The Ninth Circuit's Recent Ruling: RTI?
By Perry A. Zirkel
Response to intervention (RTI) is a major current issue at the intersection of general and special education, with the school psychologists in their usual central position (e.g., Fanelli & Bonarrigo, 2011). The literature is replete with scholarly and practical sources on RTI, but the legal sources are limited. A few articles provide systematic coverage of the relevant provisions of the IDEA and related state laws (e.g., Zirkel, 2011b; Zirkel & Thomas, 2010). However, the sources specific to litigation (e.g., Walker & Daves, 2010)—as I have explained elsewhere (e.g., Zirkel, in press)—tend to confuse RTI with general education interventions, such as school support teams, that predate and do not equate to RTI (e.g., Buck, Polloway, Smith-Thomas, & Cook, 2003).
During this semester, I asked the students in my graduate seminar in special education law, which is almost half school psychologists, to find court decisions that specifically address RTI as an issue. I warned them to exclude court opinions that merely mentioned RTI as a peripheral matter and those that were specific to general education interventions. The only case that arguably fit was Michael P. v. State of Hawaii Department of Education (2011). This published appellate court decision merits careful examination.
In approximately April 2006, when Courtney was in Grade 4, her parent requested an evaluation for specific learning disability (SLD) using the RTI model. Hawaii provided the evaluation, but based on the severe discrepancy model. Although the May 2006 standardized testing revealed limited problems in reading (e.g., a low average score for Broad Reading on the Woodcock–Johnson III), the evaluation team concluded that she did not have the requisite severe discrepancy in light of her low-average IQ, specifically a Full Scale WISC-IV score of 82.
At the start of Grade 5, Courtney's parent obtained an independent educational evaluation (IEE) in which a licensed clinical psychologist issued a diagnosis of dyslexia and recommended immediate remediation and intensive tutoring. In November 2006, the evaluation team considered the IEE report and the fifth-grade teacher's informal reading results, which showed improvement that the teacher regarded as substantial (but the parent's subsequent experts deemed not significant). The team again concluded that Courtney was not eligible as SLD because her academic achievement was commensurate with her ability, even when measured by the IEE's higher IQ score.
In early January 2007, frustrated with Courtney's lack of progress in reading, the parent hired a tutor with a doctorate and special training for teaching dyslexic students. Based on her initial assessment, the tutor concluded that Courtney had a “quite severe reading disability.” She provided weekly dyslexia reading tutoring sessions. Before the tutoring, Courtney read a fourth-grade passage with 90% accuracy and 10% comprehension. At the end of Grade 5, Courtney read a fifth-grade passage with 95% accuracy and 50% comprehension, and her score on the state's NCLB standardized test for reading was at the upper end of the “approaches reading proficiency” level, which was similar to the other fifth graders in her school and in Hawaii. Meanwhile, in mid-March 2007, the parent filed for a due process hearing, seeking (a) eligibility with an IEP as SLD, (b) reimbursement for the IEE and the tutoring, and (c) compensatory education for Grades 4 and 5.
During the course of the hearing, which had sessions in August and December 2007, the parent placed Courtney in a private school for dyslexic and gifted students upon the tutor's recommendation for more intensive reading instruction, particularly for deficits in vocabulary and fluency. At the hearing, the parent's four expert witnesses, including the tutor, testified that Courtney was eligible as SLD, whereas a district school psychologist and Courtney's teacher countered that she did not qualify.
In February 2008, the hearing officer issued his decision, concluding that although Courtney had dyslexia, she was not eligible based on lack of severe discrepancy, also noting that her progress to near proficiency in reading indicated no need for special education. On the parent's appeal, the federal district court affirmed the hearing officer's decision, concluding that the 2006 IDEA regulations permitted the use of severe discrepancy and noting, with due deference, the hearing officer's finding that Courtney's standardized achievement tests were higher than her IQ score.
Undaunted, the parent appealed, and on September 8, 2011, the Ninth Circuit—in a 2-to-1 decision—agreed with her argument that Hawaii “improperly relied exclusively on the 'severe discrepancy model' to determine [SLD eligibility]” (p. 1066). The majority opinion employed a two-step analysis.
