CASE LAW UPDATE

The Legal Meaningof Specific LearningDisability for SpecialEducation Eligibility

Perry A. Zirkel

Students with specific learning disabili-ty (SLD) continue to account for ahigher proportion of all special educa-tion enrollments than any other classi-fication under the Individuals withDisabilities Education Act (IDEA).According to the latest reported data.in fall 2007 students with SLD amount-ed to 43.3% of al! students witli dis-abilities ages 6 to 21 under IDEA, downfrom the 50% average for the previousdecade [Rehabilitation Research andTraining Center. 2009).

Probably the most frequent topic inthe special education literature sinceIhe 2004 amendments to IDEA hasbeen the movement toward a response-to-intervention (RTI) approach foridentifying students witli SLD. Theamendments expressly required eachstate to select RTI either as mandatedor permitted for this purpose, and atthe same time to designate the tradi-tional approach of severe discrepancyas permitted or prohibited; and todetermine whether an alternate,research-based approach would beallowed. According to the most recent

62 COUNCIL FÜR EXCEPTIONAL CHILDREN

survey of state laws, 12 states haveadopted RTI as the required approach,whereas the vast majority of statespermit both RTI and severe discrepan-cy—with approximately 20 states addi-tionally allowing the third research-based option—thereby effectively leav-ing the choice to local districts (Zirkel& Thomas, 2010).

A Council for Exceptional Children(CEC) monograph (Zirkel, 2006) com-prehensively canvassed the litigation—both published hearing/review officerand court decisions—concerning SLDidentification under IDEA. The majorfindings included (a) the total amount-ed to approximately 90 pertinent casesfrom 1980 to 2006. with about fourfifths at the hearing/review officerlevel; (b) the frequency of the deci-sions rose gradually during this period,with the majority arising in California(n = 20), Pennsylvania {n = 1 5 ) , andNew York {n = U); and (c) school dis-tricts, typically defending the positionthat the child was not eligible as SLD,won approximately 80% of the cases,with the most frequent decisional fac-

tors being severe discrepancy (n = 68)or the need for special education (n =31).

The purpose of this article is to pro-vide an update of the frequency, out-comes, and basis of the publishedhearing/review officer decisions con-cerning SLD eligibility since the 2006monograph. The specific questionsinclude:

1. Have the upward slope andCalifornia predominance in frequen-cy continued?

2. Has the trend of district-friendlyoutcomes changed?

3. Has RTI become a major decisionalfactor in these cases?

MeflhedAs in the CEC monograph (Zirkel,2006), the primary database was theIndividuáis with Disabilities LawReporter (IDELR). which is the mostcomprehensive publication of hear-ing/review officer and court decisionsunder IDEA. For court decisions, theWestlaw database served for double-

checking that the identification of thereiev<int cases was complete and ascer-taining the citations of any officiallypublished cases.

The cases were limited to hear-ing/review officer and court cases inthese two databases that specificallydecided whether a student, upon ini-tial evaluation or upon réévaluation,qualified for special education servicesunder the IDEA classification of SLD.Rulings as to other legal claims withinthe same case were not part of the tab-ulation. Examples of bordering casesthat did not meet the selection criteri-on included those based on parentalconsent for an SLD evaluation {ChicoUuißeä School District, 2009J; failureto evaluate SLD for otherwise classi-fied student where the issue was freeappropriate public education [FAPE)[Department of Education v. L.K.,2006); language processing and writ-ing problems in terms of the IDEAclassification of speech and languageimpairment {Board of Education ofOssining Union Free School District,2006); and a peripheral determination

of SLD ineligibility {Brendan K. v.Easton Area School District, 2007;Strcjck u. Itidependetit School DistrictNo. 281, 2008; Williamson County Bd.ofEduc. V. C.K., 2009). The only mar-ginal case that was included {PencaderCharter School, 2008) is a state com-plaint resolution decision, whichIDELR reported and which is at leastpartially akin to a hearing officer deci-sion. Finally, if a case proceeded tomore than one level of published adju-dication under the IDEA, such as ahearing officer and then court appeal,the tabulation was limited to the high-est and most recent decision.

