1. 1 Grades and Test Scores*: Do They Prove the Dyslexic Student is Receiving An Appropriate Education? *“But, the student has such good grades...” Defense Lisa Krizman Lisa Krizman Esq., LLC Cherry Hill, NJ March 2014

2. 2 The Rowley case “When that "mainstreaming" preference of the Act [Individuals with Disabilities Education Act “IDEA”] has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit.." FN 25 We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education."25 Hendrick Hudson Cent. School Dist. Bd. of Educ. V. Rowley, 458 U.S. 176, 203, n. 25 (1982).

3. 3 Students with Dyslexia and “Good Grades” Dyslexic students can be very high functioning cognitively and even gifted. That does not mean that. They do not have a disability; That the disability does not adversely affect their education; That they are not entitled to special education and related services; and That the IEP they are receiving is appropriate.

4. 4 U.S. Department Education Guidelines for gifted students with dyslexia They are covered under the Individuals with Disbilities with Education Act (“IDEA”) just like any other student with a qualifying disability. The U.S. Department of Education says: “The IDEA is silent regarding “twice exceptional” or “gifted” students. …It remains the Department’s position that students who have high cognition, have disabilities and require special education and related services are protected under the IDEA and its implementing regulations....”

5. 5 Gifted students with Dyslexia continued “With regards to students with SLD,…the IDEA contemplates that there will be some students with high cognition and need special education and related services: – Discrepancy models are not essential for identifying children with SLD who are gifted. However, the regulations clearly allow discrepancies in achievement domains, typical of children with SLD who are gifted, to be used to identify children with SLD..; – No assessment, in isolation, is sufficient to indicate that a child has SLD. Including reading fluency in the list of areas to be considered when determining whether a child has an SLD makes it more likely that a child who is gifted and has an SLD would be identified. Moreover, it has been the Department’s long-standing position that, in generally, it would be appropriate for the evaluation team to consider information about outside or extra learning support provided to the child to determine whether the child’s current academic achievement reflects the service augmentation, and not what the child’s achievement would be without such help.” “Dear Colleague Letter,” Alexa Posny, Acting Director, Office of Special Education Programs, U.S. Department of Education, January 13, 2010

6. 6 F.C. v Palmyra Bd. of Educ. 1997 N.J. AGEN LEXIS 507 Gifted student with ADHD with Section 504 plan demonstrated poor work habits, incomplete work assignments, depression, and difficulties in reading and written language. Among other evidence, he received a “C” in language arts, which the District felt did not demonstrate “a diminished standard of performance” and refused one on one teaching in language arts. A private expert opined that based on his gifted ability, the student should have been scoring at the top one % of his class. The ALJ ruled: – “ It is clear from the foregoing discussion that respondent's Section 504 accommodation plan for petitioner was deficient. Since his intellect is superior, petitioner probably could pass sufficient courses to be graduated from high school without any special services or accommodations, if the emotional strain of such neglect were not paralyzing. However, he is capable of achieving so much more with the skills remediation and psychological support he needs. If the protections of Section 504 of the Rehabilitation Act of 1973 and 34 C.F.R. 104.33 are to have any meaning for a qualified handicapped person of superior intelligence, then petitioner must be entitled to implementation of a Section 504 accommodation plan which allows him to achieve educational success reasonably commensurate with his ability. 34 C.F.R. 104.33 Tuition reimbursement awarded for Hill Top School, PA.

7. 7 N.E. o/b/o J.E. v. Ridgewood Bd. of Educ., 2000 N.J. Agen Lexis 1088 Dispute over eligibility for special education services under “SLD” based on dyslexia. District claimed that 17 year old student with dyslexia whose IQ score placed her in superior range but whose academic performance was in the average range means that her problems do not “rise to the level that qualified her for special education. “ The teachers did not notice any problems with student’s reading. The ALJ ruled it is a “fundamental error” that a student who is performing at or close to grade level does not need special education services. ALJ found a severe discrepancy between current achievement and intellectual ability is attributable to her SLD disorder. The student’s extreme difficulty in reading, despite the excellent grades, despite the fact that her reading tested as within two years or less of grade level, reflects an adverse impact of her educational performance and found student eligible for an IEP under SLD. “Rather, it is readily foreseeable that this formulation [discrepancy based on grade levels] will consistently deny eligibility to very intelligent children who are achieving at or near grade level despite a disability and are otherwise qualified for special education. “ “Under the circumstances, the conclusion is warranted that respondent's contention that J.E. should be denied eligibility because she is receiving meaningful educational benefit and passing from grade to grade without special education is without merit. “

8. 8 Further, Grades in Special Education Curriculum Are Not Entitled to the Same Weight as Grades in Regular Classroom Rowley involved a child who was performing above average in the regular classroom of a public school. But, where the child is being educated in modified curriculum, the grades are less significant. Dyslexic 9 th grader child who received grades of all 90’s in self contained class found not to have received an appropriate education. The ALJ ruled that grades in the self contained class do not prove “mastery” of the regular curriculum, and are not dispositive proof of FAPE being received. Other experts demonstrated lack of grade level progress, and WIAT and Woodcock-Johnson scores showed decreasing scores. ALJ found credible testimony that “standardized tests were a better measure of academic progress than grades,which can be subjective.” The Third Circuit reinstated tuition reimbursement to parents for unilateral placement at The Banyan School. “Overall, we think that it is clear that a court should not place conclusive significance on special education classroom scores, a conclusion that we believe is reinforced by the circumstance that, as here, there may be a disconnect between the school’s assessment of a student in a a special education setting and his achievements in that setting and the student’s achievements in standardized testing. Where there is such a disconnect we think that there should be an especially close examination of the appropriateness of the student’s education.” D.S. v. Bayonne Bd. of Educ., 602 F. 3d 553 (3 rd Cir. 2010).

9. 9 Standardized Tests May Also Have Varying Weight Where 12 year old dyslexic student tested proficient in NJ ASK tests (questions were read aloud to student), and regular class grades were high but found unreliable, and where other objective test scores showed significant deficiencies, court upheld tuition reimbursement for private placement. The Court ruled that NJ ASK test results are a factor but not dispositive in determining the appropriateness of an IEP, citing to M.P. v. South Brunswick Board of Education, 2008 U.S. Dist. Lexis 103520 (D.N.J. 2008). J.M v. Morris Sch. Dist Bd. of Educ., 2011 US Dist LEXIS 148670 (D.N.J. not published) Standardized test scores may not accurately reflect a student’s reading difficulty because the length of reading is relatively short compared to a book. Despite student’s achievement of average scores on standardized tests, student found to be eligible for special education services. N.E. o/b/o J.E. v. Ridgewood Bd. of Educ, 2000 N.J. AGEN Lexis 1088

10. 10 Rowley is still valid Court affirmed declassification of dyslexic student because her reading fluency was at grade level and she received A’s and B’s. Her weakness in oral reading fluency was not found to adversely impact her education to the extent she needed special education. The IEP had lacked goals specific to oral reading fluency; however, because the student was in a regular classroom, her grades and advancement from grade to grade demonstrated sufficient progress, even without specific IEP goals. H.M. v. Haddon Heights Bd. of Educ., 822 F. Supp. 2d 439 (D.N.J. 2011).

11. 11 THANK YOU! Lisa Krizman Lisa Krizman Esq., LLC Cherry Hill, NJ www.krizmanlaw.com lisakrizman@krizmanlaw.com (856) 751-4131 DISCLAIMER This material is being provided for educational purposes only and should not be used as a substitute for advice from an attorney in your state. © Lisa Krizman Esq., LLC 2014