First, the court concluded the Hawaii procedurally violated the IDEA, reasoning as follows:
- The 2006 IDEA regulations, which were effective on October 13, 2006, were controlling at the time of Courtney's final eligibility evaluation in November 2006.
- Hawaii did not amend its state special education regulations to conform to these IDEA regulations, which changed—at each state's choice—severe discrepancy from a required to permitted or prohibited status and which also introduced RTI to at least a permitted status—until November 2009.
- Thus, Hawaii “procedurally violated the IDEA”(p. 1067) by requiring the severe discrepancy model.
In reaching this conclusion, the Ninth Circuit rejected Hawaii's argument that, because of its unique status as both the state education agency (SEA) and the local education agency (LEA), such reasoning deprived the SEA the opportunity to follow the lead of the majority of the other states to permit both models and, thereby, the LEA to opt to continue the use of severe discrepancy. In the Ninth Circuit's view, this unique status was no excuse for the SEA to “shirk its responsibilities” (p. 1067) to conform its regulations to the IDEA.
Second, the court addressed whether this procedural denial was prejudicial (i.e., deprived the child of FAPE) by posing the question of whether the SEA's unlawful regulations resulted in an improper determination of SLD eligibility. Pointing out that Hawaii's new regulations permit the child to qualify as SLD under either RTI or severe discrepancy, the Ninth Circuit remanded the case back to the federal district court to determine whether Courtney was eligible as SLD under the new regulations and, if so, the appropriate relief.
The dissenting judge—as a proud Hawaii resident—“forcefully” disagreed (p. 1070), regarding the majority opinion as applying discriminatorily to Hawaii due to its legitimate and unique choice of being both an SEA and LEA. Addressing the first step of the majority's analysis, he cited the IDEA's legislative history as evidencing Congressional intent to allow LEAs to continue use of the severe discrepancy model. He also cited the express text of IDEA 2004, pointing out that Congress did not make RTI the sole model for SLD identification. More specifically, he contended: “Congress very clearly did not prohibit a local agency from deciding to use the severe discrepancy standard. Hawaii should have the same freedom to decide for itself that all other school districts in the country do” (p. 1072). Thus, he emphasized Hawaii's role as an LEA, whereas the majority focused on its role as an SEA.
For the second step of the majority's analysis, he concluded that with due deference to the hearing officer's factual findings and in accordance with Hawaii's new regulations, “the record does not compel the conclusion that Courtney's academic achievement was incommensurate with her intellectual abilities, that her reading performance was substantially below average, or that she required special education to perform adequately in school” (p. 1074).
At first glance, the Ninth Circuit's decision in Michael P. may seem to require the RTI model, per the parent's original, April 2006 request. The majority's first-step analysis seemed to exclude severe discrepancy as the exclusive or required model for SLD identification, thus implicitly requiring RTI, by default, as the alternative or at least additional approach.
However, upon closer examination, the first step of the majority's analysis was limited to one of two interpretations. Narrowly interpreted, the court's rationale was specific to Hawaii's unique dual status; even if the SEA promptly had chosen to permit RTI—which the majority of other states have done so far (Zirkel & Thomas, 2011)— it would be in violation of IDEA 2004's provision that states must permit RTI. More broadly interpreted, the violation was specific to Courtney's latest evaluation arising after the effective date of the 2006 IDEA regulations and before Hawaii changed its state law to conform to the required choice of permitting or requiring RTI and, conversely, permitting or prohibiting severe discrepancy. Under this reading, every state faced this problem during the transitional period, which occurs in the wake of each IDEA reauthorization and which varies from state to state.
Moreover, regardless of which reading of the first step applies, the second and crucial step of the analysis merely required determination of eligibility in accordance with the state's new, conforming regulations. As the dissent made clear, Courtney may not qualify under Hawaii's new regulations. More importantly, because Hawaii's choice was not to join the 12 or so states that have required RTI for SLD identification, the Ninth Circuit did not require the use of RTI in Courtney's case, much less as a general matter beyond Hawaii.
The nuanced, educational observations of school psychologists, such as the differentiation— rather than equating—of RTI and evaluation; the assessment of the district's and the IEE's testing; the questioning of the effect of the tutoring sessions; and the focusing on the second, need prong of eligibility, are distractors in relation to the key question of whether the Ninth Circuit's decision specifically addressed RTI.