Results

Table 1 presents the pertinent decisionsin chronological order, and includesboth hearing or review officer decisions(denoted by the acronym SEA) andcourt decisions (in bold type). Thedecisional factors track the basic com-ponents of the IDEA definition of SLD:

• Disorder in one or more psychologi-cal processes.

• Disorder-related exclusions (e.g..

learning problems primarily the

result of other IDEA classifications).

• Discrepancy A: achievement notcommensurate with age or ability(i.e,. general) after appropriateinstruction in general education.

• Discrepancy B: severe discrepancybetween achievement and intellec-tual ability in one or more of eightspecified areas.

• Discrepancy-related exclusions A:same as those above under disorderbut in the context of the primaryreason for the discrepancy.

• Discrepancy-related exclusion B;converse of prerequisite in Discrep-ancy A, (i.e., lack of proper instruc-tion as the primary reason for the

discrepancy).

The case entries also include—wherethe hearing/reviewer officer or courtrelied on it to a primary or secondaryextent—the second prong of eligibility,which is common to all of the IDEA

TEACHING ExcEPTioNAi. CHILDREN I MAY/JUNE 2O]O 63

Itable 1 . Updated Overview ol IDEiA-Publlshad Hearing/Review Officer and Court DecisionsConcerning SLD Eligiblüty _ ^ _ _ _

Outcome Relevance of IDEA Components

Disorder- Need forAbbeviated Case Name Related Discrepancy Discrepancy Special

(Forum and Date) Party Eligible Disorder Exclusion A B Education

Centennial Sch. Dist.(Pa. SEA 2006)

Elk Grove(Cal. SEA 2006)

Jaffess(E.D. Pa. 2006)

High Tech(Cal. SEA 2007)

Hood(9th Cir. 2007)

Jefferson County(Ala. SEA 2007)

S. V. Wissahickon(E.D. Pa. 2008)

M.P.(CD. Cal. 200S)

Victor(Cal. SEA 2008)

Pencader Charter Sch.

(Del. SEA 2008)

W.H.(E.D. Cal. 2009)

Hcuidon Heights(N.J. SEA 2009)

E.M.(N.D. Cal. 2009)

Chase(D. Colo. 2009)

S. Orange(N.J. SEA 2009)

Austin(Tex. SEA 2009)

Nguyen(D.D.C. 2010)

Anchorage(Alaska SEA 2010)

S

S

S

S

S

S

S

P

S

S

s

s

s

s

s

s

s

s

No

No

No

No

No

No

No

Yes

No

No

No*»

No

No

No

No

No

No

No

A**

• T

•

T

• •

• T

• •

• •

T

AA

•

• •

AA

• •

• •

TT

A

• •

TT

• •

TV

• T

AA

AA

• •

•

•

• •

• •

Note. IDELR = Individuáis with Disabilities Law Reporter; SLD = specific learning disability; SEA = state education agency—here, h earing/review officer decision; IDEA = individuals With Disabilities Education Act; S = decision in favor of school district;P = decision in favor of parent.• Secondary factor in ruling against eligibility. • • Primary factor in ruling against eiigibility. AA Primary factor in ruling for eligibility.A Secondary factor in favor of eligibiiity.^The hearing officer accepted the diagnosis from the parents' private evaluator of a visual processing disorder as fulfilling thisdecisionai factor.^ In W.H.. in the context of child find the court alternatively concluded that the student was eligible as other health impairment [OHI),including its effect in terms of written expression. In other cases, e.g.. Hood, the court rejected alternative eligibility under OHI.^'The district acknowledged that the child met the classification criteria, which include discrepancy, but the child's highly gifted statusand his performance on the state NCLB tests contributed to the conclusion that he did not need special education.

64 COUNCIL FOR EXCEPTIONAL CHILDREN

classifications: "by reason thereof,needs special education and relatedservices" (IDEA regulations, §300.7(a)(l)).

From late 2006 until early 2010,there were 18 decisions concerningSLD eligibility; court decisionsaccounted for 41%, a doubling of theproportion present in the previous 90cases (Zirkel. 2006). The overall totalwhen combined with the previouslyreported decisions within the period2005 to 2009 is a moderate declinesince the peak in 2000 to 2004, butstill a higher level compared to the 5-year periods prior to 2000. Moreover,continuing the previous trend, Califor-nia accounted for more of the deci-sions than any other state (n = 7),with Pennsylvania remaining in sec-ond place (n = 3).

