The U.S. District Court for the Northern District of California will hold a hearing for the case on Nov. 4 to finalize the settlement. Credit: Shutterstock

Berkeley Unified School District has agreed to settle a class-action lawsuit claiming that district failed to identify students with reading disorders and provide necessary accommodations for them. Under the terms of the proposed settlement agreement, Berkeley schools will need to offer universal screening for reading disorders and implement new programs for teaching reading. The changes will be implemented over the next three years.

“I have represented individual students in BUSD who struggled to learn to read and came to believe there were systemic issues within BUSD’s existing programs that could not be solved on a case-by-case basis,” said Deborah Jacobson, an attorney with Jacobson Education Law who represented four students and their parents in the case.

The lawsuit, filed in federal court in 2017, claimed that Berkeley Unified did not identify the needs of students with reading disorders, including dyslexia, and then did not provide adequate services for those students.

After more than four years of litigation, both parties reached an agreement in January 2021, which the court preliminarily approved July 8. The U.S. District Court for the Northern District of California will hold a hearing for the case Nov. 4 to finalize the settlement.

Under the proposed settlement agreement, Berkeley Unified will implement a universal screening program for students with suspected reading disorders, adopt new reading intervention programs and use a new model for identifying students for special education. All these changes will be accompanied by professional development for staff, supported by nationally recognized consultants and monitored by quarterly reports to the school board. (Berkeley Unified has also agreed to pay $350,000 in attorney’s fees.)

“This is going to be a big, wide-scale change for the district,” said Malhar Shah, a special education attorney for Disability Rights Education & Defense Fund representing the students in the case. “It means that students with reading disabilities will graduate high school and be ready to move on to the next step in terms of writing, reading, literacy skills. It’s an exciting prospect.”

While the district has agreed to implement these interventions, it continues to “deny that there is any factual or legal basis for Plaintiff’s claims” that the district has violated state or federal law in serving students with reading disabilities, according to the agreement. Superintendent Brent Stephens said he believes these changes will result in “improvements for reading instruction in Berkeley Unified.”

Both parties decided to settle the case to “avoid the expense and uncertainties” of continued litigation, according to the proposed settlement.

A new way of teaching reading

Research shows that identifying potential reading disabilities early is key to effective intervention and academic success throughout high school.

“If a child is not reading at grade level in fourth grade, their educational house is on fire,” said Cheryl Theis, an advocate with the Disability Rights Education & Defense Fund. Theis was not involved with the lawsuit.

Students who don’t receive support early on “suffer from low self-esteem, anxiety and depression. A lot of them just give up on school,” said Lori DePole, co-director of Decoding Dyslexia California, a volunteer-led grassroots organization advocating for students with dyslexia.

With the district’s new universal screening plan, all students in kindergarten through 2nd grade will take a diagnostic test called DIBELS twice a year that identifies those at risk for reading disorders. DePole hopes this is a precursor for changes to come at the state level. Senate Bill 237, which would require California schools to implement universal dyslexia screening by 2022, passed unanimously in the Senate in June but has not reached the Assembly yet.

In addition, under the new Literacy Improvement Program outlined in the settlement, the district will implement a program called FastTrack Phonics for teaching reading to all students. (Stephens said the district already began using FastTrack two years ago). For students in need of interventions, the district will implement Wilson Reading Systems or Slingerland, both of which are in line with standards set by the International Dyslexia Association.

“We haven’t been teaching kids to read explicitly. That’s the problem,” said Kareem Weaver, who sits on the education committee for the Oakland branch of the NAACP. He said these changes mean more support for struggling readers.

“Once implemented, the Literacy Improvement Program promises a more sustainable, accessible, and equitable solution for all students who struggle to learn to read in the BUSD,” Jacobson said.

The settlement also prohibits the district from using its current intervention programs, including Reading Recovery, for students with suspected reading disabilities, except in special circumstances.

Maria, whose name has been changed to protect her anonymity, said she spent the better part of last year pushing for the school district to evaluate her third-grade son for a reading disorder and provide the support he needed. Her son now has an IEP with accommodations for dyslexia and dysgraphia, but she hopes the settlement will benefit parents who don’t have the resources to fight tooth and nail for their kids’ education.

“I know that there are many other children whose parents aren’t as persistent and as squeaky of a wheel as I am,” Maria said.

“My hope about the settlement is that it will deal with these equity issues of who gets help and who doesn’t,” Theis said.

Superintendent Stephens said the universal screener is a “neutral” test that he expects will identify “roughly a proportionate number of students as having some kind of phonological processing issue in each of our demographic categories.” Black students are currently over-represented in Berkeley’s special education program — they made up 14% of BUSD’s student population in 2020-21 but 27% of students with IEPs— but Stephens said the universal screener should not exacerbate the disparity.

“Black kids are overrepresented for behavioral disorders. They are not over-represented for dyslexia,” said Weaver, who also leads a Bay Area nonprofit supporting reading initiatives called Fulcrum. Weaver said this settlement means more targeted academic support for all readers.

Beyond Berkeley

Advocates say the lack of support for students with dyslexia is a problem across the state. With this settlement, they hope that other districts will feel compelled to implement similar interventions.

“Districts are going to get a wake up call,” Weaver said. “This means that people aren’t going to keep playing patty cake with the districts.”

Still, the proposed settlement agreement is not a guarantee of adequate services. Implementing a plan is different from writing it out on paper, and it will take time for teachers to learn how to teach a new reading curriculum, especially when it strays from what they were taught in teacher’s college.

“[The settlement] is not going to help you win hearts and minds. People believe what they believe and they’re going to do what they’re going to do,” Weaver said. “That comes from leadership. That comes from change management. That comes from the superintendent, school board and chief academic officers actually making the case [for this reading model] to their teachers, to their parents, to their principals.”

Maria is “cautiously optimistic” that the settlement will make a big difference for students with suspected or existing reading disorders, but she acknowledges that the burden teachers have to bear in learning a new instructional model is significant.

“We keep on putting these mandates on these teachers and we never take anything away,” Maria said. “They’re being put in a tough spot with this new curriculum and new literacy action plan.”

Maria’s own son now has reading disorder interventions outlined in his IEP. But she doesn’t know how long it will take before the district can adequately meet his needs, even once the proposed settlement is finalized.

“They haven’t met those legal obligations yet, and I don’t know if they will be capable of doing so,” she said.

Correction: Senate Bill 237 passed unanimously in June, but only in the Senate. It has not yet reached the Assembly.

Ally Markovich, who covers the school beat for Berkeleyside, is a former high school English teacher. Her work has appeared in The Oaklandside, The New York Times, Huffington Post and Washington Post,...