J.D. has dyslexia, a language-based learning disability. Dyslexia is the most common cause of reading, writing and spelling difficulties. In fact, Current studies suggest that 15-20% of the population has a reading disability. Of those, 85% have dyslexia.” (see FAQs about Dyslexia at the end of this article)
Dyslexia is listed as a “specific learning disability” in the Individuals with Disabilities Education Act (20 U.S.C. 1401(30)) and the federal special education regulations. (34 CFR 300.8(c)(10)). (See pages 55 and 194 in Wrightslaw: Special Education Law, 2nd Edition for these definitions).
Despite the fact that dyslexia is a specific learning disability, some school districts claim that they are not required to provide these students with a special education program that meets their unique needs.
In Jarron Draper v. Atlanta Independent School System (N.D. GA 2007), the Court found that the Atlanta Public School (APS) staff misdiagnosed J.D. as having an "intellectual disability," refused to evaluate him when his family requested an evaluation, and failed to re-evaluate him after three years, as required by law.
After an independent evaluator determined that J.D. has dyslexia, the school failed to provide him with an appropriate special education program. After a dozen years in Atlanta Public Schools, J.D.'s reading, spelling and math skills remained at the 2nd to 3rd grade level.
At the special education due process hearing, school officials who were responsible for ensuring that J.D. received a free appropriate public education (FAPE) testified that the IEPs prepared for J.D. were "adequate" and provided him with a "basic floor of opportunity."
As a remedy for the school system's failure to provide J.D. with a free, appropriate public education, the Court awarded him four years of compensatory education at a private special education school or until he graduates with a regular high school diploma. This will improve the odds that J.D. will graduate from high school, attend college, and live an independent, productive life.
J.D.'s Efforts to Acquire a Program that Would Teach Him to Read
J.D.’s family battled with school officials for years before requesting a special education due process hearing. They filed a complaint with the Georgia Department of Education. The Georgia Department of Education agreed that APS failed to provide J.D. with a free appropriate education, but did nothing to remedy these failures or ensure that J.D.’s rights were protected.
However, Mr. Wyner found that J.D.’s aunt, Denice Morgan, was very knowledgeable about the case, and encouraged Ms. Morgan to represent J.D. in the due process hearing.
The decision in Jarron Draper v. Atlanta Independent School District includes this background information.
"On February 24, 1998, when J.D. was in the 4th grade, his mother gave her consent for a complete comprehensive evaluation of him. APS administered the tests for its evaluation on June 1, 1998. Based on this evaluation, the school psychologist determined that J.D. had a full scale I.Q. of 63."
"On January 25, 1999, J.D.'s student support eligibility team met to assess the June evaluation results and services that J.D. might need. The team placed J.D. in the most restrictive educational environment available, a self-contained special education classroom for children with mild intellectual disabilities ("MID"). For the next two years, J.D. continued in the MID program at Usher Middle School."
"In early 2003, J.D.'s family insisted that APS evaluate him for the first time since 1998 . . . The school psychologist reported that J.D. was performing at the 2nd or 3rd grade level despite being in 9th grade . . . significant variations of his test scores showed that the I.Q. score may not be an accurate reflection of J.D.'s true ability."
"A different school psychologist performed an additional psychological evaluation on J.D.. . . The July 2003 evaluation confirmed that J.D. was not MID but had a specific learning disability. The tests showed that J.D. had a full scale I.Q. of 82, which was in the low average range of intelligence . . . The tests also showed that J.D. was at a 3rd grade reading level, 2nd grade spelling level, and 3rd grade arithmetic level. At the time of the testing, J.D. was in the 10th grade MID class at Mays High School."
"In August 2003, J.D.'s family requested private school and one-on-one tutoring in order to help J.D. close the achievement gap in his studies. No action was taken on these requests.”
"J.D.'s family had filed a complaint with the Georgia State Department of Education. On January 27, 2004, a state hearing officer found that APS was not in compliance with state and federal requirements for providing J.D. with a FAPE.”
At an IEP meeting in May 2004, "J.D.'s family requested reading services through either the SLC (Sylvan Learning Center) or the Lindamood-Bell program. APS told the family once again that they would have to file a formal complaint if they wanted to pursue the matter."
"After continued requests from J.D.'s family, APS referred J.D. to Dr. Judy Wolman for an independent psychological evaluation . . . Dr. Wolman concluded that J.D. suffered from a specific learning disability consistent with dyslexia. She also made recommendations about the types of services he needed in order to bring his skills closer to his potential so that he could perform independently as an adult."
Due Process Hearing: November 2005
When the Due Process Hearing was held in November 2005, J.D. was 18 years old and in the 11th grade. He was represented by his aunt, Denice Morgan.
The Administrative Law Judge found that:
- APS failed to provide a FAPE to J.D. for the 2002-03, 2003-04, and 2004-05 school years
- APS had failed to provide J.D. with the key to his education by properly teaching him to read since 1998 when he was in the 3rd grade
- APS misdiagnosed J.D. and labeled him with mental retardation as early as the 3rd grade
- APS made no effort to evaluate J.D. for five years, contrary to clearly established law.
According the ALJ's decision, "Although J.D. exhibited classic signs of dyslexia at a very early age, the ALJ found that APS was still incapable of making a proper diagnosis and it was only due to the continued insistence of J.D.'s family for more testing after March 2003 that led to a proper diagnosis of a learning disability in July 2003."