As for the outcomes of the mostrecent decisions, the parents prevailedin establishing the child's eligibility inonly one of the 18 cases. In this case[M.P. V. Santa Monica-Malibu UnifiedSchool District, 2008J, the court partial-ly reversed the bearing officer, whobad concluded that the student's diag-nosis of attention deficit hyperactivitydisorder (ADHD) met the SLD disordercriterion and the alternative classifica-tion of other health impairment (OHI)but tbat be was not eligible because be(a) did not meet the severe discrepancycriterion, and (b) did not evidence theneed for special education. Tbe courtdisagreed witb the hearing officer'sconclusion with regard to severe dis-crepancy for two reasons: (a) the courtfound the testimony from the parents'expert witness, a private psychologistspecializing in ADHD, to be cogent,wbereas the bearing officer had dis-credited it; and (b) tbe court similarlygave the opposite weight to the role ofmotivation:

Tbe Court agrees tbat tbe evi-dence shows that [the cbild| iscapable of completing independ-ent school work when motivat-ed, but the evidence also showsthat because of bis ADHD be isnot capable, witbout help, ofbeing motivated. This is tbe verydefinition of a discrepancybeiween ability and achieve-ment, [p. 1102)

Based on the same reasons, thecourt reversed the hearing officer'sconclusion as to vtrhether the studentneeded special education, pointing tothe private expert's testimony, the pur-ported ADHD-motivation linkage, andthe teacher's unsuccessful attempts atclassroom accommodations. Thechild's alternative and equally success-ful claim based on OHI eligibility, espe-cially given the court's reliance onADHD, arguably weakens the weight ofthe SLD ruling.

In contrast, the other cases tendedto follow the pronounced previoustrend of deferring to the district'steachers and other experts and beingrelatively strict about the severe dis-crepancy criterion. In S. v. WissahickonSchool District [2008). the court agreedwith the hearing officer, not the par-ents' expert, that the child, who bad adiagnosis of ADHD, evidenced a lackof motivation (specifically for home-work completion), not a need for spe-cial education. Similarly, in the mostrecent court decision (Nguyen v. Dis-trict of Columbia. 2010), the judgefound the teacher's testimony to out-weigh the parent's private expert, con-cluding as follows:

While there is some evidencetbat H.N. suffers from a learningdisabihty, I cannot say that [theparent] has met her burden. Tbeevidence is weak that H.N. has"a severe discrepancy betweenachievement and intellectualability," and failures in achieve-ment are likely at least partiallydriven by poor attendance.(p. "7)

Finally, an examination of thesedecisions revealed that RTI was con-

the district was no longer required butwas still permitted to use severe dis-crepancy, thereby peripherally referenc-ing RTI and only by implication. InSouth Orange-Maplewood Board ofEducation (2009), the bearing officermentioned that New Jersey hadchanged its law to permit an RTI iden-tification approach but neverthelessupbeld the district's determination thaithe student was not eligible for SLDbased on its permitted primary relianceon tbe severe discrepancy approach. Ifthe hearing officer gave RTI any role, itwould be—mistakenly—her seemingconnection of the district's use of aconiputer program for determiningsevere discrepancy with the "scientifi-cally based" aspect of RTI.

In High Tech Middle Media ArtsSchool (2007), tbe hearing officer con-cluded tbat the student was not eligi-ble as SLD under either of the meth-ods permitted by California law—RTIor severe discrepancy. However, afterdefining RTI as a "method tbat looksat an underachieving child's responseto scientific, research-based interven-tions conducted in tbe classroom." thehearing officer appeared to misapplytbe definition by concluding tbat"tbere is no underachievement by thestudent . . . and no evidence of anyresearch-based interventions [emphasisadded] attempted with Student" (p.*498).

