Yes Virginia, There is a Discrepancy Clause, but is it Much Ado About Nothing?

28 Pages·2001·0.33 MB·English

Winter 2001
2 Presidents
Me s s a g e
20 Mu l t i c u l t u r a l Ma t t e r s :
Is There Black
Culture Learning
St yle ?
23 SA S P Ne w s
Division of School Psycho l o g y Volume 55, Number 1
Yes, Vir ginia, there is a Severe Discrepancy Clause,
but is it Too Much Ado About Something?
Ron Dumont, Fairleigh Dickinson University
John Willis, Rivier College
Guy McBride, Burke County Public Schools, NC.
There are three kinds of people in Dear Editor of The School Psychologist: tion and the regulations that the dis-
this world - those who can count I am 28 years old. Some of my ability reflect a disorder in psychologi-
and those who can't. Un k n o w n friends say there is no need for a numer- cal processing; and that the cause of
the child's deficiencies not be primarily
ical severe discrepancy when determin-
the result of a visual, hearing or motor
ing a specific learning disability. Papa im p a i r ment; mental retardation; or
Even if you are on the right track, says, "If you see it in The Newsletter, it's social, economic, or environmental fac-
tors CFR sections 300.7 (10); 300.541.
you'll get run over if you just sit so." Please tell me the truth, do we need
Ad d i t i o n a l l y , CFR section 300.534 pro-
there. Will Rog e r s a severe discrepancy to identify a spe-
hibits the classification of a child under
cific learning disability? any classification if:
-V ir g i n i a (1) The determinant factor for that
eligibility determination is—
If you're enjoying this program
The answer to this question seems (i) Lack of instruction in reading
just half as much as we've
to depend upon whether you are ask- or math; or (ii) Limited English
enjoyed doing it, then we've
ing about the presence of a learni n g proficiency; and
enjoyed it twice as much as you.
disability or the presence of an educa- (2) The child does not otherwise meet
Michael Pal i n tionally disabling condition. Contrary to the eligibility criteria under Sec.
popular opinion, Virginia, there is no 30 0 . 7 ( a ) .
federal requirement for any sort of
Probably nothing related to the
mathematical measurement of "severe
identification of specific learning dis-
Bad facts make bad law. di s c r e p a n c y ," there is no federal
abilities causes multidisciplinary teams
Frank Zappa requirement to base any such compari-
(M D T s) more problems than the deci-
son on test scores at all, and a severe
sions they are asked to make regarding
discrepancy may, in fact, be completely
whether the child has or does not have
A respect for the law of parsimo- ir relevant to the determination of a
a severe discrepancy. Teams are ofte n
ny is a characteristic of science, specific learning disability (SLD).
st r uggling for clear guidelines to help
but educational psychology's pen-
The federal criteria carry the force ob j e c t i f y the process. Questions related
chant for simple answers to ques-
of law and virtually every decision and to the area of severe discrepancy ofte n
tions of complex behavior, parti c -
letter we have reviewed speaks to the include: Does the Individuals with
ularly in the area of learning dis-
need for an Individualized Education Disabilities Education Act (IDEA) actu-
ab i l i t y , has tended toward pauci- Plan (IEP) team to determine that there ally demand that a team find a severe
ty rather than parsimony of was a severe discrepancy. There are discrepancy? Is a severe discrepancy
ex p l a n a t i o n . John McLeo d explicit dicta within the federal defini- defined or clarified anywhere in IDEA?
Continued on page 4
1
President’s Message
Pr ofessional Communities of the Future
Jack Cummings, Indiana University
Professional organizations give days in the winter." I am a member of ty develops and members share a form
members a sense of community. As the American Psychological Association, of community where they are able to
members of Division 16, we share val- but not the British Psy c h o l o g i c a l exchange or share ideas and resources.
ues of caring and working for the bene- Association. The travel time and costs Li s t s e r vs offer a glimpse of poten-
fit of children. We share knowledge of prohibit me from regular attendance at tial future electronic communities.
tools for academic and social/behavioral the British conferences. Recently developed Web-based soft-
in t e r ve n t i o n s Psychologists across various ware allows a presenter to communi-
designed to regional and national psychological cate with a small or large group. The
improve learni n g associations encounter children who po w e r ful value-added aspect of using
environments. We have learning difficulties, as well as the Web is that the location of the audi-
strive to under- those who struggle with behavior in ence is irrelevant. The meeting can be
stand children’s classrooms and those with problems open to anyone with access to the
difficulties in initiating and maintaining social rela- In t e r net, or it can be closed by requir-
more than a with- tions with peers. These problems are ing the user to enter the conference
in child frame- not place-based, they are common diffi- space with a password. A Web - b a s e d
work, to consider culties of children in schools regardless presentation can be quite similar to
classroom dynam- of region or nation. A recent email on those conducted in a face-to-face for-
ics, and reflect on the EPNET, a listserv that serves educa- mat. The speaker may present a
broader systems level issues. In this tional psychologists in Great Britain, sequence of Pow e r P oint slides, be
context we influence schools as well as illustrates the point. The psychologist heard (audio only) or be heard and
other environments outside the tradi- requested information on ways to seen in real-time video. The audience
tional P-12 domain. We work to protect address the problem of bullying. In can submit questions or be polled for
children’s psychological and education- response, individuals on the listserv their reactions to points made by the
al rights through advocacy and legisla- suggested various web sites that sp e a k er . Software exists to allow shar-
tive efforts . address the problem. ing of a "whiteboard" space, such that
No r mally we think of professional Most members who have been the presenter and the participants can
organizations as "place-based" commu- pa r t of a listserv for a number of work together as they would on a con-
nities. I am a member of the Indiana months will note that these electronic ventional blackboard.
