LEGAL BRIEF

Three Year Delay in Evaluation of Dyslexic Student May Result in Liability for School District

Hans Graff, Senior Attorney

     In a preliminary ruling, a U.S. District Court refused to dismiss 504/ADA claims against Leander Independent School District (LISD) based upon allegations the district failed to timely evaluate a student for special education for three years, during which it continued Intervention Assistance Team (IAT) and 504 interventions. The standard for 504/ADA liability is “bad faith or gross misjudgment,” and the court found gross misjudgment in LISD’s use of Response to Intervention (RTI) to delay Section 504 testing until 2018, and special education testing until 2020. The court also found that Plaintiffs plausibly alleged gross misjudgment based on LISD staff repeatedly telling Plaintiffs that “dyslexia is separate from special education” and “dyslexia is not under special education,…just § 504.”

     By way of underlying facts of the case, the parent referred the child for a special education evaluation in first grade, but the principal allegedly convinced the parent to withdraw the referral in order to give IAT more time. The student continued to receive IAT during first grade. In the fall of second grade, the parent requested a dyslexia evaluation. LISD evaluated for dyslexia, identified her as a student with dyslexia and developed a 504 plan, however, at the end of her spring semester, she was still performing below grade level.

     In third grade, the parent requested a special education evaluation (FIE) to determine eligibility for special education. The FIE determined that the student had an Other Health Impairment due to ADHD, which qualified her for special education and related services. The FIE also noted her dyslexia diagnosis but did not find that she qualified as a student with anxiety, emotional disturbance, or a Specific Learning Disability. In February of 2020, LISD held an ARD to develop an IEP. Shortly after, LISD instruction moved online due to COVID-19. The parent requested a due process hearing. 

     The Special Education Hearing Officer found LISD had violated its child-find duty by delaying a special education evaluation from February 2019 to January 2020, but also found the IEP developed provided a FAPE. The parent appealed to U.S. District Court for the Western District of Texas and also added 504/ADA disability discrimination claims to the lawsuit, and LISD moved to dismiss the claims. 

     In a preliminary ruling the Court noted that order to prevail on a 504/ADA claim, the plaintiff must prove intentional discrimination, which exists where “the school’s conduct depart[s] grossly from accepted standards among educational professionals.” The Court found Plaintiff’s allegations sufficient to plausibly allege gross misjudgment in LISD’s use of RTI to delay Section 504 testing until 2018, and special education testing until 2020.

     While it was reasonable for a school district to attempt interventions like 504 services and RTI before evaluating a student for special education, those interventions could not be used as a substitute for special education for a student for whom those interventions were not working.

     The Court also found that Plaintiff’s plausibly alleged gross misjudgment based on LISD staff repeatedly telling Plaintiffs that “dyslexia is separate from special education” and “dyslexia is not under special education,… just § 504.” OSEP “has clarified that there is nothing in IDEA that would prohibit” dyslexia as a qualifying disability under IDEA, and “[a] student with dyslexia or a related disorder does not need to present with a second potentially disabling condition to be considered for eligibility under the IDEA.” P.W., J.W., and A.W., v. Leander Independent School District, 83 IDELR 71 (W.D. Tex. 2023)

     It should be noted that the Court’s ruling is a preliminary ruling and is not a final outcome in the case. Additionally, some of the issues underlying the case, such as the distinction in state law between standard protocol dyslexia instruction and specialized instruction will be eliminated with the passage of HD 3928, which defines dyslexia as a specific learning disability and requires evaluation under IDEA, unless the parent refuses to consent. Should any questions arise regarding this case or other special education concerns, please contact Leon | Alcala.