Discussion

The moderate overall decline in pub-lisbed bearing/review officer and courtdecisions specific to SLD eligibility islikely attributable to the recent declin-ing plateau cf IDEA decisions moregenerally (e.g., Zirkel & Gischlar, 2008;

RTI was conspicuous in its absence, [arising] in 2 or 3

of the 18 decisions, and in these few cases—each in favor of

noneligibility—its role was negligible or even mistaken.

spicuous in its absence. RTI only arosein 2 or 3 of tbe 18 decisions, and intbese few cases—eacb in favor ofnoneligibility—its role was negligibleor even mistaken. In W.H. v. ClouisUnified School District (2009), the courtmerely acknowledged that under IDEA,

Zirkel & Scala, in press). Additionallikely contributing factors are the afore-mentioned decline in the proportion ofspecial education students classified asSLD (Rehabilitation Research andTraining Center. 2009) and the damp-ening effect of the pro-district (rend in

TEACHING EXCEPTIONAL CHILDREN | MAY/JUNE 2010 65

case law outcomes for SLD eligibilityfZirkel, 2006).

California's continued predomi-nance in the frequency of SLD casesis not primarily attributable to thestate's litigious reputation; variousother jurisdictions—starting with theDistrict of Columbia and New York-far exceed California in special educa-tion adjudications. When limited to the50 states (thus leaving the District ofColumbia's unusually high total out ofthe comparison), California rankedfourth—after New York. New Jersey,and Pennsylvania—in the number ofadjudicated due process hearingsunder the IDEA for the period 1991 to2005; when the figures were adjustedin relation to the special educationenrollments, it dropped to 20th place(Zirkel & Gischlar. 2008). Instead, othercontributing factors appear more likelyto account for its differential positionin SLD identification cases.

First. California's regulations (CAL.CODE REGS.. 2008) expand on the IDEAdefinition of SLD in various ways,including expressly allowing for alter-native means of determining severediscrepancy "when standardized testsare considered to be Invalid for a spe-cific pupil" (§ 3030(j)(4)(B)) and pro-viding—beyond the standardized testand alternative means—a third alterna-tive of eligibility "provided that theteam documents in a written reportthat the severe discrepancy betweenability and achievement exists as aresult of a disorder in one or more ofthe basic psychological processes" (§3030(j)(4)(C)). Second, California's leg-islation (CAL. EDUC. CODE. 2008)

includes a discrepancy-related exclu-sion thai is a variation from the IDEAlanguage and that has continued tocontribute to litigation (e.g.. Hood u.Enrínitas Union School District, 2007).specifically that "the discrepancy can-not he corrected through other regularor categorical services offered withinthe regular instructional program" (§56337(c)). Third, overlapping with theCalifornia regulation regarding alterna-tive means, the state has been thescene of continuing litigation concern-ing the use of standardized IQ testswith minority children, with the origi-

nal focus being identification of stu-dents with mental retardation (e.g..Larry P. v. Riles, 1986) and with thelatest iteration rejecting extension ofthe ban to SLD identification [CrawfordV. Honig. 1994).

In any event, of more significance isthat the outcomes trend continues tobe strongly in favor of districts' noneli-gibility determinations and that RTIhas not yet surfaced as a decisionalfactor. The predominance of district-friendly decisions is consistent with theprevious pattern of SLD cases (Zirkel.2006). which is not unexpected due tothe role of precedent in judicial deci-sion making and the overall district-deferential trend in the outcomes ofspecial education litigation [e.g..Golden, 2007). The negligible role ofRTi supports this trend, because theprecedents specific to severe discrepan-cy have been so pronounced, hut it isin stark contrast to the similarly pro-nounced trend in the professional liter-ature in favor of replacing severe dis-crepancy with RTL Although profes-sional norms do not equate to legalrequirements, the 2004 amendments toIDEA, the 2006 IDEA regulations, andsubsequent state laws may have sug-gested litigation surfacing, at least atthe hearing officer level by now.

