Agins & Gilman LLC
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Updated 6.26.17

Shoe of the Month Blog 
November 2, 2016:

The Third Grade Reading Guarantee- an Ohio Myth

In an effort to address poor proficiency scores in reading, Ohio passed a law requiring that students who are not proficient in reading by the end of third grade receive intensive intervention in language arts. Proficiency was to be determined by the child’s score on statewide testing required by law. Unfortunately, what started out as a good idea has not had any impact on proficiency scores and in fact, has turned into a sad game played at the expense of students.  

The TGRG requires that a student who does not obtain a score set by the State Board of Education by the end of third grade must be retained in third grade and provided with intensive instruction. The law requires that this instruction can be provided by either the school district or an outside provider and must equal at least ninety minutes per day. The Ohio Department of Education has a guidance manual detailing the requirements, and touts school districts whose promotion rate for students has increased since the TGRG has gone into effect. Let’s take a look at that.

Parents know that scores on statewide testing place their child in one of five ranges of performance: accelerated, advanced, proficient, basic and limited. What they probably do not know is that for the 2015-16 school year, the “cut” score for promotion to the fourth grade set by the State Board was so low that students who scored in the limited range could still be promoted. That’s right. Your child could be promoted even though his or her literacy skills are several grade levels behind their peers. The law allows the Board to do this and it must raise the cut score every year until such time as the score reaches the proficient range. At the rate it is going, that may not happen in our lifetime.

Parents may also not know that students who have previously been retained are not subject to the TGRG. What this means is that if your child was held back in any grade prior to fourth grade, they are not entitled to the benefits provided by the Guarantee. Likewise students identified as having significant cognitive impairments and who take the alternate assessment are not entitled to the benefits of the TGRG. Not surprisingly there has been an otherwise unexplained increase in the number of students being held back as well as an increase in those qualifying for the alternate assessment since the TGRG went into effect. Of course if your child is on an IEP or 504 plan, he or she will be exempt from the TGRG if the IEP team decides to exempt them. Again, what that means is that your student will not receive the guaranteed 90 minutes of intensive language arts instruction. While students are still entitled to receive some remediation, for most school districts that means they will receive more of the same programs that failed to enable them to read in the first place. They will not receive services from an outside provider.

While we have been unable to obtain any numbers from the Department of Education as to how many students on IEPs are exempted, our experience tells us it is substantial. The irony of this should not be lost on parents. Students in IEPs who frequently need the most help, are excluded from participation in this “guarantee” that would enable them to get it. Moreover, it is rare to find an IEP even for a student with a reading disability that provides 90 minutes of specially designed instruction in language arts per day.  

The stories we hear about this are always the same. Parents were told of the horrors their child would experience if held back so they agree to exempt their child. What they are not told is that districts only have to retain the student in language arts but otherwise can allow the child to participate in other subjects in fourth grade. Parents are also not told that if they refuse to exempt their child and the child fails to make the cut score they may access services from an outside provider. While the District must choose the provider, many districts have told parents they were not aware of this requirement and could not say who their outside provider was.  

Another “out” allows districts to administer alternative tests to students, sometimes multiple times, in an effort to get them above the cut score so they can be promoted. The upshot of all this is that when a parent sees that their school district has a 99% promotion rate of students to the fourth grade, that number says absolutely nothing at all about the number of students who can read.  

In Akron for example, for the 2015-16 school year, 87% of third graders were promoted to fourth grade, but only 37.9% scored in the proficient range on statewide testing in reading. Even more profound, of eighth graders in Akron only 27% scored in proficient range in reading which does not portend well for students moving up through the grades. Let’s remember too that the determination of what counts as proficient in Ohio is substantially less than what counts as proficient in other states. In 2013 Ohio’s standards for what counted as proficient were 49th out of 50 in a comparison done by the National Assessment for Educational Progress (NAEP) also known as the nation’s report card. What that means is that students in places like New York and Massachusetts who are deemed proficient in reading are reading 3-4 grade levels ahead of students considered proficient in Ohio.

What does this mean for your student who is in early elementary school? Don’t let your child be retained in grades K-3 unless you know the consequences of doing so, including foregoing your right to outside services if he is unable to read by the end of third grade. Don’t let the district exempt your child from the TGRG if he is on an IEP without exploring what he might be able to access from the district if he does qualify. Unless your child is severely impaired, do not agree to allow him to take the alternate assessment which is another “out” for the district.  

