"AT BEST AN INEXACT SCIENCE"*: DELIMITING THE LEGAL CONTOURS OF SPECIFIC LEARNING DISABILITY ELIGIBILITY UNDER IDEA

"AT BEST AN INEXACT SCIENCE"*: DELIMITING THE LEGAL CONTOURS OF SPECIFIC LEARNING DISABILITY ELIGIBILITY UNDER IDEA

THE LEGAL MEANING OF SPECIFIC LEARNING DISABILITY FOR SPECIAL EDUCATION ELIGIBILITY. PERRY A. ZIRKEL. ARLINGTON, VA: COUNCIL FOR EXCEPTIONAL CHILDREN, 2006. 111 PAGES.

Reviewed

Special education under the Individuals with Disabilities Education Act (IDEA)1 has been all the rage in education law in recent years. Last Term alone, the United States Supreme Court decided two IDEA cases, one involving burden of proof issues in due process hearings concerning the provision of a free appropriate public education (FAPE),2 the other concerning whether prevailing parents are able to be reimbursed for non-attorney expert fees under the IDEA fee-shifting provision.3 Additionally, the most comprehensive amendments to IDEA in seven years, the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA),4 went into effect on July 1, 2005, making many important changes to existing special education law doctrine.5 More recently, final regulations to these new IDEIA amendments have been adopted.6

At the same time that special education law has generally enjoyed increased prominence, there continue to be special education legal issues that are not receiving the attention that they merit. Case in point: specific learning disability (SLD) eligibility determinations. Consider for a moment that almost 50% of children7 currently eligible for special education and related services under IDEA qualify for such services under this SLD eligibility category.8 That means that some 3 million children (representing nearly 6% of the total enrollment in American public schools) have been determined to have specific learning disabilities and are receiving additional educational services to assist them in achieving their full educational potential.9

Although many have criticized placing too many children (especially minority children) in special education in general for cultural, economic, and environmental deficits,10 there has as of yet not been a formal legal analysis of the SLD eligibility criteria to determine why there might be an over-subscription of children in this IDEA disability classification. Indeed, one would think that with so many children being classified as SLD, and the fact that SLD is the only disability classification with its own set of criteria and procedures," that there would be a welldeveloped legal decisional framework for determining when children are eligible for special education on this basis.12

Perry Zirkel, one of the most prolific special education law scholars in the country today, changes this present state of affairs with his new book, The Legal Meaning of Specific Learning Disability for Special Education Eligibility.13 In this book, Zirkel provides for the first time a thorough-going synthesis of the legal requirements for SLD eligibility,14 in which he parses the federal15 statutory and regulatory language of IDEA with regard to SLD and establishes a decisional framework to analyze these cases.

Zirkel's book is an important contribution to special education law as it fills in a gaping hole in the literature of specific learning disabilities.16 Zirkel himself nicely sums up the importance of his monograph:

The benefit of this information [on SLD eligibility determinations], particularly as a handy reference, is the ability to consider not only the pedagogical, psychometric, philosophical, and practical aspects of SLD eligibility but also, given the binding boundaries of the IDEA and its related primary sources, the legal dimensions of SLD.17

Zirkel's decisional framework is based on five major elements taken directly from the federal statutory and regulatory provisions18: Disorder,19 Disorder-Related Exclusion,20 Discrepancy,21 Discrepancy-Related Exclusions,22 and the Need for Special Education.23 Having parsed the relevant legislative and regulatory language into a workable decisional legal framework, Zirkel then sets about to apply his analytical framework to 85 SLD cases24 that have either been decided by the courts or state hearing/review officers since the inception of IDEA.25