Association of School Psychologists, but venues share characteristics with con- Other web tools exist to allow
do not belong to the comparable state ventional face-to-face communities. asynchronous communications. Web
organizations in Florida or California. It No r ms develop for what are socially fo r ums have the advantage of requiring
is not that, on a snowy day like today, I accepted communications. If someone neither geographic proximity nor
haven’t looked at announcements of strays from the norm, other members assembling at the same time, hence the
the Florida or California state confer- will remind the individual to behave te r m asynchronous. Within the Indiana
ences and thought, "what nice locations pr o p e r l y . Over time, a shared history of University School Psychology Program
to gather with colleagues for a couple interactions develops. A sense of identi- we have used web forums for debates
Continued on page 15
Ed i t o r ’s Message
Vincent C. Alfonso, For dham University
As I begin my first of three years as editor of The School you to be a part of the newsletter by contributing materials
Psychologist, I thought it would be a good idea to make some such as an article or test/ book rev i e w . Although there are print-
opening remarks. First, I’d like to recognize Dr. Steven G. Little ing deadlines, I can assure that most submitted materail will be
for his significant contributions to the newsletter these past six printed in an issue. Fourth, I invite you to submit comments to
years. Steve has edited TSP with great professionalism and Linda ([email protected]) reg a r ding any printed informa t i o n
scholarship. He has helped me tremendously in my transition to in the newsletter especially the feature article. Finally, Dr.
ed i t o r . Second, I’d like to bring your attention to the editorial Angeleque Akin-Little has agreed to edit the "people and
st a f f of TSP by directing you to the back cover. A perusal of the places" column that was a part of previous issues. Angeleque
names and institutions will, in all likelihood, impress you. I am can be reached at [email protected]. I hope that you enjoy
grateful to Dr. Linda A. Reddy, associate editor, for taking a reading TSP during the next three years!
n
leadership role in the production of the newsletter. Third, I invite
2
Division 16 Executive Committee
Pr es i d e n t Vice of President Vice President of Hi s t o r i a n
Jack Cummings, Ph.D. Pr ofessional Affairs Social and Ethical Thomas K. Fagan, Ph.D.
Education #4038 Deborah Tharinger, Ph.D. Responsibility & De p a r tment of Psychology
Indiana University SZB 504 Ethnic Minority Affairs The University of Memphis
201 North Rose Ave . University of Tex a s Robyn S. Hess, Ph.D. Memphis, TN 38152
Bloomington, IN 47405-1006 Austin, TX 78712 School of Education, C.B. 106 [phone]
[phone] [phone] P.O. Box 173364 to m - f a g a n @ m a i l . p s y c . m e m p h i s . e d u
cu m m i n g s @ i n d i a n a . e d u [phone] (fax) University of Colorado-Denver
dt h a r i n g e r @ m a i l . u t e x a s . e d u De n v e r , CO 80217 Ed i t o r , School
Pr es i d e n t - E l e c t [phone] Psychology Quarte r l y
Steven G. Little, Ph.D. Vice Pres. of Membership Robyn [email protected] d u Ter ry B. Gutkin, Ph.D
Dept. of Psychology Colette L. Ingraham, Ph.D. 117 Bancroft Hall
Hofstra University De p a r tment of Counseling and Council Repres e n t a t i v e s Dept. of Educational Psychology
Hempstead, NY 11549 School Psychology Jonathan Sandoval, Ph.D. University of Nebraska-Lincoln
[phone] MC 1179, College of Education Division of Education Lincoln, NE 68588
[phone] San Diego State University One Shields Ave n u e [phone]
st e v e n . g . l i t t l e @ h o f s t r a . e d u San Diego, CA 92182-1179 U.C. Davis tg u t k i n 1 @ u n l . e d u .
[phone] Davis, CA 95616-8579
Past Pres i d e n t [phone] (fax) [phone] n
Rick J. Short, Ph.D. in g r a h a m @ m a i l . s d s u . e d u [phone] (fax)
De p a r tment of Educational and jh s a n d o v a l @ u c d a v i s . e d u
Counseling Psychology Vice President of Education,
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University of Missouri Al b e r to Bursztyn, Ph.D. University of Texas at Austin
Columbia, MO 65211 Br ooklyn College - CUNY Dept. of Educational Psychology
[phone] 2900 Bedford Ave n u e SZB 504
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3
Continued from the cover…
Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
How severe is severe? What is the ceptual handicaps, brain injury, mini- disabilities (e.g., sensory impairment,
severe discrepancy discrepant from? mal brain dysfunction, dyslexia, and mental retardation, serious emotional
What IQ or other ability score (e.g., developmental aphasia. . . . The term disturbance), or with extrinsic influ-
Wechsler Full Scale, Ver b a l , does not include learning problems ences (such as cultural differences,
Per fo r mance IQ; Differential Ability that are primarily the result of visual, insufficient or inappropriate instruc-
Scales General Conceptual Ability or hearing, or motor disabilities, of men- tion), they are not the result of those
Cluster Score, Woodcock-Johnson Tes t s tal retardation, of emotional distur- conditions or influences. [National
of Cognitive Ability III General bance, or of environmental, cultural, Joint Committee on Learning
Intellectual Ability or Cluster Score, or economic disadvantage. Disabilities (1990).]