The TGRG was supposed to assist students who were not progressing in reading because statistics show that students who cannot read by the end of third grade have higher dropout rates and higher rates of incarceration. It was not intended to punish students who had not learned how to read. It was intended to hold school districts accountable for failing to address reading deficiencies. Instead it has become just another source of paperwork for parents and teachers, benefitting nobody.
November 21, 2106:


The most recent report cards for school districts in Ohio show an abysmal record for the overwhelming majority of Ohio’s school districts. And while districts complain about changing tests, too many tests, etc., the bottom line is that if a child is in the third grade, his or her reading ability should not depend on who is writing the test. That child should be able to read third grade level material regardless of who wrote it. Moreover, the score set by our State Board of Education for third graders to be promoted is in the “limited” range, which means your child doesn’t need to be able to read much to be promoted.

But what about those students who test in the “Basic,” proficient or even accelerated range in reading? How can you tell if they are really reading? Because we know that despite our tendency to pat ourselves on the back for how awesome our schools and teachers are, many Ohio students reach postsecondary education unprepared to do college level work. Those students must take remedial classes, and many drop out before they get a degree. The State is now considering reducing graduation requirements to avoid a crisis where more than 30% of high school students are not on track to graduate. And at the elementary level, in the last reporting, 45 % of Ohio third graders were below proficient in reading.

So how can you tell if your child is doing as well as the district says he is doing? We have seen school districts who routinely give students “A”s on their report cards despite their knowledge that the student cannot do grade level work. First find out what reading program your child is using. Most elementary schools now have adopted curricula which is mandatory for K-8. In many cases, if a district is using Leveled Literacy Intervention, Literacy Collaborative, Reading Recovery or Benchmark Literacy, those programs are the only reading materials your child will receive. You may be told your child is reading at a specific level, generally described by a letter designation. Level M, for example, coincides with a specific grade level. Most leveled programs are aligned as far as what the individual levels signify. So Level M in Leveled Literacy will coincide with Level M in Benchmark, etc.  

Most of these programs are referred to as “guided” or “blended” reading programs. The blending refers to incorporation of a variety of reading techniques. And the school district will steadfastly assert that these programs are “research based.” Unfortunately the only research supporting the efficacy of these programs has been done by the publishers or originators of the program. Obviously those folks are not going to say anything other than that every child can benefit, right?

The actual research says otherwise. Most early readers need to have explicit phonics instruction in order to establish the necessary foundational skills to become strong readers. For students with dyslexia and other learning disabilities, there is simply no evidence that blended reading programs enables these students to read. Without explicit instruction to assist with phonological awareness (hearing and manipulating sounds) and phonics (connecting sounds with letters), those students will continue to struggle all the way through school. Many will drop out. Even non-disabled students frequently struggle with learning to read when not given a strong phonetic basis for their reading skills.  

Then there’s the focus on sight word recognition. Just remember that you cannot learn phonics from learning sight words. Sight words are limited to those words that don’t follow a rule or pattern and therefore must be memorized.  

What can you do about this? Well for starters you can read with your child. If the district says your child is at grade level, go to the library and take out a book at that level. Give it to your child. If he or she is struggling to read it, then you may have a problem. One of the issues we have with guided reading programs is that districts often do not require any reading other than what is in the program. Because the students are guided through the reading, there may not be other indicators that students really aren’t reading independently until you get the statewide assessment results and discover that the students in your school district cannot read third grade material. Again, many districts do not require students to read anything outside of their own adopted reading program, so teachers think their students are doing better than they are. In some cases we have seen fourth grade teachers who read all the content areas directly to their students, perhaps because their students are unable to read it on their own.

If your child is on an IEP and you think he or she is not reading, ask the district to conduct a standardized assessment to see how they are really doing. If you have the resources, have your child tested by an outside evaluator. If they are able to read, then great. If not, you need to call a meeting of the IEP team to make sure the IEP contains explicit instruction in the areas of need. Make sure that the instruction is really addressing what is necessary and not just paying lip service.

Your child’s ability to become a strong reader will impact him or her throughout their life. By the time a student is in high school, it is often too late to redress all the deficiencies. So be vigilant and ask the hard questions. You have a right to do that.  
December 19, 2016:


Two recent cases from the Sixth Circuit Court of Appeals (the federal circuit where we are) have proven to be sobering statements regarding the constitutional and other protections afforded to students with severe disabilities who are abused by a teacher in a public school. The first case, Domingo v. Kowalski,, involved a teacher at the North Point Educational Service Center in Toledo. In that case, the teacher was alleged to have done the following: tied a nonverbal autistic child to a gurney and put a gag in his mouth to keep him from spitting; tied a nonverbal autistic child to a toilet seat with a man’s belt she brought from home; and placed a nonverbal autistic first grader on a potty chair in her classroom, including during mealtimes and once took the potty around to show the other students when this child produced a bowel movement into it. The aide was fired; the teacher remained.

