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Paul W. Bennett is the director of Schoolhouse Institute and the author of The State of the System: A Reality Check on Canada’s Schools.

A new literacy reform tool is emerging that enables parents to seek remediation when schools fall short in providing effective instruction in reading and writing: suing for “educational malpractice.” These lawsuits, which claim that a school hasn’t provided an adequate education, are becoming more common across the United States and may well surface here in Canada.

In 2021, the Berkeley Unified School District (BUSD) agreed to settle a lawsuit claiming it failed to provide an appropriate education for four students experiencing reading difficulties associated with dyslexia. It’s a sign of a significant shift in the case law pertaining to educational malpractice. While the U.S. and Canada have distinctly different civil law traditions, the possibility of this sort of lawsuit taking place in Canada has increased in the wake of last year’s Ontario Right to Read public inquiry findings, which determined that Ontario schools have failed in their responsibility to teach children to read.

The key findings of the Ontario Human Rights Commission had parallels with the Berkeley Unified School District class-action lawsuit settlement. Without accepting legal liability, the district implicitly accepted the claim that it failed to identify students with reading disorders and to provide necessary accommodations for them. Berkeley schools are now required to offer universal screening for reading disorders and to implement programs for reading instruction based upon the “science of reading” and structured literacy.

Under the settlement, BUSD agreed to implement major changes encompassing universal screening, reading intervention programs and the model for identifying students for special education. In addition, the school district agreed to provide professional development for teachers, hire external literacy consultants and monitor progress through quarterly reports. With BUSD’s new universal screening plan, all students from kindergarten to Grade 2 will take a diagnostic test called DIBELS twice a year that identifies those at risk for reading difficulties. BUSD also agreed to pay US$350,000 in attorney’s fees.

The latest research based upon the “science of reading” is gaining traction, fuelled by the success of Emily Hanford’s award-wining Sold A Story podcast. A new consensus is also emerging that early intervention to identify reading disabilities and effective instruction are critical to succeeding in high school. Lori DePole, co-director of Decoding Dyslexia California, explained why: Students who don’t receive support early on, in her words, “suffer from low self-esteem, anxiety and depression. A lot of them just give up on school.”

The program outlined in the BUSD settlement is fully aligned with the Ontario Right to Read recommendations. In California, a universal program known as FastTrack Phonics has been piloted in the state. For students in need of specific interventions, they are implementing the Wilson Reading System, in line with standards set by the International Dyslexia Association, and specifically recommended for Ontario. Current intervention programs for students with suspected reading disabilities, including Reading Recovery, will be phased out except in special circumstances. That too is happening in Ontario and elsewhere, with early literacy reforms proposed and currently in process.

The lack of support for students with dyslexia is a critical problem far beyond California. While the BUSD settlement was a tremendous breakthrough, system-wide initiatives, even with legal agreements, are no guarantee of adequate educational services. In the case of Ontario, implementation of the Right to Read recommendations ran into stiff resistance from literacy consultants and professors in many of the faculties of education.

Early literacy reform advocates such as Mount Saint Vincent University professor Jamie Metsala, who championed the Six Pillars of Effective Reading Instruction guidelines in Nova Scotia, are well aware of the challenges. Implementing a plan is different from putting it in writing or posting broad frameworks and general strategies. It takes time for changes to take hold and for teachers to learn how to teach a new reading curriculum, especially when it deviates from teaching methods promoted in many faculties of education.

Cheryl Theis, a California advocate for reading reform with the Disability Rights Education and Defense Fund, has rung the alarm bell: “If a child is not reading at grade level in fourth grade, their educational house is on fire.” By that standard, fire alarms must be going off in elementary schools from province to province across Canada. Provincial leaders and school boards would be wise to respond proactively, rather than wait for legal action to spur them into action.

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