Big Win in Dyslexia Case! Court Orders District to
Reimburse Parents $456,990.60
by Peter W.D. Wright & Pamela Wright
Wrightslaw.com
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On October 12, 2021, the U.S. District Court of Nevada issued an exceptional decision for a child with dyslexia in O.R. v. Clark County Schools.
O.R. is a child with dyslexia and other learning disabilities. Fifteen to twenty percent of school children have dyslexia. Dyslexia is the most common cause of reading, writing and spelling difficulties. [What is Dyslexia?]
Although dyslexia makes learning to read more difficult, children with dyslexia can learn to read if they have the right instruction. Parents of children with dyslexia who seek the "right instruction" in public school programs are often stunned when they encounter major obstacles to their reasonable requests that the school teach their children to read.
Most teachers, including special education teachers, are not trained to teach children with dyslexia to read. The programs selected for use by many elementary schools are not effective or research-based.
This case is noteworthy in several respects. The Court held that:
- the IEP team failed to consider evaluations provided by the parents and failed to meaningfully consider the parents' concerns for enhancing their child's education;
- the IEP team ignored the findings and recommendations of the professional evaluations of O.R.;
- because O.R. needs were complex, she required a methodology that was research-based, systemic, cumulative, and rigorously implemented;
- the district's response to the parents' requests for a program that met their child's needs was "trust us to provide her with what she needs";
- the Court ordered the Clark County School District to reimburse the parents $456,990.60.
Meet O.R.
O.R. has been diagnosed with learning disabilities including Executive Function Deficit; Attention Deficit Hyperactivity Disorder; Developmental Dyslexia; Developmental Mathematics Disorder; a Nonverbal Learning Disorder; Generalized Anxiety Disorder; Dysthymic Disorder; and Mixed Receptive-Expressive Language Disorder. She also has medical conditions that affect her ability to learn.
In 2007, O.R. was evaluated by a school multi-disciplinary team. The team determined that O.R. was eligible for special education and related services under the category of "Other Health Impairment." The team recommended that O.R. be placed in the district’s preschool self-contained program. She attended the district program until her parents enrolled her in a private school.
In 2009 and 2013, O.R.'s parents had her evaluated privately. The 2013 evaluation indicated that O.R.required a specific teaching methodology to receive an appropriate education.
In January 2014, O.R.'s parents provided two private evaluations to the district and requested that the district re-evaluate their daughter for eligibility for special education in a district program.
In March 2014, the parents attended an eligibility / IEP meeting. The team concluded that O.R. was eligible for services under the "Other Health Impairment" category but claimed it did not have enough data to determine if she was eligible under the "Specific Learning Disabilities" category.
In June 2014, the school district proposed an IEP. The parents disagreed with the district's IEP because it "failed to take into account and address O.R.'s needs as identified in her most recent evaluations and did not offer a free appropriate education."
In August 2015, a neuropsychologist evaluated O.R and recommended that she receive an Orton-Gillingham approach for all subjects, not just reading.
In May 2016, O.R.'s parents met with the district's team again to develop an IEP to meet their child's unique needs. The district proposed an IEP that "failed to take into account and address O.R.'s needs as identified in her most recent evaluations and did not offer a free, appropriate public education."
In May 26, 2016, O.R.'s parents requested a Due Process Hearing to challenge the appropriateness of the May 27, 2014 IEP.
In September 2016, the parents amended their due process complaint to challenge the appropriateness of the June 8, 2016 IEP.
On November 16, 2016, an Independent Hearing Officer (IHO) issued a decision and held that the district did not provide O.R. with a free appropriate education. The IHO found that the district's witnesses were not credible. Two witnesses offered inconsistent testimony . . . school employees did not consider evaluations provided by the parents."
The IHO concluded that "district witnesses did not demonstrate a working knowledge of Orton-Gillingham, the methodology recommended for O.R." Based on her assessment of the witnesses, the IHO found that "the district predetermined that under no circumstances would they include a methodology in her IEP."
