State Laws for RTI: An Updated Snapshot
Zirkel, Perry A., Thomas, Lisa B., Teaching Exceptional Children
Professionally, and ultimately legally, the definition of specific learning disabilities (SLD) has been "a long-standing source of controversy, conflict, and crisis" (Kavale & Forness, 2000, p. 239). Yet students with SLD continue to be more numerous by far than any other group receiving special education services (National Center for Education Statistics, 2009; Zirkel, 2007). The long-time controversy concerning the eligibility criteria for SLD reached a high point with the emergence of response to intervention (RTI) as purportedly more effective than the traditional severe discrepancy approach. The 2004 reauthorization of the Individuals With Disabilities Education Act (IDEA) provided that states may no longer require severe discrepancy and that school districts "may use a process that determines if a child responds to scientific, researchbased intervention as a part of" its SLD identification procedures (20 U.S.C. §1414(b)(6)). The resulting IDEA regulations (2008) required states to "adopt" SLD criteria that must not require severe discrepancy, must permit RTl, and "may permit the use of other alternative research-based procedures" for determining SLD eligibility (§ 300.307(a)). This article fills the gap in the literature with regard to the resulting state laws.
The professional literature concerning approaches for determining eligibility for SLD is abundant, in recent years, special education and school psychology journals have been replete with articles concerning RTI. The experts in the field tend to fit on a currently fluid continuum ranging from those who support replacing the severe discrepancy approach with RTI (e.g., Bradley, Danielson, & Hallahan, 2002; Fletcher, Coulter, Reschly, & Vaughan, 2004) to those who advocate reconceptualizing severe discrepancy (e.g., Kavale, 2005; Scruggs & Mastropieri, 2002). The assessment depends in part on the scope, including the legal dimension, of the perspective. For example, although characterizing RTI as having promising potential to improve student learning, Burns, Jacob, and Wagner (2008, p. 274) explained why- from a legal, ethical, and professional perspective-they viewed RTI as "almost indefensible" as the primary way of identifying students with SLD. On the professional side, an articulate minority (e.g., Gerber, 2005) remains opposed to the RTI movement, while the balance of more recent articles tend to either raise implementation and research questions on the supportive side (e.g., Barnett et al., 2006; Fuchs & Deshler, 2007) or- as an entire issue of Psychology in the Schools illustrated (e.g., Flanagan, Ortiz, Alfonso, & Dynda, 2006)recommend combining the two approaches.
Thus far, recognition of the legal issues has not been sufficiently accurate, as revealed by Zirkel's (2006) response to the debate between the RTI advocates (Fletcher & Reschly, 2005; Gresham et al., 2005) and their opponents (Hale, Naglieri, Kaufman, & Kavale, 2004; Kavale, Kaufman, Naglieri, & Hale, 2005; Schrank et al., 2005). The inaccuracy appears to stem primarily from not only the partisan positions of these SLD scholars but also from their insufficiently current and clear legal knowledge.
Although the 2004 amendments of the IDEA moved partially in the direction of RTI by requiring states to at least permit this approach and no longer require severe discrepancy, systematic study of the legal dimension has been largely lacking before and, even more clearly, after this legal milestone. Accurate information requires objective and up-to-date coverage of two separable clusters of primary authority: (a) the binding effect (within jurisdictional limits) of legislation, regulations, and case law; and (b) the marginal non-binding effect of administrative interpretations, such as U.S. Office of Special Education Programs (OSEP) policy memoranda and state education agency (SEA) guidelines.
In the only comprehensive analysis of the hearing/review officer and court decisions specific to SLD eligibility prior to IDEA 2004, Zirkel (2007) found that school districts won the vast majority of these cases, with severe discrepancy being, by far, the most frequent basis for the outcome and the need for special education being a relatively distant second. …