etc.) can be used when determi n i n g
IQ-Achievement discrepancies? Are The Learning Disabilities Diagnostic and Statistical
there other, acceptable ways to deter- Association of America Ma n u a l - F o u r th Edition Tex t
mine severe discrepancy besides using (L D A ) Revision (DSM-IV-TR; 2000)
the IQ-Achievement test score compari- Specific Learning Disabilities is a
315.00 Reading Disorde r
so n ? chronic condition of presumed neu- A. Reading achievement, as measured
The real problem is that neither rological origin which selectively by individually administered stan-
the federal definition nor the federal interferes with the development, inte- dardized tests of reading accuracy
regulations have ever defined any of gration, and/or demonstration of ver- and comprehension, is substantially
the key terms (e.g., "achievement," bal and/or nonverbal abilities. Specific below that expected given the per-
"intelligence," "severe," and even "pri- Learning Disabilities exist as a distinct son's chronological age, measured
marily"). Definitions of these terms are handicapping condition and varies in intelligence, and age-appropriate
le f t to the IEP teams with whatever its manifestations and in degree of ed u c a t i o n .
guidance their states provide them. In se v e r i t y . Throughout life, the condi- B. The disturbance in Criterion A sig-
some instances, States have provided tion can affect self-esteem, education, nificantly interferes with academic
guidance for what these terms might vocation, socialization, and/or daily achievement or activities of daily
mean, but when IEP teams have taken living activities. [Association for living that require reading skills.
them too literally, the Office for Special Children with Learning Disabilities C. If a sensory deficit is present, the
Education and Rehabilitative Servi c e s (1986). ACLD Description: Specific reading difficulties are in excess of
(OSERS) has slapped their hands, with Learning Disabilities. ACL D those usually associated with it.
the injunction that "no one formu l a " Newsbriefs, Sept./Oct. (166), 15. [Note: definitions of Mathematics
may be used to establish eligibility. Note: The Association for Children Disorder (315.1), Disorder of
Various professions have encour- with Learning Disabilities is now the Written Expression (315.2), and
aged different definitions of learni n g Learning Disabilities Association of Learning Disorder Not Otherwise
disabilities. These definitions, although America.] Specified (315.9) are similar.]
of ten very similar to each other, have
The National Joint
enough difference between them to Ad d i t i o n a l l y :
Committee on Learni n g
cause problems for MDTs when it Learning Disorders are diagnosed
Disabilities
comes to choosing among them. Below when the individual’s achievement on
Learning disabilities is a general
are a few of the many conceptualiza- individually administered, standard-
term that refers to a heterogeneous
tions of what constitutes a learning dis- ized tests in reading, mathematics, or
group of disorders manifested by sig-
ab i l i t y . [We have included one State def- written expression is substantially
nificant difficulties in the acquisition
inition (New York) as an example of below that expected for age, school-
and use of listening, speaking, read-
how the State definitions may differ ing, and level of intelligence. The
ing, writing, reasoning, or mathemati-
from other definitions.] learning problems significantly inter-
cal abilities. These disorders are
fere with academic achievement or
IDEA [§300.7 (c)(10)] intrinsic to the individual, presumed
activities of daily living that require
Specific learning disability . . . to be due to central nervous system
reading, mathematical, or writing
means a disorder in one or more of dysfunction, and may occur across the
skills. A variety of statistical approach-
the basic psychological processes life span. Problems in self-r e g u l a t o r y
es can be used to establish that a dis-
involved in understanding or in using behaviors, social perception, and
crepancy is significant. Su b s t a n t i a l l y
language, spoken or written, that may social interaction may exist with
below [italics in original] is usually
manifest itself in an imperfect ability learning disabilities but do not by
defined as a discrepancy of more than
to listen, speak, read, write, spell, or themselves constitute a learning dis-
2 standard deviations between
to do mathematical calculations. The ab i l i t y . Although learning disabilities
achievement and IQ. A smaller dis-
term includes such conditions as per- may occur concomitantly with other
Continued on page 5
4
Continued from page 4
Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
crepancy between achievement and regulations cannot supersede the feder- ability and the criteria used to establish
IQ (i.e., between 1 and 2 standard al criteria although they can exceed qualification for special education ser-
deviations) is sometimes used, espe- them—that is, they can provide a high- vices based upon a disability. The defin-
cially in cases where an individual’s er level of entitlements, but they can- ition of specific learning disability estab-
performance on an IQ test may have not restrict the entitlements provided lishes the presence of a "disorder"
been compromised by an associated under the act. which is manifesting itself in one or
disorder in cognitive processing, a co- In 1997, Congress passed a sub- more areas of academic achievement as
morbid mental disorder or general stantial revision of IDEA. In 1999, listed above. With respect to other dis-
medical condition, or the individual’s OSERS published its final regulations abilities, the term "severe" and the
ethnic or cultural background. If a implementing IDEA, defining a specific phrase "adversely affects educational
sensory deficit is present, the learning le a r ning disability in the same way as it pe r fo r mance" are generally thought of
difficulties must be in excess of those did in 1977. It is interesting to note that as referring to some absolute deficit.