Several reasons might explain therelative absence of RTI in the SLD deci-sions to date. First, the 12 states thathave partially or fully mandated RTIthus far are generally not among themost litigious jurisdictions. Second,the process of not only issuing butalso implementing new laws is farfrom instantaneous. The earliest dead-lines were relatively recent: Connec-ticut's across-the-board deadline andNew Mexico's deadline for Grades Kto 3 was July 1. 2009; Delaware'sdeadline for reading and math wasSeptember 1. 2008, for the elementarygrades and September 1. 2009, forsecondary schools. Third, litigation isalso slow; even the first level, dueprocess hearings, often do not meetthe 45-day time period specified in theIDEA regulations, especially but notentirely because the regulations allowfor extensions at the request of eitherparty (§ 3OO.515(c)) and the new

provision for the resolution process(§ 300.510) effectively extends thedeadline for approximately 30 moredays (300.515(a)). Finally, a suhstaQ-tial segment of initial due process fil-ings end in withdrawal, settlement, ordecisions that are not published inIDELR. Partially mitigating this finalfactor, a search of the more extensivedatabase that the publisher offers, atand as a premium, to electronic sub-scribers revealed a similarly negligiblerole of RTL

The outcomes trend continuesto be strongly in favor of districts'

noneiigibility determinations.

in the only case where RTI hadeven a secondary decisional role—thehearing officer decision in High. TechMiddle Media Arts School (2007)—there was no mention, much less eval-uation, of the specific features or crite-ria of this general approach, such asuniversal screening, multiple tiers, andcontinuous progress monitoring. Onthe other hand, perhaps the hearingofficer's reference to "no evidence ofany research-based interventions" (p.•"498) meant that because the childwas not underachieving—he wasresponding to proper regular educationby "achiev[ingj adequately for thechild's age or to meet State-approvedgrade-level standards in one or more ofthe [eight enumerated] areas" (IDEAregulations, § 300.309(a)(l))—therewas no need to implement RTL Alter-natively, her RTl-related conclusioncould be justified by characterizing itas dicta, surplus language beyond theholding, or specific ruling, of the writ-ten opinion. Her reasoning was merelya hypothetical hased on the rejectedparent claims that IDEA and Californialaw required RTI and prohibited severediscrepancy for determining SLD. Inany event, this limited appearance androle of RTI reinforces its relativeabsence in the most recent case law.

In sum. the previous trends in SLDhearing/review officer and court deci-sions specific to SLD eligibility (Zirkel,2006) have continued in the most

66 COUNCIL FOR EXCEPTIONAL CHILDREN

recent 4 years. Whether RTI changesthe frequency and outcomes of suchdecisions remains an open question,similar to the larger issue of whetherRTI results—as its proponents sug-gest—in a decrease in the proportion ofstudents classified as SLD and in moreaccurate—including less culturally andlinguistically biased—SLD identifica-tion. Of course, such touted effects areconditioned on implementing RTI cor-rectly, which will be at least partiallytested in the coming, but not yet pres-ent, wave of SLD litigation based onRTI.

ReferencesAnchorage Sch. Dist., 54 IDELR í 67

(Alaska SEA 2010).Austin Indep. Sch. Dist., 53 IDELR ^ 310

(Tex. SEA 2009).Bd. of Educ. of Ossining Union Free Sch.

Dist., 46 iDELR t 180 (N.Y. SEA 2006).Brendan K. v. Easton Area Sch. Dist.. 47

IDELR 1 249 [E.D. Pa. 2007).CAI.. CoLiE REGS. lit. 5. §§ 3001 t-f seq.

(2008).

CAL. EDUC. CODE § 56337 (2008).

Centennial Sch. Dist., 46 IDELR ^ 55 (Pa.SEA 2006).

Chase v. Mesa County Sch. Dist. No. 51, 53IDELR 1 72 (D. Colo. 2009).

Chico Unified Sch. Dist., 52 IDELR 1 90

(Cal. SEA 2009).Crawford v. Honig, Í7 F.3d 485 [9th Cir.

1994).Dep't of Educ. v. L.K., 46 IDELR 1 36 (D.

Hawaii 2006).E.M. V. Pajaro Valley Unified Sch. Disi., 53

IDELR ^41 (N.D. Cal. 2009).Elk Grove Unified Sch. Dist., 46 IDELR i 56

(Cal. SEA 2006).Golden. D. [2007, July 24). Schools beat

back demands for special-ed services.Wall Street Journal, p. Al.

Haddon Heights Sch. Dist., 52 IDELR 1 238(N.J. SEA 2009).