The parents of these children, who were unaware that their children were being mistreated by this teacher, filed an action against her and the Service Center when one of the aides spoke up. They alleged that the students’ rights to substantive due process under the Fourteenth Amendment to the Constitution had been violated. The district court actually characterized this teacher’s behavior as abusive, but both the district court and the Court of Appeals found no constitutional violation. The Court said that because the teacher had a “pedagogical” purpose for her actions, in other words, she intended to teach something, there was no violation. This pedagogical purpose kept her actions from “shocking the conscience” of the Court which is part of the standard of the Court’s review. Because these students were not toilet trained, the Court said, her intention to keep them from soiling themselves was a legitimate teaching objective when she tied them to the toilet or kept them on a potty chair in full view of their classmates. By the same token, tying and gagging a student who spits was legitimate because this child was not complying with repeated teacher requests to stop self- injuring and spitting, and the teacher said she “needed to be firm.”

Equally disturbing was the Court’s decision that the Plaintiffs had not produced any evidence of “serious” injury and their claim must therefore fail. Again these students could not describe to anyone how they felt about the treatment they endured because they are all nonverbal. It certainly makes one wonder whether this Court would treat nondisabled students similarly, right? Is it ok to tie a nondisabled student to a toilet if he has a toileting accident?  

In Gohl v. Livonia Public Schools,, a three year old child with hydrocephalus, who was medically fragile and severely brain injured, knocked a toy off a table. His special education teacher, Ms. Turbiak, grabbed him by the top of his head, yanked his head back “aggressively” and screamed in his face. In a split decision, the Sixth Circuit once again found that this teacher had acted with intent to teach this severely disabled child to clean up after himself. “Requiring a child to clean up a mess he made not only fits with a common-sense understanding of what teachers typically do, but it also fits with the demands of J.G.’s Individualized Education Program—as provided under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400. Whatever one thinks about the timing or manner in which Turbiak used this technique here, no one can credibly deny that Turbiak had a pedagogical purpose in using it.” The evidence in the Gohl case established that Ms. Turbiak’s students were “being force-fed while crying and gagging, being screamed at in their faces, being violently grabbed and pushed to the ground, being put in restraints made of potato chip cans, having their chairs pulled out from under them, or being otherwise humiliated and treated like something less than human….” Again, the Court found that this teacher’s behavior did not violate this child’s constitutional right to substantive due process, and further found that there was insufficient evidence to show that the behavior was disability-based discrimination. Case dismissed. No reasonable jury, the Court concluded, could reach a decision other than the one it had reached. Judge Clay of the Sixth Circuit wrote a scathing dissent in Gohl which is worth reading.  

What does this mean for your child? Well, for starters, nothing good. Obviously if a teacher abuses a student with a disability, and then declares that he or she had a teachable moment in mind, it largely protects the teacher from being sued for violation of the child’s constitutional or other federally protected rights. Where is the line when abuse becomes actionable? Though it is hard to say from reading these cases, any actionable case would probably require some physical injury that involves bleeding, and even then it might not pass muster. But that does not mean you cannot seek damages against a teacher who abuses your child. But you would have to file the case in state court, and would have to allege some sort of reckless misconduct or even assault. In such cases, though, you would have a more difficult time bringing the claim against the school district.  

When the right case comes along though, the civil rights bar will ask the Court to revisit this issue because the incorrect standard was applied. The standard is not whether the teacher acted with malice, which is virtually impossible to prove particularly where the teacher claims she was trying to instill some discipline into the class or the child. Instead, the Supreme Court has distinguished cases where police officers, for example, have to make split second decisions in order to protect themselves and the public. But where an officer has the ability to deliberate about how to act, and then proceeds to engage in abusive or violent behavior, that conduct is no longer protected. Disabled children who cannot speak up to protect themselves, or tell their parents what has happened to them, require more, not fewer, protections than a suspected criminal, or even a nondisabled child. The right to bodily integrity, particularly for a severely impaired individual, needs to be determined under the proper standard. The standard applied in these cases is not the right one.