usually associated with the in the Federal definition of a learni n g Ho w e v e r , when considering SLD eligi-
deficit...Individualized testing is disability [§300.7 (c)(10)] as well as in bi l i t y , "severity" must be measured
always required to make the diagnosis the definitions of most advocacy against the child’s expected perfo r -
of a Learning Disorder…Learning groups and States, there is no mention mance, not against some arbitrary gen-
Disorders must be differentiated from of the term "severe discrepancy." One eral standard. The common require-
normal variations in academic attain- must read further in the relevant ment is that in determining eligibility
ment [boldface in original] and from Reg u l a t i o n s in order to find any men- under the SLD classification as in oth-
scholastic difficulties due to lack of tion of severe discrepancy. In IDEA the ers, the team must also find that the
op p o r t u n i t y , poor teaching, or cultur- te r m is found at §300.541 under the child needs special education in order
al factors (pp. 49-51). heading "Criteria for determining the to receive a free appropriate public
existence of a specific learning disabili- education (FAPE)—still another term in
New York [Part 200.1, (mm) (6)] ty" (below, italics added): special education law that is not opera-
tionally defined. [Although it is general-
"Learning disability" means a stu-
(a) A team may determine that a child ly accepted by the courts that the bene-
dent with a disorder in one or more of
has a specific learning disability if fits expected must be non trivial or
the basic psychological processes
(1) The child does not achieve com- meaningful, "need" must be deter-
involved in understanding or in using
mensurate with his or her age and mined by looking at the whole child—a
language, spoken or written, which
ability levels in one or more of the team may not assume that a child does
manifests itself in an imperfect ability
areas listed in paragraph (a)(2) of not need special education servi c e s
to listen, think, speak, read, write,
this section, if provided with learn- simply because he or she is receiving
spell, or to do mathematical calcula-
ing experiences appropriate for the passing grades and/or is being passed
tions. The term includes such condi-
child's age and ability levels; and from one grade to the next (see
tions as perceptual handicaps, brain
(2) The team finds that a child has a Florence County v. Carte r , 1991).]
in j u r y , neurological impairment, mini-
severe discrepancy between If this IDEA '97 regulation
mal brain dysfunction, dyslexia, and
achievement and intellectual abili- [§300.541] is taken at face value, there
developmental aphasia. The term does
ty in one or more of the following must be a severe discrepancy between
not include students who have learn-
ar e a s : ability (IQ?) and achievement (test
ing problems which are primarily the
(i) Oral expression. scores?) in order for a student to be
result of visual, hearing, or motor
(ii) Listening comprehension. identified as having a learning disability.
handicaps, of mental retardation, of
(iii) Written expression. Obviously one should not read this sec-
emotional disturbance, or of environ-
(iv) Basic reading skill. tion of the regulations in isolation and
mental, cultural, or economic disadvan-
(v) Reading comprehension. believe that the mere presence of a
tage. A student who exhibits a discrep-
(vi) Mathematics calculation. severe discrepancy establishes the pres-
ancy of 50 percent or more between
(vii) Mathematics reasoning. ence of a learning disability. The severe
expected achievement and actual
discrepancy may be the result of factors
achievement determined on an individ- We would note that, in this one
other than a "disorder in one or more
ual basis shall be deemed to have a instance, the Reg u l a t i o n s say a team
of the basic psychological processes."
learning disability. "may determine." Is there a difference
As noted above, the Reg u l a t i o n s
While all of these definitions have between "may determine" and "must
require that the multidisciplinary team
merit, none has the force of law in de t e r mine" or "this is the only way to
rule out other factors before determi n -
establishing eligibility under IDEA, de t e r mine?" Note that the Reg u l a t i o n s
ing eligibility as having a learning dis-
which provides legal entitlements to do not define a severe discrepancy.
ab i l i t y . IDEA '97 Final Regulations,
children meeting the congressional and There appears to be a distinction
re g u l a t o r y criteria. State definitions and between the definition of a learning dis- Continued on page 6
5
Continued from page 5
Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
Su b p a r t A §300.7 (c)(10)(ii) notes: Co u r ts are split as to how that should to California. No other circuit has rul e d
be determined. "Is additional evidence against using IQ tests for Afr i c a n -
Disorders not included. The term allowed upon appeal?" is another seem- Americans (OCR, 2000).
does not include learning problems ingly clear-cut legal question upon
that are primarily the result of visual, which the courts should be expected to • Given what the law says, isn't the
hearing, or motor disabilities, of rule with decisiveness. The First Circuit use of some statistical formula or
mental retardation, of emotional Co u r t allows supplemental evidence computer program not only
disturbance, or of environmental, but no embellishments of previous tes- required, but probably the only way
cultural, or economic disadvantage. timony; the 3rd Circuit Court says dis- to determine a severe discrepancy?
trict courts may exclude additional evi-
The criteria for determining SLD dence but with discretion; the 4th says First, Virginia let us say that dis-
involve a multi-step process. One step if the evidence was available at the time crepancy formulae are statistical night-
is for the team to determine that the of the due process hearing, district mares (Aaron, 1997; McLeod, 1974;
child is not achieving at a level com- co u r ts may exclude it; the 6th allows Reynolds, 1990). Fur th e r more, the
mensurate with age and ability when new evidence, but not on new issues; absence of some discrepancy should
provided with educational opportu n i - the 7th allows "supplemental" evidence; not be used as the sole criterion to
ties. This forces the team, in the ideal the 9th agrees with the 1st and 7th; and exclude children from a specific learn-
world, to rule out apedagogia (lack of the 11th Circuit Court threw up its ing disability (SLD) classification.
