Student A v. Berkeley Unified School District proposed settlement

Should a local education agency be responsible for providing appropriate services to students with reading disabilities?

In the United States District Court, Northern District of California, four children (through their parents) sued the Berkeley Unified School District, its superintendent, individual directors of the board of education, and the Board of Education of the Berkeley Unified School District. The plaintifs, on their own behalf and on the behalf of similar students (i.e., this is a class action), seek "INJUNCTIVE and DECLARATORY RELIEF for VIOLATIONS of the INDIVIDUALS WITH DISABILITIES EDUCATION ACT, 20 U.S.C. §§ 1400, Et Seq.; SECTION 504 of the REHABILITATION ACT of 1973, 29 U.S.C. § 794; AMERICANS WITH DISABILITIES ACT, 42 U.S.C. §§ 12131 Et Seq.; CALIFORNIA EDUCATION CODE §§ 56000 Et Seq."

The case is more simply known as "Student A v. Berkeley Unified School District." In essence, the suit alleged that the Berkeley Unified School District discriminated against students with reading disabilities and has failed to provide them with a free and appropriate public education. Berkeley Unified School District maintains that it has done nothing wrong. There is a proposed settlement in which the local education agency agreed to take actions the alleviate the complaint.

The suit, with the support of the Disability Rights, Education and Defense Fund, began in May of 2017 and the proposed settlement was made in July 2021. Objections to the settlement must be postmarked on or before 1 October 2021.

The complaint alleges that Berkeley Unified Schools violated federal and state laws and regulations in multiple ways. Here are brief descriptions of those violations. Each item is a quotation from pages 24-30 of the complaint:

  • Failure to have in effect legally compliant policies, procedures, and programs required with respect to students with reading disorders.

  • Failure to satisfy Child Find obligations with respect to students with reading disorders.

  • Failure to provide procedural safeguards to students with disabilities and their parents.

  • Failure to use an appropriate RTI framework for early identification and intervention for students with suspected disabilities based on reading disorders.

  • Failure to conduct timely or appropriate evaluations of students with suspected reading disorders.

  • Failure to timely develop and revise appropriate “IEPs” or “504 Plans” for students with qualifying reading disorders.

In the settlement, Berkeley Unified School District has agreed to take the following actions (these bullets come directly from the settlement document):

  • BUSD will implement policies to promote early and successful reading.

  • BUSD will maintain systematic, equitable, and verifiable policies and practices to provide early, intensive, research-based general education interventions for students at risk for reading disabilities. These will be facilitated by universal screening and progress monitoring of reading growth to promote timely evaluation and identification of students at risk for reading disabilities.

  • BUSD will conduct a review and assessment of its core reading program.

  • BUSD will choose and implement a “reading data system” and “reading testing system” for use in Grades K-8 to measure students’ reading fluency, and their progress toward “benchmarks” or academic goals.

  • BUSD will maintain a routine and practical method to carry out Child Find duties to identify students with suspected reading disabilities.

  • BUSD will implement policies and procedures to improve IEP goal and Section 504 plan development, progress monitoring, and use of appropriately intensive, research-based interventions. BUSD will transition to the Pattern of Strengths and Weaknesses (“PSW”) for specific learning disability eligibility (“SLD”). BUSD has also selected the Wilson Reading System for use with struggling readers.

  • BUSD will create an Implementation Team including the BUSD Director of Schools, Director of Special Education, and Section 504 Plan Coordinator. This team will report to the School Board at least quarterly on progress on the Plan.

  • BUSD leadership will support the plan through targeted professional development for teachers and related-services personnel, and ongoing monitoring of staff engagement and perceptions about the Plan.

This suit is not the first time schools have been taken to court regarding failure to teach reading effectively. In the 1970s, a high school graduate known as "Peter Doe" sued, alleging that he read so poorly that he couldn't get reasonable employment (see Gordon, 1975; Saretsky, 1973). More recently, New York Times reporter Dana Goldstein (see sources) monitored multiple cases in which students have sued schools for failing them by implementing discriminatory policies and practices. Most of those cases were brought on the basis of racial or ethnic discrimination. There are more stories in the sources. And there are surely some others that I haven't catalogued.

The proposed settlement is available from both Disability Rights Education and Defense Fund and the Berkeley Unified School District

Copies of the complaint are available for download, too.

Sources

Balingit, M. (2018, August 13). Do children have a right to literacy? Attorneys are testing that question. Washington Post. https://www.washingtonpost.com/local/education/do-children-have-a-right-to-literacy-attorneys-are-testing-that-question/2018/08/13/926d0016-9042-11e8-8322-b5482bf5e0f5_story.html

Einhorn, E. (2020, April 23). Detroit students have the right to an education, federal appeals court rules: "If replicated, this ruling could raise the level of education for disadvantaged students across the nation," one scholar said. NBC News. https://www.nbcnews.com/news/education/detroit-students-have-right-education-federal-appeals-court-rules-n1191046

Fortin, J. (2018, July 4). ‘Access to Literacy’ is not a constitutional right, judge in Detroit rules. New York Times. https://www.nytimes.com/2018/07/04/education/detroit-public-schools-education.html

Goldstein, D. (2018, November 28). Are civics lessons a constitutional right? This student is suing for them: Many see the lack of civics in schools as a national crisis. A federal lawsuit says it also violates the law. New York Times. https://www.nytimes.com/2018/11/28/us/civics-rhode-island-schools.html

Goldstein, D. (2018, August 21). How do you get better schools? Take the state to court, more advocates say. New York Times. https://www.nytimes.com/2018/08/21/us/school-segregation-funding-lawsuits.html

Goldstein, D. (2020, April 27 & 28). Detroit students have a constitutional right to literacy, court rules: A major ruling in a lawsuit involving the Detroit public schools comes at a time when school shutdowns are expected to affect poor children most adversely. New York Times. https://www.nytimes.com/2020/04/27/us/detroit-literacy-lawsuit-schools.html

Gordon, B. L. (1975). Schools and school districts—Doe v. San Francisco Unified School District, tort liability for failure to educate. Loyola University Law Journal, 6(2), 462-481. https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2343&context=luclj

Kohli, S. (2017, December 5), California isn’t doing enough to teach kids how to read, lawsuit says. Los Angeles Times. https://www.latimes.com/local/education/la-me-edu-california-literacy-lawsuit-20171129-story.html

Kohli, S., & Lee, I. (2020, Feb 20). California students sued because they were such poor readers. They just won $53 million to help them. Los Angeles Times. https://www.latimes.com/california/story/2020-02-20/california-literacy-lawsuit-settlement-53-million

Saretsky, G. (1973). The strangely significant case of Peter Doe. Phi Delta Kappan, 54(9), 589-592. https://www.jstor.org/stable/20297345

Stewart, D. (1971). Educational malpractices: The big gamble in our schools. Slate Services.

Tang, A., Hutt, E., & Klasik, D. (2020, April 26). A constitutional right to literacy for Detroit’s kids? They deserve better schools, but the courts don’t offer much hope. New York Times. https://www.nytimes.com/2020/04/26/opinion/gary-whitmer-detroit.html

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