An appeals court sides with a dyslexic girl who was denied special learning support
A federal appeals court has ruled that the state Department of Education violated federal law when it denied special assistance to a dyslexic public school student.
The 9th U.S. Circuit Court of Appeals ruled that the department procedurally violated the federal Individuals with Disabilities Act by exclusively relying on disputed criteria in evaluating the girl and concluding she wasn’t eligible for the services.
The court sent the case back to Hawaii to determine whether the girl is eligible for special assistance, and if she qualifies, to pay for the costs of her tuition at a private school.
Carl Varady, lawyer for the girl and her mother, called the decision a “really important step” toward eliminating the practice of evaluating students in a way that the federal law forbids.
He said the decision could affect hundreds of Hawaii public school students who were deemed ineligible for special education assistance.
Joshua Wisch, special assistant to Attorney General David Louie, said they are still reviewing the ruling, issued Thursday morning. He said they did not know whether the state will ask the appeals court to reconsider the ruling or ask the U.S. Supreme Court to review the case.
A three-judge panel of the appeals court issued the split 2-1 decision. Appeals Judge Richard Clifton, Hawaii’s only judge on the appeals court, dissented.
THE CASE DEALS with criteria for determining whether a student falls under the federal disabilities law that requires disabled students receive free and appropriate special public education.
The criteria is known as the “severe discrepancy model,” which measures students’ actual achievement and intellectual ability.
The majority — federal Judge Harry Pregerson and Judge Betty Fletcher — noted that scientific research in the last decade shows that the model doesn’t necessarily establish whether a student has a learning disability.
The model’s premise is that underperforming students with high IQs must have a disability, but underperforming students with low IQs are “slow,” the majority said.
The model tends to disqualify students with below average intelligence, the majority indicated.
In 2008, a hearing officer found that the dyslexic girl did not need special education because there was no “severe discrepancy.”
U.S. District Judge Helen Gillmor upheld the finding.
The plaintiffs, identified only as Courtney G. and her mother, Elizabeth G., maintained in their appeal that the department should not have exclusively relied on the “severe discrepancy model.”
The majority agreed. In dissent, Clifton noted Hawaii is the only state that runs all public schools.
He said federal law does not prevent a local educational agency from using the model.
The state, he said, should be considered the local educational agency and be given the authority, like every other school district in the country, to determine the eligibility criteria for special education.
Varady said the decision means that the department must consider the student as a whole, including progress in school, in determining eligibility, instead of exclusively relying on the model’s “artificial measurements.”
The state had been relying on that model until Thursday’s ruling, he said.
Varady said the girl was reading at a 2.4-grade level when she was in the fourth grade, and reading at a third-grade level in 2007 when she was in the sixth grade.
He said the state could have avoided costs that includes tens of thousands of dollars for his attorneys’ fees because he prevailed in appeal. The state also may have to pay the cost of the tuition for the private school the girl attended the past four years after she was denied special education, he said.
The girl has been attending Assets School, which has an annual tuition of $15,600, the majority noted.
“All it had to do was provide her with reading services,” which would have cost far less than what the state is now facing, Varady said.