in s t r uction) and dyspedagogia (inap- hands and said that whether additional Discrepancies might be better thought
propriate instruction) as the source of evidence will be allowed is up to the of as presumptive in nature, not exclu-
the learning problem. Unfortu n a t e l y , "sound discretion" of the district court sive. Since the regulations provide little
teams seldom determine, or even con- judge (TSE, December 15, 2000, p. 5). guidance and no specific requirement
si d e r , that the source of the child's We make this point only to emphasize regarding any particular way of measur-
le a r ning problems is the teacher(s) or how perilous it is to base a conclusion ing the discrepancy, teams appear to
the administrator(s), or a mismatch on any single case, much less a due have great latitude regarding how they
between the child and the curri c u l u m . process hearing. ma k e discrepancy decisions.
Instead, the child usually is identified as Due process decisions only have One state, New York, added a sen-
the problem. force in the system wherein they were tence into its definition of Learni n g
Ad d i t i o n a l l y , as a condition of eligi- issued, and then only if not overtu r ne d Disability (see above) that notes "A
bi l i t y , the team would need to deter- by a court of competent jurisdiction. child found to have a 50% discrepancy
mine that the child required special There is a danger in over- generalizing between expected achievement and
educational services in order to receive the results, because they may contain actual achievement shall be deemed to
FAPE [§300.7(a)(1)]. some "bad law;" that is, legal decisions have a learning disability." Almost 20
based in part on findings that would years ago, in Riley vs. Ambach (United
• Okay, I see the difference between have been overtu r ned on appeal, or States Court of Appeals, Second Circuit
the specific definition of a child with decisions agreed to by the school sim- 668 F.2d 635; 1981 U.S. App. December
a learning disability and the general ply because settling was more cost 16, 1980, Argued May 19, 1981,
definition of one who meets the effective than litigating over principle. Decided), the court ruled that New
"criteria for eligibility for special For example, a hearing officer might York could not use the absence of the
education services," but doesn’t the find that a child had failed to make "50% discrepancy" to exclude children.
IDEA language, and more specifical- progress based on standard scores that The Court concluded that the use of
ly the language of the courts, offer remained constant over time, certa i n l y the 50% standard interferes with the
more definitive answers than these? a finding that can be appealed—but if proper identification of learning dis-
the IEP were inappropriate, the hearing abled children since it operates to elim-
So r ry Virginia, but the courts, in of f i c e r ’s possible error would never be inate consideration of factors and the
many instances, seem to offer little true reviewed and, therefore, never be cor- use of techniques that do not, "given
guidance in these matters. For example, rected. the present state of the art," lend them-
taking it out of the realm of SLD one Ad d i t i o n a l l y , some caselaw has selves to quantification. The clause has
would at least expect Circuit Court force only in the region in which the come to be defined, maybe as it should
judges to have some sort of consensus case was decided. For example, a fairly have been all along, as a presumptive
over procedural matters—due process well-known case, Larry P. v. Riles, which clause: If all things are in place you can
is, after all, their bread and butter. But sought to prohibit the use of intelli- presume the child eligible. But, if a
even in such seemingly "legal" areas of gence tests in assessing Afr i c a n - numerical discrepancy isn't clearly evi-
special education law as "Who bears the Americans was upheld in The 9th dent, you cannot, on that fact alone,
burden of proof?" the Federal Circuit Circuit Court (1984) but it applies only
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Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
exclude the child. We argue that this is as the be-all and end-all of learning dis- 2. The formula should take into
tr ue of IDEA. IF there is a discrepancy ability determination. Over reliance account the phenomenon of "regres-
you MAY identify the child as having a upon a "magic number" can expose a sion toward the mean," although a
Le a r ning Disability, BUT if there is no system to an adverse finding (e.g., Long number of states have adopted non-
numerical discrepancy, you cannot Beach Unified School District, 1998). It regression formulas for the sake of
automatically exclude the child. Similar is therefore not wise to try to use auto- si m p l i c i t y . When one attempts to
to catching the child red-handed in the matic formulas to establish specific predict one variable from another,
act of committing a crime—you have le a r ning disabilities, mental retardation, the predicted score is likely to be
the evidence, presume the child guilty. hearing impairment, or any other edu- closer to the mean than is the pre-
But what if you don't catch the child cational handicap. If a team or district di c t o r . If the student's ability score is
red-handed, does that mean the child were absolutely determined to use a not exactly average, the achievement
could not be guilty? Obviously, there "discrepancy formula," professional score can be expected to fall
may be other convincing evidence. "best practice" would suggest the fol- between the ability score and the
Second, as far back as August 23, lowing rules [see also McLeod, 1974 me a n .
