Learning disabilities, like dyslexia, auditory processing disorders or visual-perceptual deficits, are sometimes referred to as “hidden disabilities.” The reason is that learning disabilities are not visible the way certain physical disabilities are or quickly recognizable the way certain intellectual or developmental disabilities often can be. They are highly varied, harder to pinpoint and therefore, harder to diagnose and address.
Adding to these difficulties is the inconsistency with which learning disabilities are assessed by schools. Specifically, when it comes to dyslexia, although New Jersey law requires all students to be screened by the middle of second grade, many students never receive a screening or there is too often a lack of appropriate follow-up after that assessment, including multisensory reading and/or writing interventions.
So, what are parents to do when there appears to be no teeth to New Jersey’s dyslexia screening law? Other than advocating and potentially hiring an attorney, until recently there wasn’t much else parents could do. With two recent, powerful court decisions addressing dyslexia interventions in schools, the tides are changing, and children with learning disabilities have firmer ground under their feet.
A case recently decided by the New Jersey Office of Administrative Law (OAL) bodes well for families of students learning with dyslexia who are struggling to get proper services in their district. In T.S. and M.S. obo T.S. v. Ridgewood Village Board of Education, Administrative Law Judge (ALJ) Ellen Bass held that the district failed to meet its obligations to timely screen T.S. for dyslexia and failed to provide a free and appropriate public education (FAPE) through its reading support program.
This case is especially notable for 2 reasons. First, the ALJ held that dyslexia screening is part of the district’s obligation to assess students “in all areas of suspected disability” in accordance with N.J.A.C. 6A:14-2.5(b)(7). That means that a school is required by law to screen regardless of whether the parents request it.
The dyslexia screening law is codified outside the state special education code, meaning it applies to all students, regardless of whether they have an IEP or 504 Plan. It is located at N.J.S.A. 18A:40-5.3(a) and states:
[a] board of education shall ensure that each student enrolled in the school district who has exhibited one or more potential indicators of dyslexia or other reading disabilities is screened for dyslexia and other reading disabilities using a screening instrument selected pursuant to section 2 [C. 18A:40-5.2] of this act no later than the student’s completion of the first semester of the second grade.
Additionally, under N.J.S.A. 18A:40-5.4, if the screening reveals potential indicators of dyslexia, a comprehensive evaluation should take place. The ALJ also found that failing to assess the student properly led to his misclassification under a less appropriate disability category and resulted in an IEP that failed to adequately address his reading and writing needs. Once the school did include multisensory reading interventions in the IEP, the ALJ described their efforts as “too little too late.”
Second, the ALJ relied heavily on the New Jersey Dyslexia Handbook as a pertinent tool in determining how the State Department of Education interprets laws applicable to dyslexic students. The purpose of the NJ Dyslexia Handbook is “to provide information to educators, students, families, and community members about dyslexia, early literacy development, and the best practices for identification, instruction, and accommodation of students who have reading difficulties.” It also advises that “[s]tudents who are identified by the district’s universal reading screening tools as ‘at-risk’ and not considered ‘likely on track’ should be promptly placed into structured literacy interventions, progress monitored, and screened for dyslexia.” It urges districts to begin these processes as early as Kindergarten.
Of particular importance in this OAL decision was the court’s recognition of the NJ Dyslexia Handbook’s best practices rules for interventions. Specifically, it calls for “a minimum of 90-minutes of uninterrupted literacy instruction daily in grades K-5.” (Emphasis in the Handbook). Ultimately, the parents were awarded tuition reimbursement and other expenses for their unilateral placement of T.S. at a non-state approved private school that adhered to the best practices outlined in the Handbook and met his individual needs.
This decision came just three days after a huge win for dyslexic students in Nevada. In Rogich v. Clark County School District, the family of a dyslexic student successfully sued the district for disability discrimination under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act following the district’s failure to address their daughter’s need for multisensory reading instruction.
The Court noted in Rogich that the issue was not only the type of instruction but the method of instruction. Where expert testimony indicated that the student required a methodology that was research-based, systemic, cumulative and rigorously implemented, and district personnel were not properly trained or credentialed to provide such a program, the student had been denied a FAPE.
The remarkable aspect of this case was in the parents’ assertion that the district’s refusal to include Orton-Gillingham or a similar structured literacy program in their daughter’s IEPs, despite being on notice that she needed that programming, amounted to the denial of a reasonable accommodation necessary for a disabled student to receive the benefit of a public education. The court found that the cost of training teachers in the required method was minimal and therefore, reasonable.
The court also agreed with the parents that the district’s refusal to train its teachers in the appropriate methodology constituted the “deliberate indifference” required to sustain their disability discrimination claims. The court held: Plaintiffs notified Defendant of O.R.’s need for the identification and implementation of a methodology, and Defendant failed to act despite knowing that O.R. would be deprived of educational opportunity without adequate programming. … Moreover, as the Court has already noted, O.R. required more than mere components. She required the implementation of consistent programming throughout the day. The IEP teams’ failure to recognize this, despite having notice in the form of recommendations provided in the evaluations and discussion with O.R.’s parents, demonstrates deliberate indifference. The record therefore establishes that Defendant violated Section 504 of the Rehabilitation Act.
The implications of T.S. v. Ridgewood Village and Rogich are far-reaching. In fact, the Learning Disabilities Association of NJ (LDANJ) reports that, based on numbers from the National Center for Education Statistics, 2.4 million students are diagnosed with specific learning disabilities (SLD) and receive services under IDEA. This number represents 41% of all students receiving special education services and makes it the largest disability category for special education classification in the country. Of those students, 75% – 80% of them struggle with deficits in language and reading. Dyslexia specifically impacts the ability to recognize words, decode and spell, and often impacts reading comprehension. It can also negatively impact one’s ability to identify spoken words. LDANJ also reports that 60% of adults with severe literacy problems have undetected or untreated learning disabilities.
By laying a foundation for dyslexic students to receive timely diagnoses and consistent, high-quality, intensive interventions from their school districts, these cases are moving the rights of students with learning disabilities unequivocally in the right direction. If you are struggling to get your child the appropriate services, reaching out to an experienced and caring attorney is best done sooner rather than later.