By applying this legal decisional framework to these cases, Zirkel is able to conclude that SLD case law has "provided significant latitude and substantial deference to the professional discretion of school district SLD eligibility determination teams."26 More specifically, he arrives at some interesting findings about the nature and characteristics of SLD case law that was previously obfuscated by a failure to consider SLD eligibility determinations from a legal perspective. For instance, Zirkel notes that even though SLD children represent 50% of special education children in this country, only 1% of all special education decisions concern SLD eligibility.27 Moreover, Zirkel finds that school districts have won 81% of SLD cases, which means, by and large, that children in these cases have been found not eligible for special education services on the basis of SLD.28 Finally, through breaking down SLD eligibility into decisional elements, Zirkel is able to shed some light on the legal reasoning why children are found not to meet the SLD classification.29

Not surprisingly, the Discrepancy B category,30 with its emphasis on there being a severe discrepancy between achievement and intellectual ability in one or more of seven defined areas, is the primary reason why children are deemed ineligible under SLD.31 This finding is interesting because not only does it indicate that the traditional severe discrepancy standard continues to play a large role in SLD eligibility determinations,32 but it places in the spotlight an issue recently addressed by the IDEIA amendments themselves: does the severe discrepancy model remain the best and most accurate way to identify children with SLD?

The IDEIA answers this question in a manner which suggests that education decisionmakers have become flustered by the severe discrepancy model's variability and are willing to try alternative methods.33 Specifically, the new law forbids states from forcing local school districts to use a discrepancy model, putting in doubt whether the severe discrepancy astandard will continue to be the key tool for assessing SLD in children.34 Instead, the amended statute speaks in terms of permitting schools to "use a process which determines if a child responds to scientific, research-based interventions."35 Consistent with this new approach, the recently enacted IDEIA final regulations give local schools the ability to use response-to-intervention (RTI) strategies as an alternative to the severe discrepancy standard.36

Zirkel really does not delve into the debate about whether schools should abandon the severe discrepancy formulation in favor of the RTI strategy.37 After all, Zirkel's enterprise is by no means normative and he sticks very closely to his initial descriptive purposes. Nevertheless, and even though Zirkel does not set out to pick sides in this on-going SLD debate, the reader is left wondering what impact Zirkel's SLD case law analysis might have on the on-going debate between severe discrepancy and RTI proponents. Zirkel has certainly taken the first step by establishing a decisional framework and applying that framework to existing case law, but it seems that he should take his work further in one or two possible directions in subsequent pieces.

First, based on this initial research, and in order to complete this worthy project, Zirkel should undertake a more sophisticated analysis of his results and use his findings to come to some prescriptions about which criteria should shape the future of SLD eligibility determinations.38 In other words, Zirkel should conduct a more formal statistical analysis (such as a multiple regression analysis) of the data set and use the findings to make an argument regarding whether severe discrepancy analysis should be abandoned, modified, or embraced.39 This is an important next step to take as the Department of Education's IDEIA final regulations permit local school districts substantial latitude in choosing between SLD eligibility criteria. Such an analysis, with statistically significant conclusions, will be more persuasive to educational decisionmakers currently grappling with picking between different approaches to SLD eligibility.40

Second, now that the final IDEIA regulations are in place, schools need the chance to implement more RTI strategies in determining SLD eligibility. It would be thereafter beneficial to create a new decisional framework to consider the relative merits of increasing the use of the RTI approach.41 Based on that framework, a legal comparison could then be undertaken between schools who continue to use the severe discrepancy model versus those that decide to utilize RTI strategies. In this way, further insight will be gained about which eligibility model is more likely to lead to less variability in SLD eligibility decisions involving similarly-situated children with disabilities.42

With those suggestions out of the way, Zirkel should be commended for filling in a conspicuous gap in the law of special education by developing a comprehensive decisional framework to shed light on the legal bases for SLD eligibility determinations. Nevertheless, as educators around the country continue to struggle in deciding when a child has a specific learning disability, it is incumbent on legal scholars to use their problem solving skills not merely to describe and characterize existing problems, but also to fashion prescriptions to improve the legal framework for SLD eligibility determinations. Perry Zirkel in The Legal Meaning of Specific Learning Disability for Special Education Eligibility has made the opening gambit and now it is for him and others to take the next step and provide the correlative normative legal arguments.