Breaking News: Federal Class Action Dyslexia Lawsuit Settlement Reached Against a CA School District!

On July 8, 2021, a proposed settlement was agreed to in a class action case filed on May 2, 2017, by four current and former Berkeley Unified School District (“BUSD”) students with reading disorders, including dyslexia (Student A. et al. v. Berkeley Unified School District  was filed in the federal court for the Northern District of California, Case No. 3:17-cv-02510). The Court has given preliminary approval of the settlement and has scheduled a hearing for November 4, 2021 at 2:00 p.m.

The students who brought the case claim that BUSD discriminates against and fails to provide students with reading disabilities a Free Appropriate Public Education (“FAPE”), to which they are entitled to under federal and state law. 

As a result of this settlement, BUSD will work collaboratively with nationally recognized outside consultants to develop and implement a Literacy Improvement Plan (“Plan”) to improve reading and language arts achievement for all students, and especially those with or at risk for reading disabilities. 

Settlement to Accomplish Four Plan Goals:

  • Goal 1: Develop Programs to Improve General Education Reading and Language Arts achievement for all Students, especially those Students with or at risk for Reading Disabilities, including Dyslexia.
  • Goal 2: Increase the Systematicity and Intensity of Tier 2 and 3 Reading and Language Arts Intervention of the MTSS Framework to Reduce the Achievement Gap for Students at risk for Reading Disabilities.
  • Goal 3: Ensure Fidelity of Literacy Improvement Program Implementation through District Monitoring of Literacy Improvement Program and Staff Engagement. 
  • Goal 4: Special Education Programs: Increase Reading Achievement by Improving the Quality of IEP Goals and Section 504 Plan Development, Progress Monitoring, and use of appropriately intensive, Research-based Interventions. 

Settlement Highlights Include:

  • BUSD will identify students at risk for reading disabilities through universal screening and universal screening will inform early intervention. BUSD will also conduct Benchmark Assessments in the fall, winter, and spring to ensure reading growth for all students. BUSD to implement a “reading data system” and “reading testing system” for use in Grades K-8 to measure students’ reading fluency, and their progress toward “benchmarks” or academic goals including parental notification. Testing will include, but not be limited to, letter sound correspondence, diagnostic surveys of print knowledge, phoneme awareness, phonics, word reading, spelling, written expression, and reading fluency.
  • For its Multi-Tiered System of Supports (MTSS) –

°BUSD has selected FastTrack as a supplement to its core language arts program (Tier 1). According to the scope and sequence for the adopted program, BUSD will provide appropriately intensive research-based phonics instruction at a frequency   estimated to be at least 115 minutes per five-day week, including time spent conducting assessments. Its core reading program will be supplemented to be of appropriate intensity in terms of academic English and explicit phonics and phoneme awareness instruction. Language for Learning, Language for Thinking, Wilson Fundations, Systematic Instruction in Phonological Awareness and Phonics – SIPPS and FastTrack are programs named as examples.

°Tier 2 and Tier 3 reading interventions must align with the International Dyslexia Association’s Knowledge and Practice Standards for Teachers of Reading. BUSD has selected Wilson Reading Systems and, for students with suspected reading disabilities,  will prohibit the use of Fountas & Pinnell Leveled Literacy Intervention or Reading Recovery except in “exceptional circumstances”.

  • Special Education Programs – BUSD will transition from using the severe discrepancy model and adopt the Pattern of Strengths and Weaknesses Model Weaknesses for specific learning disability eligibility. BUSD will increase use of the MTSS as part of the comprehensive evaluation to identify students with specific learning disabilities, including dyslexia. 
  • The settlement includes regular outside monitoring, hiring of nationally-recognized outside consultants, and professional development for staff and administrators.

Thank you to the team of plaintiff’s attorneys (Jacobson Education Law, Disability Rights Education & Defense Fund, Goodwin Procter LLP, and King & Spalding LLP) who tirelessly worked on an either pro bono basis or at a mere fraction of their legal fees to represent these vulnerable families. 