The IHO held that the 2014 and 2016 IEPs did not provide O.R. with a FAPE. The school district appealed. On March 8, 2017, a State Review Officer (SRO) held that the IHO erred and reversed the IHO's decision.
Parents Appeal to U.S. District Court
On June 6, 2017, the parents appealed "the decision of the SRO and asserted violations of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act" to the U.S. District Court of Nevada.
Download the
Complaint in Rogich v. Clark County
Evidentiary Hearing: Expert Testimony about Orton-Gillingham Methodology
The Court ordered expert testimony about Orton-Gillingham methodology. The parents' attorney and the school district's attorney selected an expert so the judge could hear evidence from two experts.
The evidentiary hearing was held on February 12, 2019. Drs. Kelli Sandman-Hurley and Catherine M. Scott testified before the Court and answered questions in several areas.
1. Orton-Gillingham is a research-based and validated methodology for young individuals or children who have the developmental issues that were identified in the evaluations of this young woman in this case.
2. The prevalence and acceptance of this methodology or similar methodologies in terms of their use by other districts and other schools throughout the region.
3. The efficacy of the Orton-Gillingham methodology or similar methodologies for children who have challenges like the one that this young woman has.
4. How teachers are trained or not in this methodology in terms of the amount of time that's required for a teacher to be trained in the Orton-Gillingham methodology or similar methodology and related costs associated with that.
Court issues Decision: District Violated IDEA, Section 504 and Title II of the ADA (October 12, 2021)
Legal Standard: IDEA Violation
On October 12, 2021, U.S. District Judge Richard F. Boulware II issued a decision.
"The Individuals with Disabilities Education Act ("IDEA") guarantees children with disabilities a free appropriate public education ("FAPE"). 20 U.S.C. Section 1400(d)(1)(A)."
"A FAPE must be tailored to the unique needs of the handicapped child by means of an individualized education program (IEP)."
"When formulating an IEP, a school district must comply procedurally and substantively with the IDEA, so the process is informed not only by the expertise of school officials, but also by the input of the child's parents or guardians."
"While the parties make several arguments, the 'primary dispute at the center of this action is whether the IEP team was required to include the Orton-Gillingham methodology, or a similar program, in O.R.'s IEP. Plaintiffs contend that O.R.'s 'unique needs' require the inclusion of a program, while Defendant counters that the underlying components were included in the IEP, but that the IEP team was not obligated to name a specific methodology."
"The Court must determine first whether 'the State complied with the procedures set forth in the Act' and, second, whether 'the individualized educational program . . . was reasonably calculated to enable the child to receive educational benefits."
The Court held that when reviewing state administrative decisions, courts must give due weight to judgments of education policy. "Therefore, the IDEA does not empower courts to substitute their own notions of sound educational policy for those of the school authorities which they review. How much deference to give state educational authorities . . . is a matter for the discretion of the courts . . . " M.C., by and through M.N. v. Antelope Valley Union High School District, 858 F.3d 1189, 1194 (9th Cir. 2017)
The School District Violated the IDEA
Procedural Violations of IDEA
The IDEA requires the IEP Team to "review existing evaluation data on the child, including . . . Evaluations and information provided by the parents of the child . . . IDEA also requires the IEP team is also required to "consider . . . the concerns of the parents for enhancing the education of their child . . ."
"O.R.'s parents had presented compelling professional evidence that was unrefuted or challenged by the District which established that O.R required a teaching methodology . . . The District failed to provide any response to the specific needs of O.R. except to essentially say to the parents -- 'Trust us to provide her with what she needs.' This is not sufficient."
"The professional evaluations made clear that whatever methodology used must be one directed to O.R.'s specific deficits and must be consistently and faithfully implemented.
O.R. cannot learn without a consistent and structured approach to multi-sensory instruction throughout the school day. Failing to identify a methodology that would ensure that the same approach is consistently utilized throughout the day by all of O.R.'s instructors necessarily means that O.R. will not have the opportunity to learn as she needs to."