Air of Disdain and Tone of Contempt
The attitudes that J.D. and his family encountered may be familiar to other parents who have disputes with their school districts about their children's special educational needs. After a three-day due process hearing, the Administrative Law Judge wrote:
"The written transcript of the hearing in this case cannot possibly capture the air of disdain and tone of contempt that the APS officials showed toward J.D.'s efforts to acquire a program of reading instruction that will give him a fighting chance to read . . .
"J.D.'s testimony regarding the school system's treatment of him was highly credible . . . A lesser spirit would have been crushed long ago." ALJ Order at 31 n.6.
Denice Morgan represented J.D. and won, although APS was represented by an in-house attorney. After J.D. and APS challenged portions of the decision, the case was appealed to federal court.
U. S. District Court: March 2007
In the decision issued on March 20, 2007, the Court addressed four issues:
- Statute of Limitations
- Burden of Proof
- ALJ's Findings of Fact
- Whether APS Provided J.D. with a FAPE
Statute of Limitations
“Both J.D. and APS agree that the relevant statute of limitations applicable to IDEA claims is two years. The parties dispute when J.D.'s IDEA claims accrued . . . J.D. argues that APS failed to provide him with appropriate remediation once his family discovered the error in 2003. These claims are clearly within the two-year statute of limitations.”
Burden of Proof
“APS argues that the ALJ erred by placing the burden of proof on it, and that instead, J.D. bore the burden of proof at the administrative level . . . The Court concludes that the ALJ did not err because although he found that APS bore the burden of proof, he alternatively held that even if J.D. bore the burden of proof, as APS now contends, then J.D. met his burden.”
Failure to Provide FAPE
"Based upon a preponderance of the evidence, the Court concludes that APS failed to provide J.D. with a FAPE for the 2002-03,2003-04, and 2004-05 school years. APS failed to timely assess J.D. in the 2002-03 school year making it impossible for APS to design a proper IEP to meet J.D.'s unique needs. APS insisted on using the Lexia reading program even though J.D. was not making progress with the program. Finally, APS failed to design J.D.'s IEPs for the 2003-04 and 2004-05 school years to meet his individualized needs by failing to review and assess whether he had mastered his goals and objectives from the previous year and by failing to revise J.D.'s IEPs in certain areas from one year to the next."
Four Years of Compensatory Education at Private Special Education School
"The Court may award educational services to be provided prospectively to compensate for a past deficient program . . . "Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student …"
"Appropriate relief is designed to ensure that the student is appropriately educated within the meaning of the IDEA and to provide the educational benefits the school district should have supplied in the first place . . . Compensatory awards should compensate, and this means that they must do more than provide ‘some benefit’ as required by ordinary IEPs . . . compensatory education is necessary to preserve a handicapped child's right to a free education."
“The Court concludes that The Cottage School can address J.D.'s individualized needs and provide him with the services he needs to go forward to become an independent, capable, and successful adult."
“The ALJ limited J.D.'s award of compensatory services until he receives a regular high school diploma or until June 2009, whichever is earlier . . . the Court amends the ALJ's Option 2 for J.D. to receive compensatory services until he receives a regular high school diploma or until June of 2011, whichever is earlier."
The Attorneys: David Monde, Steven Wyner & Marcy Tiffany
J.D. and his family were represented by David Monde of Jones Day in Atlanta, GA and by Steven Wyner and Marcie Tiffany of Wyner and Tiffany, Torrance, CA. (Contact Information is at the end of this article)
David M. Monde is a commercial litigator and has a son with cerebral palsy. He was selected as one of Atlanta's "Super Lawyers" by Atlanta Magazine in 2006 and as one of Georgia's "Super Lawyers" in 2007.
"I know how frustrated parents get dealing with public systems about their special needs children," Monde said. Judge Shoob's order "shows if parents fight hard enough, the courts will insist that school systems honor their obligation under the law."
Steven Wyner and Marcy Tiffany were partners at Wyner & Tiffany, a firm that specializes in plaintiff's special education law and civil rights litigation. They were selected as “Southern California Super Lawyers” in 2007.
Marcy Tiffany became involved in special education law because the school district was failing to meet the needs of her gifted, but learning disabled, child.
In response to the acute shortage of attorneys willing to represent low-income families with disabled children, the Atlanta office of Jones Day partnered with two local legal services organizations, the Atlanta Volunteer Lawyers Foundation and Atlanta Legal Aid to create the Jones Day Special Education Advocacy Project.
Attorneys from all practice areas represent families to ensure that schools provide the "free and appropriate public education" to which each child is entitled to receive under federal law. With the assistance of experts who understand the child's condition, attorneys advocate for the child in meetings with school officials and promote development of an Individualized Education Program that satisfy the requirements of federal law.
In October 2006, the Special Education Advocacy Project was selected for the William B. Spann, Jr. Award by the State Bar of Georgia, an award given to a local bar association or community organization that satisfies previously unmet needs or provides services to underserved segments of society. Links to news articles about the Jarron Draper case:
Reading at Wrightslaw - Includes information about learning to read, teaching children to read and write, free publications, service providers who use structured, multisensory, alphabetic techniques. and where to receive training in Multisensory Structured Language (MSL) approaches.