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 22

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

Q22: Why are younger students generally not found eligible for Specific Learning Disability when a “severe discrepancy” model is used for special education eligibility?

A: Under California law, 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)].  Many school districts are by default requiring a severe discrepancy by not looking to other allowable methods in determining a specific learning disability for special education eligibility purposes. [Please refer to You Asked #23 for additional information].

In California, a severe discrepancy is defined as a difference between intellectual ability (“IQ) and achievement of 1.5 standard deviations (or more)*. For our younger students with suspected dyslexia that would mean a “severe discrepancy” in areas such as basic reading (or spelling) on standardized achievement testing.

For younger students (Kindergarten through 2nd grade), it would be very difficult to have this large of a gap between IQ and standardized academic achievement test scores in reading or spelling.  The International Dyslexia Association (IDA) explains: “although there are many tests that may be used early (in Kindergarten and beginning of first grade) to assess beginning skills in reading and spelling, the standards for average achievement are generous. A child in late Kindergarten or early first grade may only need to read a few letters and two or three common words to score well enough to reach a score of “average”. Compared to other young learners, students with dyslexia may not seem to be “behind.” ” [Source:  The International Dyslexia Association, “Just the Facts: Testing and Evaluation“].

IDA states that “research demonstrates that additional direct instruction provided appropriately, beginning in Kindergarten through third grade, can help all but the most severely impaired students catch up to grade-level literacy skills and close the gap for most poor readers.  Assessment is the first step in identifying these students early to make sure they receive the effective instruction they need to succeed.” [Source:  The International Dyslexia Association, “Just the Facts: Dyslexia Assessment: What Is It and How Can It Help?]

So, it is unlikely that a younger student will demonstrate a “severe discrepancy” on standardized achievement testing for the reasons given above but we also know that early identification and appropriate intensive intervention greatly increases the positive outcomes for our dyslexic students so what should be done with respect to our younger students?

Even before formal assessment, careful early screening of younger students beginning in Kindergarten can help identify students at risk for dyslexia.  According to IDA, screening should occur in the following areas (before second grade), “it is more important to focus an evaluation on the precursors of reading development. Measures of language skills, phonological awareness, memory, and rapid naming are more suggestive of being at-risk for dyslexia among young children than are measures of word reading, decoding, and spelling. Therefore, measures of phonological awareness, memory, and rapid naming are typically included in Kindergarten and beginning first grade screening tests that can identify children who need targeted intervention to improve these critical skills so these children can meet grade-level benchmarks.” [Source:  The International Dyslexia Association, “Just the Facts: Testing and Evaluation“].

For purposes of assessment, California regulations appear to acknowledge the difficulty in identifying a severe discrepancy especially in younger children and provide IEP teams with flexibility in applying these rules under 5 CCR 3030(b)(10)(B)(3) which provides for the following:

“If the standardized tests do not reveal a severe discrepancy as defined in subdivisions 1. or 2. above, the IEP team may find that a severe discrepancy does exist, provided that the team documents in a written report that the severe discrepancy between ability and achievement exists as a result of a disorder in one or more of the basic psychological processes. The report shall include a statement of the area, the degree, and the basis and method used in determining the discrepancy. The report shall contain information considered by the team which shall include, but not be limited to:

(i)    Data obtained from standardized assessment instruments;

(ii)    Information provided by the parent;

(iii)    Information provided by the pupil’s present teacher;

(iv)    Evidence of the pupil’s performance in the regular and/or special education classroom obtained from observations, work samples, and group test scores;

(v)    Consideration of the pupil’s age, particularly for young children [emphasis added]; and

(vi)    Any additional relevant information.”

* –  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)].

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