Your school district has an affirmative obligation to “identify, locate and evaluate” all children with disabilities who may be eligible for special education, including those who are attending private schools or are homeless or wards of the court.[[34 Code of Federal Regulations [C.F.R.] Sec. 300.111; California Education Code (Cal. Ed. Code) Secs. 56300-56302.]] This is called “Child Find.” If the district has a reason to suspect that your child has a disability, it has its own duty to conduct a full evaluation to determine eligibility. The threshold for suspecting a disability needing assessment is relatively low. The district must assess a student based on a suspicion of disability and consequent need for services, not whether a student actually qualifies for special education services.[[Student v. Berkeley Unified School District (2014) 114 IDELR 17833.]] It is the evaluation process that determines eligibility for special education for a student with a suspected disability.

You can also make a referral for assessment at any time. Send a written, dated referral to your local school administrator (for example, the principal or special education program consultant); outline your areas of concern about your child’s suspected disability and request an “evaluation” or “assessment.” Follow up with a phone call to ensure the school district is aware of your referral and to remind them of the timeline they must follow. 

Once the school district receives your written referral for assessment, the assessment process must begin. A referral is defined as any written request for assessment by a parent, guardian, foster parent, teacher, or other service provider[[Cal. Ed. Code Sec. 56029.]] Under California regulations, all written referrals shall initiate the assessment process.[[5 Cal. Code of Regulations (C.C.R.) Sec. 3021.]] If you call or speak to school staff to make a referral, the school district must offer to put your request in writing.[[Cal. Ed. Code Sec. 56029 and 5 C.C.R. Sec. 3021.]]

See Sample Letter – Request for Assessment, Appendices Section – Appendix A.

If the district refuses to assess your child following your written request for assessment, they must do so in a written document called a prior written notice where they explain why they are refusing and the information they used to make this decision.[[Cal. Ed. Code Sec. 56500.4]] If you disagree with the district’s refusal, you have the right to challenge that refusal by filing a compliance complaint with the California Department of Education’s (CDE’s) Complaint Management and Mediation Unit or you can request a Due Process Hearing. See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

Under state law, your school district must give you an assessment plan within 15 days of receiving your written referral for special education services. If a referral for assessment is made 10 days or less prior to the end of the regular year, the assessment plan must be developed within 10 days after school commences the following school year.[[Cal. Ed. Code Sec. 56321(a).]] The assessment plan shall:

1. Be in language easily understood by the general public;
2. Be provided in the primary language of the parent/guardian/other education rights holder or other mode of communication used by the parent/guardian/other education rights holder, unless to do so is clearly not feasible;
3. Explain the types of assessments to be conducted;
4. State that no individualized education program will result from the assessment without the consent of the parent/guardian/other education rights holder;
5. Include a copy of the notice of parental rights, which includes an explanation of all procedural safeguards under state and federal special education law;
6. Include a description of any optional dispute resolution mechanisms available under state law; 
7. A description of any recent assessments conducted (including independent assessments and assessment information the parent/guardian/other education rights holder requests to be considered); and
8. Information stating the student’s primary language and proficiency in that language.[[Cal. Ed. Code Sec. 56321(a), (b); 5 C.C.R. Sec. 3022.]]

You have at least 15 days to respond to or approve the assessment plan.[[Cal. Ed. Code Sec. 56321(c)(4).]] When the district has received the signed assessment plan, it has 60 days (excluding days of school vacation of more than five (5) days and days that school is not in session like winter break or summer break) to complete the assessment, and convene an Individualized Education Program (IEP) meeting to determine if the child is eligible for special education, and develop their IEP if they are found eligible.[[Cal. Ed. Code Sec. 56344(a).]] Once the child is found eligible, they may not be exited from special education without an evaluation showing they are no longer eligible.[[20 United States Code (U.S.C.) Sec. 1414(c)(5); 34 C.F.R. Sec. 300.305(e)(1).]]

If a child is referred to special education 30 or less days before the end of a school year, the district must hold a meeting to develop an IEP within 30 days after the beginning of the next school year.[[Cal. Ed. Code Sec. 56344(a).]]

No. A referral for special education assessment must initiate the assessment process and timelines and any use of the student study/success team (SST) process does not affect this obligation. There is no authority in law or regulation to require a pupil go through an SST before a referral for special education may be processed. 

While the law requires the school district to consider and utilize, where appropriate, the resources of the general education program before making a referral for special education[[Cal. Ed. Code Sec. 56303]], the SST process cannot act as a substitute for or delay the special education assessment and IEP timelines without your consent.[[Cal. Ed. Code Sec. 56321(f).]]

School districts may conduct screenings of students to determine instructional strategies for students who are not yet eligible for special education. But screening may not delay a special education evaluation, which must be completed within 60 days of receiving parental consent.[[Letter to Torres (2009) Office of Special Education and Rehabilitative Services [OSERS] 53 IDELR 333.]]