1977, the newly created OSERS pub- and Reynolds, 1990. These issues are
lished its first regulations in implemen- also discussed thoughtfully in Flanagan, Since discrepancy formulas are con-
tation of Public Law 94-142. Those reg- Mc G r e w , and Ortiz (2000) and Mather ce r ned only with achievement lower
ulations included the following state- and Schrank (2001).] than ability, there are two situations
ment: to consider. If the student's ability
1. The formula should use some form measure is higher than the mean
“No single procedure is used as the of standard score (including norma l (for instance, 100 for most intelli-
sole criterion for determining an cu r ve equivalents). Percentile ranks gence tests), the expected achieve-
appropriate educational program cannot be used for mathematical ment level without learning disabili-
for a child” (emphasis ours). comparisons. Grade and age equiva- ties or other damaging influences
lents should not be used for making will fall between the mean and the
One might argue that if a MDT eligibility decisions. The ability and ability score, or above 100 and lower
uses a severe discrepancy as the sole achievement tests should, of course, than the ability score. If the ability
criterion to exclude a child, it has vio- be reported with the same statistics score is lower than the mean, the
lated this clause of IDEA. The (grade equivalents are deceptively no r mally expected achievement
De p a r tment of Education indicated an simple and may misrepresent the score will again fall between the abil-
intent to review current research on severity of a child’s problem (e.g., ity score and the mean, higher than
le a r ning disabilities and to make Willis & Dumont, 1998, p. 223). the ability score. In this instance,
changes to the definition, but as of May, Therefore, they should be used with the discrepancy would be from an
1999, it had not done so, saying this in caution. However, they can some- expected achievement score higher
the appendix to the regulations: times be used more effectively than than the ability score. The lower the
standard scores in documenting ability score, the more the expected
“[T]he Department plans to carefully progress (e.g., the 9th Circuit Court achievement score will exceed it.
review research findings, expert in a recent case wrote, "HISD argued The amount of regression toward
opinion, and practical knowledge that passing marks and advancement the mean is determined by the cor-
over the next several years to deter- from grade to grade were sufficient relation between the two measures.
mine whether changes should be indicia to satisfy the IDEA). And on The lower the correlation, the
proposed to the procedures for this dispute the district court is cor- greater the regression. Contrary to
evaluating children suspected of rect that a disabled child's develop- general belief, the corre l a t i o n
having specific learning disabilities.” ment should be measured not by his between measures of ability and
relation to the rest of the class, but achievement is modest. In one
Many teams and districts are rather with respect to the individual example, Hammill and McNutt
tempted to establish mathematical for- student, as declining percentile (1981) reviewed all corre l a t i o n a l
mulas to identify students with specific scores do not necessarily represent a studies between reading and other
le a r ning disabilities. Some commercial- lack of educational benefit, but only variables in 25 journals from 1950
ly produced computer scoring pro- a child's inability to maintain the through 1978. Their meta-analysis
grams automatically calculate discrep- same level of academic progress found, among other things, that the
ancies. These formulas attempt to mea- achieved by his non-disabled peers " median correlation between WISC
sure the severity of the discrepancy (Houston Independent School and WISC-R Full Scale IQs and read-
between ability and achievement. We District v. Caius, 2000).
advise that such formulas not be used
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Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
ing scores, based on 34 coefficients IDEA, at §300.535, reminds teams to Flanagan & Ortiz, 2001; McGrew &
in 13 studies, was only +0.44. This examine the child's ability, without Flanagan, 1998). Differences among
means that about 19% of the vari- allowing the very disability you might content, formats, and scores among
ance in reading scores could be be identifying to impact the scores: academic achievement tests are even
accounted for by WISC(-R) Full Scale more extreme. Discrepancy formu l a s
IQs. The remaining 81% of the vari- (e) Tests are selected and adminis- can lead to bizarre efforts to find
ance in reading scores was attribut- tered so as best to ensure that if a combinations of IQ and achievement
able to other factors! test is administered to a child with tests that will confirm someone's
impaired sensory, manual, or speak- belief that the student does, or does
3. The measurement of a discrepancy ing skills, the test results accurately not, have an educational disability.
between ability and achievement reflect the child's aptitude or
should take into account the achievement level or whatever other Cl e a r l y , the mathematical process
Standard Error of Measurement of factors the test purports to measure, of rigidly determining severe discrepan-
Differences (SEmdiff). SEm bands rather than reflecting the child's cies is not a simple matter. In fact, we
around both scores, preferably offset impaired sensory, manual, or speak- do not believe that it is worth pursuing.
to reflect regression toward the ing skills (unless those skills are the Rigid adherence to any formula will
mean can provide a rough approxi- factors that the test purports to of ten violate the most important con-
mation with less mathematics. Any me a s u r e ) . sideration of all: to be considered to
fo r mula devised by a team would have an educational disability, a student
have to yield a band of discrepancies 6. The achievement test scores may not must require a program of special edu-
rather than a single cut-off number. be the most valid measures of a stu- cation. In this respect, learning disabili-
Ho w e v e r , such bands are arbitrary dent's achievement. Some students ties are no different from other educa-
cut-offs, so provisions would still p e rf o rm poorly on standardized tional disabilities. For instance, one stu-
need to be made for considering tests, but succeed in class and do not dent with an intellectual disability
cases falling at the edges of such require special education servi c e s . (mental retardation) with a certain IQ
bands. Other students may do well on indi- score will require special education ser-
vidual, standardized tests, but still vices and will have an educational dis-
4. If the team were considering all have legitimate special education ab i l i t y . Another student with the same
seven achievement areas blindly, the needs because they cannot function score on the same test will not. The
size of the differences required for in class without a program of special same consideration applies to students
significance would be slightly higher education. It is not reasonable to use with various Snellen vision ratings or
than that needed for a single, prede- the standardized test scores as the better ear average hearing ratings.