You Asked! – Question 21

Download a PDF version of this You Asked question and answer HERE.

Q21:  We suspect dyslexia but the school wants to delay assessing and they say my student won’t be eligible for special education as he is not two years behind.  Is this correct?

A:  This is an unfortunate “urban legend” that has been repeated so many times that many school personnel believe it to be true.  There is nothing in federal or California education law that states that a student must be two or more years behind in school to be found eligible for special education.  If this were the case, it would be impossible for a student in kindergarten or first grade to ever be found eligible as they haven’t been in school for two years and it would be very difficult for even a second grader to be found eligible.

So where did this incorrect information originate? 

As far as we can tell, it seems to be a result of confusion regarding use of the “severe discrepancy” model in identifying students as having a “Specific Learning Disability” for special education eligibility.

Under California law, there are three possible methods of determining whether a specific learning disability exists. One method allows for the use of a severe discrepancy model [5 CCR 3030(b)(10)(B)].  A severe discrepancy is defined as a difference between academic achievement and intellectual ability (“IQ”) of 1.5 standard deviations or more (adjusted by 1 standard error of measurement).

Let’s look at an example using a standard bell curve.  Assume this student has an average IQ of 100 (standard score).  In order to have a severe discrepancy, the student would have to receive a standard score in basic reading skills of 78 (or less) in order to have a standard deviation of 1.5 (or more).  [This would also apply to oral expression, written expression, reading comprehension, mathematical calculation or mathematical reasoning scores].

In its most simplistic form, you can take your student’s IQ* standard score and subtract 22.5 points. The difference (IQ-22.5) is the standard score that would result in a 1.5 standard deviation score (adjusted by one standard error of measurement, not to exceed 4 points). You can then compare this number to the standard scores your student received on standardized academic achievement testing in order to determine whether there is a severe discrepancy or not. Any scores at or below this number would indicate the presence of a severe discrepancy.

In our example, a student would have to perform very poorly to have this much of a gap between achievement and IQ so perhaps this has been incorrectly interpreted to mean a “two-year gap”.

However, there are a few critical things to note:

  1. In California, the use of severe discrepancy may be considered but must not be required. [5 CCR 3030(b)(10)(B)], 34 CFR 300.307(a)(1)].
  2. There are two other methods for determining a Specific Learning Disability – student doesn’t make sufficient progress when using Response to Intervention (“RTI”) [5 CCR 3030(b)(10)(C)(1) and 5 CCR 3030(b)(10)(C)(2)(i) or the student exhibits a “pattern of strengths & weaknesses” [5 CCR 3030(b)(10)(C)(2)(ii)].
  3. In addition, even if standardized tests don’t reveal a severe discrepancy the IEP team may still find that one exists [refer to 5 CCR 3030(b)(10)(B)(2) or 5 CCR 3030(b)(10)(B)(3).

So, the next time you hear the “must be two years behind” statement, request in writing that the school district show you where this is reflected in the education code. [Spoiler Alert:  It won’t be found.]

It can be helpful to ask the IEP team to provide documentation of the eligibility criteria they used in determining whether a Specific Learning Disability (SLD) exists and to walk you through their analysis.  There are often  “Specific Learning Disability Team Determination of Eligibility” forms that need to be completed and you should request a copy for your records. [IEP meetings discussing special education eligibility can be very complicated and may feel overwhelming to some parents. It is a good idea to audio record your student’s IEP meetings so you can listen again to any sections that were confusing.  You just need to provide 24-hour advance notice in writing that you will be doing so.]

In addition, please refer to You Asked! question 23 as to why the use of severe discrepancy should be abandoned.

* –  Please be advised that in California, IQ testing of African-American students is prohibited [refer to Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal 1979), 793 F. 2d 969 (9th Cir. 1984), 37 F. 3d 485 (9th Cir. 1994).  Also, see article from CA Association of School Psychologists (CASP Today Spring 2013 – Larry P. Edition, pgs. 7, 17)].

For more YOU ASKED questions and answers click HERE.