to the services and simply compared the services to the legal definition of “special education.” Thus the district was guilty of “committing special ed” when it didn’t think it was. This is not the first time this has happened and won’t be the last.
This one is William V. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on October 22, 2019. We found it at Special Ed Connection, 75 IDELR 124.
DAWG BONE: WHAT YOU CALL “DYSLEXIA SERVICES” MIGHT BE “SPECIAL EDUCATION.”
Tomorrow: Two Four Six Eight—Who Do We Appreciate? The Fifth Circuit!!