te r mined achievement area, based only measures of achievement. Some students with a given score will
on referral data. The more potential Measures of classroom perfo r ma n c e require special education and some will
discrepancies being considered, the must also be considered. not. Only those who require a program
greater the possibility of a significant of special education have educational
discrepancy occurring by accident, 7. Tests are not interchangeable. Two disabilities. No mathematical formu l a
by pure chance. intelligence tests, even from a should be used to deny services to stu-
District's "approved" list (another dents who truly require a program of
5. It is highly improbable that the most unwise practice, unless exceptions special education. No mathematical for-
valid measure of ability for a learni n g are allowed for special circum- mula should be used to falsely "label" a
disabled student is the Full Scale IQ stances), are not likely to yield the student who does not require special
(GCA, GIA, etc.). The same learni n g same score for the same student. In education services, even if the student
disabilities that depress achievement fact, the same test probably will not may require accommodations under PL
are likely to depress scores on at give the same score to the same stu- 94-142 (U.S. Congress, 1975). “The
least some parts of ability tests as dent twice in succession. Consider, de t e r mination of an educational handi-
well (Mark Penalty ). The team is for example, a hypothetical student cap is a Team decision, not an exercise
evaluating discrepancies between with a significant strength or signifi- in arithmetic” (Willis & Dumont, 1998,
achievement and levels of intellectu- cant weakness in fluid reasoning p. 112).
al ability, not overall intelligence. (Gf). The strength or weakness
Co n s e q u e n t l y , the team should ofte n would have almost no direct effect The question as to whether a
use measures of intellectual ability on the Wechsler Scales, but would child does or does not have a severe
other than full scale scores (IQs, be central to one-seventh of the WJ- discrepancy is not as straightforward as
GCAs, GIAs, etc.). R or WJ III, and one-third of the DAS it might appear. While mathematical
(Flanagan, McGrew, & Ortiz, 2000;
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Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
fo r mulas offer a statistical method for does not include learning prob-
calculating the severity of a child's dis- There are other issues that may lems that are primarily the result
cr e p a n c y , they do not take into account be argued before a hearing officer of visual, hearing, or motor dis-
some of the other factors that a team when a child does not appear to meet abilities, of mental retardation, of
might (must) consider in reaching its state criteria. Brody v. Dare County, a emotional disturbance, or of envi-
de t e r mination. At the Learni n g No r th Carolina case argued by Pet e r ronmental, cultural, or economic
Disabilities Association of North Wright, an eminent attorney in the area di s a d v a n t a g e .
Carolina (LDANC) website, they say: of special education law, included the
following (Findings of Fact provided by On first glance, this section would
The Department of Education, in a state hearing officer): appear to exclude, among others, any
its letter to LDA of North Carolina, child who is cognitively impaired (men-
wrote that it is "generally" appropriate Dyslexia is a learning disability for tally retarded). However, the clause
for the multidisciplinary team to the purpose of the Individuals with contains the operative phrase "primari-
include in its written report (to deter- Disabilities Education Act, 20 U.S.C. ly the result of . . .." A child with low
mine eligibility) information regarding Section 1400 et seq. (IDEA), and a cognitive scores may in fact be a child
"outside or extra" instructional help or child with special needs pursuant to with a disorder in a basic psychological
support which "may indicate the child's North Carolina’s Special Education Act, process and more appropriately identi-
current educational achievements G. S 11C, Article 9 (State Act). fied as LD than MR. Also, a child with
reflects the service augmentation, not mental retardation may additionally
what the child's achievement would be The "Matthew Effect" refers to have a disorder in a basic psychological
without such help." Such information individuals, who have difficulty learn- process that depresses the child's
should be considered by the team in ing to read, and whose reading prob- achievement in one academic domain
deciding if the child has "a severe dis- lems are not remediated effectively significantly below even the low expec-
crepancy between achievement and early in their school career. Because of tations from the child's measured levels
ability that is not correctable without this these children often remain signifi- of intellectual ability and below the
special education and related services." cantly behind peers in reading skills. If child's levels of achievement in other
If , for example, a student with an IQ of an individual fails to learn well in first, domains. Such a child would have both
125 and significantly lower achieve- second, and third grade—which are mental retardation and a specific learn-
ment scores maintains passing or even critical grades—then these individuals ing disability, because the excessively
exemplary grades, the team should do not read the amount of material low achievement in the one domain
consider whether or not the student that is necessary to continue to devel- was caused by the processing disorder:
achieves only because of special assis- op good reading skills. that particular "learning problem" was
tance or support. If the student not "primarily the result of . . . mental
receives no special help, the multidisci- • Q. When determining a severe re t a r d a t i o n . "
plinary team might conclude that stu- di s c r e p a n c y , doesn’t the child have
dent would not need special educa- to have at least average ability? States have run afoul of OSERS
tion. If, on the other hand, the student when they have written state regula-
has tutoring several times a week, There are some misconceptions tions that are more restrictive than the
works for three to five hours each that exist about the regulations regard- federal criteria in CFR Section 300.541.
night on homework with parental ing learning disabilities and a level of Wisconsin's original definition of a spe-
assistance, and must have extra time to cognitive functioning, some that are cific learning disability was confusing,
complete tests in order to pass or even codified into state regulations. IQ and led some teams to conclude that
maintain a certain grade level, that stu- is not an exception to eligibility. ot h e r wise qualified children weren't eli-
dent might be considered to have a Whether a child’s IQ is high or low, the gible because they had IQs below 90,
"specific learning disability." His/her team must still consider whether he or and other teams to conclude an other-
grades may reflect all the assistance the she meets the eligibility criteria in wise eligible child under the federal
student is getting rather than the stu- 300.541. (Letter to Ulissi, OSEP, 1992). statute was not eligible in Wis c o n s i n
dent's actual achievement level. There is no place in IDEA that necessi- because there was only one area of dis-
[Reference: Letter of Clarification from tates an IQ level for classification as a cr e p a n c y .