High Tech Middle Media Arts Sch., 47

IDELR 1 114 [Cal. SEA 2007).Hood V. Eucinitas Union Sch. Dist.. 486 F.3d

1099 (9lhCir. 2007).Individuals With Disabilities Education Act

regulations, 34 C.F.R. Part 300 (2008).Jaffess V. Council Rock Sch. Disl., 46 IDELR

1246 [E.D. Pa. 2006).Jefferson County Bd. of Educ. 49 IDELR 1

57 [Ala. SEA 2007).Urry P. v. Riles. 793 F.2d 969 (9th Cir.

1986),M.P. V. Santa Monica-Malibu Unified Sch.

Disl.. 633 F Supp. 2d 1089 (CD. Cal.2008).

Nguyen v. Dist. of Columbia, 2010 WL354630 (D.D.C. 2010J.

Pencader Charter Sch., 50 IDELR f 299 (Del.SEA 2008).

Rehabilitation Research and Training Centeron Disability Statistics and Demograph-ics. [2009). Anmiat compendium of dis-ability statistics. Nevii York, NY: HunterCollege. Available at http://neweditionsnet/stats/rrlc/Compendium/sect3-2.htm

S. V. Wissahickon Sch. Dist., 50 IDELR 1216 [E.D. Pa. 2008), affd on othergrounds sub nom. Richard S. u. Wissa-hickon Sch- Disl.. 534 F. App'x 508 [2dCir. 2009).

S. Orange-Maplewood Bd. of Educ, 53IDELR 1 134 [N.J. SEA 2009).

Strock V. Indep. Sch. Dist. No. 281, 49IDELR 1 216 (D. Minn. 2008).

Victor Elementary Sch. Dist., 50 IDELR ^204 (Cal. SEA 2008).

W.H. ex ret. B.H. v. Clovis Unified Sch.Dist., 52 IDELR 1 252 [E.D. Cal. 2009),stay denied. 53 IDELR 1 ¡21 (E.D. Cal.2009).

Witiiamson County Bd. of Educ v. C.K.. 52IDELR 1 40 [M.D. Tenn. 2009).

Spcnlic'lDisabili(\

l.ilni;il](iii

Zirkel, P. A. [2006). The legal meaning ofspecific learning disability for special edu-cation eligibility. Arlington, VA: Councilfor Exceptional Children.

Zirkel, P. A., & Cischlar, K. [2008). Dueprocess hearings under the IDEA: A lon-gitudinal frequency analysis. Journal ofSpecial Education Leadership. 21, 22-31.

Zirke!. P. A.. & Scala. G. (in press). Dueprocess hearing systems under (he IDEA:A state-by-state survey. Journal of Dis-ability Pb/icy Studies.

Zirkel, P. A., & Thomas. L. [2010). Statelaws for RTI: An updated snapshot.TEACHING Exceptional Children, 42(3),56-63.

Perry A. Zirkel, University Professor ofEducation and Law, Lehigh University.Bethlehem. Pennsylvania.

TEACHING Exceptional Children, Vol. 42.No. 5, pp. 62-67.

Copyright 2010 CEC.

j torExceptionalChildren

The Legal Meaningof Specific LearningDisability for SpecialEducation EligibilityPerry A. Zirkel

Students wiih specific learning disability (SLD) account for half of all thestudents deemed eligible under the Individuals with Disabilities EducationAct [IDEA). The 2004 Amendments to the Act and its currently proposedregulations include significant changes with regard to the severe discrepancyand response to intervention [RTI) criteria for specific learning disability[SLD) eligibility. In the current atmosphere of professional ferment and legaladvocacy, this monograph provides what is not available in the literature todate—a thorough and objective synthesis of the various applicable sourcesof law, including the various pertinent U.S. Department of Education policyinterpretations and the more than 80 published hearing/review officer andcourt decisions under the IDEA.

2006 120 pages ISBN 0-86586-425-XffP5775 $22.95 / CEC Members $16.95

To order call 1-800 224-6830or visit us online at www.cec.sped.org

TEACHING EXCEPTIONAL CHILDREN | MAY/JUNE 2010 67

Copyright of Teaching Exceptional Children is the property of Council for Exceptional Children and its content

may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express

written permission. However, users may print, download, or email articles for individual use.