In my view, the case law surprisingly still lacks clear-cut guidance specific to the use of RTI for SLD identification. As I have canvassed along with the Office of Special Education Program policy interpretations (Zirkel, 2011a), previous decisions that addressed RTI have been limited to the hearing officer level and are largely more confusing than clarifying. Unfortunately, Michael P. is more smoke rather than fire in terms of RTI.
The absence of judicial rulings specific to RTI 7 years after the passage of the 2004 amendments to the IDEA is surprising, particularly in light of parental skepticism (Kelleher, 2011), commercial stakes (Samuels, 2011), and insufficient research (Sparks, 2011). The absence may be attributable in part to the ponderous process of federal regulations, conforming state laws, and time-consuming adjudication starting with the impartial administrative hearings. A second contributing factor is that despite RTI's prevailing although not unanimous support not only in the literature but also among school psychologists (O'Donnell & Miller, 2011), only the minority of states has opted to require the RTI model for SLD identification (Zirkel & Thomas, 2011), and its implementation is increasing but not predominant (Spectrum K12 School Solutions, 2011; Bradley et al., 2011). However, a third possible reason is that the recent reduction in the number and proportion of special education students in the SLD category (e.g., National Center, 2010) and the subsequent, flexible movement toward RTI may, contrary to the previous case law concerning SLD eligibility (e.g., Zirkel, 2010), amount to a less fertile field for formal disputation with regard to SLD identification. Whatever the reasons are, the concern with court decisions specific to RTI remains much ado about practically nothing.
Bradley, M. S., Daley, T., Levin, M., O'Reilly, R., Parsad, A., Robertson, A., & Werner, A. (2011). IDEA national assessment implementation study: Final report. Washington, DC: U.S. Department of Education. Retrieved from http://www.edpubs.gov/document/ed005248p.pdf?ck=1
Buck, G. H., Polloway, E. A., Smith-Thomas, A., & Cook, K. W. (2003). Prereferral intervention processes: A survey of state practices. Exceptional Children, 69, 349–360.
Fanelli, R., & Bonharrigo, C. (2011). Communication of leadership role for school psychologists in RTI procedures through collaboration with curriculum specialists. Communiqué, 40(2), 14–15.
Kelleher, M. (2011, March 2). Parents skeptical of RTI's benefits. Education Week, p. S14.
Michael P. v. State of Hawaii Dept. of Educ., 656 F.3d 1057 (9th Cir. 2011).
National Center for Education Statistics. (2011). Fast facts: How many students with disabilities receive services? Retrieved from http://nces.ed.gov/fastfacts/display.asp?id=64
O'Donnell, P. S., & Miller, D. N. (2011). Identifying students with specific learning disabilities: School psychologists' acceptability of the discrepancy model versus response to intervention. Journal of Disability Policy Studies, 22(2), 83–94.
Samuels, C. A. (2011, March 2). Curriculum developers seek to capitalize on RTI's growth. Education Week, p. S9.
Sparks, S. A. (2011, March 2). RTI: More popular than proven. Education Week, p. S16. Spectrum K12 School Solutions. (2011). Response to intervention (RTI) adoption survey. Retrieved from http://www.spectrumk12.com/resources/white_papers/response_to_intervention_adoption_survey
Walker, D. W., & Daves, D. (2010). Response to intervention and the courts: Litigation based guidance. Journal of Disability Policy Studies, 21(1), 40–46.
Zirkel, P. A. (2010). The legal meaning of specific learning disability for special education eligibility. Teaching Exceptional Children, 42(5), 62–67.
Zirkel, P. A. (2011a). RTI and the law. West's Education Law Reporter, 268, 1–16.
Zirkel, P. A. (2011b). State laws and guidelines for RTI: Additional implementation features. Communiqué, 39(7), 30–32.
Zirkel, P. A. (in press). RTI confusion in the case law and the legal commentary. Learning Disabilities Quarterly.
Zirkel, P. A., & Thomas, L. (2010). State laws and guidelines for implementing RTI. Teaching Exceptional Children, 43(1), 60–73.
Perry A. Zirkel is university professor of education and law at Lehigh University and a frequent contributor to Communiqué.