Thomas Hehir, Director, Office of child with a learning disability. IDEA '97
Special Education Programs (OSEP), to Final Regulations, Subpart A §300.7 An audit of their public school
Ms. Patricia M. Lillie, and Rebecca (c)(10)(ii) does note: systems showed that while most
Felton, Ph.D., Learning Disabilities schools were in compliance, some
Association of North Carolina, Inc., teams believed (1) children with IQs
dated April 5, 1995.] (ii) Disorders not included. The term
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Yes, Virginia, there is a Severe Discrepancy Clause, but is it Too Much Ado About Something?
below 90 could not qualify for servi c e s , the performance of the child le a r ning experiences which have
or (2) that if children only qualified in against those criteria, but they also negatively impacted the scores. IQ
one area they could not be served, or require the evaluation teams to scores, depressed by a disorder in
(3) that if a child had only a discrepan- use professional judgment in mak- basic psychological processes, can-
cy , s/he was automatically eligible with- ing individual eligibility determina- not be used in any ability-a c h i e v e -
out first determining a need for special tions.” ment comparisons. If the team
educational services. They issued the believes that the same disorder in
following statement to the local educa- • Q. So what are the issues that a basic psychological processes that
tional agencies (LEAs) as part of their MDT might consider when deciding has caused low achievement has also
co r rective action plan (a plan necessary whether a child qualifies as a child depressed an IQ score (Mark
for them to continue receiving special with a specific learning disability? Penalty), the team may consider this
education dollars from the federal gov- in the explanation of no discrepancy.
er nment, ED having frozen their It is probably not possible to list 5. If the multidisciplinary team deter-
funds): ALL the factors that a team might con- mines that the assessment measures
sider in reaching a decision, but court do not accurately reflect a discrepan-
“If an M-team determines that a child decisions and OSERS letters have given cy between achievement and ability,
has a significant discrepancy us some suggestions. the team should state in writing the
between functional achievement assessment procedures used, the
and expected achievement in one 1. Neither a low IQ score nor a high IQ assessment results, the criteria
or more of the areas listed at 34 score (see above) may be used to applied to judge the importance of
CFR 300.541 and needs special edu- exclude a child from consideration any difference between expected
cation and related services because as LD. http://www.l d a n a t l . o r g / b u l - and current achievement, and
of that significant discrepancy, the le t i n s / A C_ 1 _ 9 6 . h t m l whether a substantial discrepancy is
child may not be excluded from LD 2. The absence of a numerical severe present that is not correctable with-
eligibility because: 1) The child's discrepancy cannot, alone, be used out the provision of special educa-
intellectual capacity is below a par- as the criterion for excluding or for tion.
ticular level (unless the child is including a child from or in special
determined to have a cognitive dis- ed u c a t i o n . Ad d i t i o n a l l y , here are a few things
ability), or 2) the child has a signifi- 3. It is "generally" appropriate for the that a team can consider in determi n -
cant discrepancy in only one of the mu l t i d i s c i p l i n a r y team to include in ing if there is a severe discrepancy:
academic or readiness areas identi- its written report (to determine eli-
fied at 34 CFR 300.541.” gibility) information regarding "out- A. How much help did the student
side or extra" instructional help or receive (within the context of OSEP's
Wisconsin's interpretation, unchal- su p p o r t which "may indicate the le t t e r , referring to the help provided
lenged by OSERS, is summarized in the child's current educational achieve- by parents, but certainly a standard
following paragraph from their letter to ments reflects the service augmenta- that could be extrapolated to chil-
Thomas Hehir, then OSERS' director: tion, not what the child's achieve- dren who, for example, no longer
ment would be without such help." had a severe discrepancy after three
“M-teams in Wisconsin generally Within context, for example, a child years of intensive servi c e ) ?
recognize that the criteria con- need not have failing grades, if he or B. Did the child's IQ scores go down as
tained in both the federal regula- she is passing only as a result of spe- a result of the Matthew Effect or
tions and the state rules must cial service or support such as tutor- Mark Penalty? [In theory, if the team
guide an evaluation, but do not ing twice a week or a parent who believes that the child's FSIQ went
direct an M-team to make a finding spends three to five hours with the down as a result of his or her having
of LD eligibility or ineligibility for a child on homework each evening. failed to thrive academically; that is,
particular child. Both the state and 4. The team should understand and the child wasn't exposed to the same
federal criteria are permissive in ta k e into consideration both the things as other children of the same
that they require evaluation teams Mathew Effect (Stanovich, 1994) and age and intelligence—then it can
to consider certain eligibility crite- the Mark Pen a l t y . If there is prior evi- infer higher potential, especially if
ria, but they do not require an dence of higher IQ, and present previous test scores were higher.
evaluation team to reach a conclu- testing shows a decline (Mathew There is a potentially interesting
sion solely because the child meets Effect) that results in the child being Catch 22 (Heller, 1961) there; the
or fails to meet those stated crite- ineligible, the team may consider team would also have to rule out
ria. The rules require evaluation whether the disability may have inappropriate instruction as being
teams to consider the criteria and resulted in significantly different primarily causal.]
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