The judge took evidence about the cost to train teachers: "Training in the Orton-Gillingham method requires one week of training at a cost of between $1,500 and $2,000, after which the trainee must complete a practicum of 36-60 hours of supervised one-on-one time with a student at an additional cost, that may be completed up to a year after the training."
The Judge held "this training and the associated methodologies would have benefited many other students, including those with dyslexia, and could have been easily disseminated throughout the District using 'train the trainer' sessions."
The parents had offered to pay for Orton-Gillingham teacher training. The district refused their offer.
"The District failed to consider the concerns of the parents" by refusing to discuss with them during development of the IEP the types of programming provided by the District that had the capacity to address O.R.'s unique needs."
"The District ignored the central findings and recommendations of the professional evaluations of O.R. The evaluations did not only call for multi-sensory instruction. Rather, they stressed the importance of the delivery mechanism by which O.R. would receive that instruction."
"It is evident from the undisputed evaluations, which stress the importance of 'methodology' and the use of "research-based learning programs," that the IEP team failed to consider the evaluations in any meaningful way."
Substantive Violations of IDEA
The Court also found that the District substantively violated the IDEA. Substantively, "[i]n order for [a child] to have received a FAPE, the IEP must have (1) addressed [their] unique needs, (2) provided adequate support services so [that they] can take advantage of the educational opportunities, and (3) [been] in accord with the individualized education program."
"O.R. required a specific methodology in order to receive a FAPE. This is not to say that she necessarily required the Orton-Gillingham methodology, but she did require an equivalent methodology that was a) research-based, b) systemic, c) cumulative, and d) rigorously implemented."
"It is evident that these procedural and substantive violations resulted in the denial of a FAPE. Not only did they 'seriously infringe the parents' opportunity to participate in the IEP formulation process,' but they also resulted in the loss of educational opportunity for O.R."
"O.R. cannot learn without a consistent and structured approach to multi-sensory instruction throughout the school day. Failing to identify a methodology that would ensure that the same approach is consistently utilized throughout the day by all of O.R.'s instructors necessarily means that O.R. will not have the opportunity to learn."
Parents Established Liability Under Section 504 and Title II of the ADA: Entitled to Compensatory Damages
The Court also ruled on discrimination claims under Sec 504 and Title II of the ADA.
The Court held that ". . . O.R. needed a methodology in order to 'enjoy meaningful access' to a public school education . . . the school's refusal to investigate the feasibility of providing Orton-Gillingham in light of explicit notice that O.R. required it amounted to deliberate indifference."
"The Court finds that the record establishes that failure to offer the Orton-Gillingham methodology or an equivalent methodology was unreasonable."
"O.R. required 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."
"Although Title II is different from Section 504 in several respects . . . the elements of a valid Title II claim do not differ in any material sense from those of a valid section 504 claim and the two may be addressed together."
"Plaintiffs have satisfied both the 'deliberate indifference' standard for the purposes of establishing liability under Section 504 and the 'motivating factor' requirement for establishing liability under Title II. As such, Plaintiffs are entitled to compensatory damages to cover the costs of tuition and travel expenses for O.R.'s enrollment at Eagle Hill School."
"This Court further grants Plaintiffs' request for reimbursement for the Orton-Gillingham trainings and other methodological trainings that Plaintiffs had to provide to teachers at schools outside of the District."
"Defendant shall reimburse Plaintiffs in the sum of $456,990.60"
Imagine how many teachers could be trained in the Orton-Gillingham method, and how many children would have benefitted from having trained teachers, for half a million dollars.
Wrightslaw Note: This sum does not include the requirement that the school reimburse the parents' attorneys fees as prevailing parties.
More articles about special education law and legal decisions.
More articles about Reading - Teaching Children to Read, Learning to Read, Writing
Effective Reading Instruction for Students with Dyslexia (English)
Effective Reading Instruction for Students with Dyslexia (Spanish)
Download The Dyslexia Handbook: What Every Family Should Know - How to recognize signs and symptoms of dyslexia in speaking, reading and writing; includes information on assessments, effective teaching approaches, self-advocacy ideas, and resources that will be useful through the child's life.