No. However, the law says that an IEP must be developed by the school within 60 days of receiving the parent’s/guardian’s/other education rights holder’s consent to testing, not counting days between regular school sessions, terms, or days of school vacation in excess of five (5) schooldays.[[Cal. Ed. Code Sec. 56344(a).]] If a child is referred to special education 30 or less days before the end of a school year, the district must hold a meeting to develop an IEP within 30 days after the beginning of the next school year.[[Cal. Ed. Code Sec. 56344(a).]] This means that the school must present the parent/guardian/other education rights holder with an assessment plan, obtain the parent’s/guardian’s/other education rights holder’s consent to the testing, conduct the testing, and hold the IEP meeting within whatever days remain in the previous school year plus 30 days in the new school year. Because of this tight timeline, testing may have to be conducted in July or August. For year-round-school students, if a school year ends in June, for example, and begins again in July, testing may have to begin in July so the process will be completed within 30 days of the start of that new school year.

No. Schools do not have to do assessments between “regular school sessions”.[[Cal. Ed. Code Sec. 56344(a).]]

Prior to conducting any assessment, the district must provide you with an assessment plan. The assessment plan must include the type of assessments to be conducted.[[34 C.F.R. Sec. 300.304; Cal. Ed. Code Sec. 56321(b)(3).]] Frequently, several tests will be listed in each area to be assessed because the evaluator may have to determine which tests are most appropriate during the actual assessment as the evaluator gets to know your child better. If you do not understand the type of assessments that are being used, you should ask for clarification. If you believe that certain test instruments are not appropriate for your child, you can request that those instruments not be used and not sign the consent for assessment until you and the district reach agreement on the assessments to be used. If you cannot agree on appropriate test instruments, a due process hearing may be necessary to determine appropriate test instruments.

As a parent/guardian/other education rights holder, you know your child best. You can contribute by observing your child at home, noting the areas of educational concern to you, writing them down, and pointing out those areas to school personnel. See Patterns to Look For, Appendices Section – Appendix F. After you receive the assessment plan, you should review it carefully to determine whether you want additional information about the proposed assessments and/or want to request additional areas that need assessment.

No. An initial assessment may not be done without your written approval unless the district seeks and wins a due process hearing to compel assessment. However, if a parent/guardian/other education rights holder fails to respond to a district’s request to reassess a student already in special education, the district can assess without parent/guardian/other education rights holderconsent. The district must demonstrate that it has reasonably sought consent from the parent/guardian/other education rights holder and the parent/guardian/other education rights holder has failed to respond.[[34 C.F.R. Sec. 300.300(c)(2); Cal. Ed. Code Secs. 56321(c)(2), 56506(e).]] The school district does not need parental consent in order to review existing records as part of a reassessment.

If you receive a written request for assessment from your school district, do not ignore this request. Be sure to respond back to your district even if it’s to tell them you are just considering their request.

You may ask about any areas of the assessment that concern you. Specifically, you may want to know who or how many people will be working with your child during the assessment. How long will an assessment last? How many times will your child be seen? Can you be present during the assessment? Will your child be assessed in the language you speak at home? In addition, you should ask the school district to explain the assessments to be given to your child if you do not understand why the assessments will be administered. The school district should explain any tests that are to be given to your child.

The student must be assessed in all areas related to the suspected disability or disabilities including, where appropriate, health and development, vision (including low vision), hearing, motor abilities, language function, general ability, academic performance, self-help, orientation and mobility skills, career and vocational abilities and interest, and social and emotional status. A developmental history should be obtained, when appropriate.[[Cal. Ed. Code Sec. 56320(f); 34 C.F.R. Sec. 300.304(c)(4).]]

Federal and state regulations make it clear that the evaluation must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked” to the disability category of the child.[[34 C.F.R Sec. 300.304(c)(6); Cal Ed. Code Sec. 56320(f).]] The school district must use technically sound testing instruments that demonstrate the effect that cognitive, behavioral, physical, and developmental factors have on the functioning of the child. In general, the school district must use assessment tools and strategies that provide relevant information directly assisting persons in determining the educational needs of the child.[[34 C.F.R. Sec. 300.304(c)(7).]]

In addition, the district must consider whether your child requires assistive technology (AT) to benefit from instruction. This could mean conducting an assessment for any service or device that directly assists them in the selection, acquisition or use of an AT device. The assessment must include a “functional evaluation” of your child in their “customary environment”.[[34 C.F.R. Sec. 300.6.]] Assessments should assist the parent/guardian/other education rights holder and school district in determining the content of a child’s IEP if they are found eligible for special education[[34 C.F.R. Sec. 300.304(b)(1)(ii)]], and assistive technology devices and services are potential components of a child’s IEP.[[34 C.F.R. Sec. 300.324(a)(2)(v); Cal. Ed. Code 56341.1(b)(5).]] See Chapter 5, Information on Related Services.

Once a district has reason to suspect that a child has a disability, the district must conduct a full and individual initial evaluation that ensures the child is assessed for all areas of suspected disability using a variety of reliable and technically sound instruments. Absent doing that, a district fundamentally violates special education law and will be unable to design an IEP which addresses a student’s unique needs. Cursory assessments also impair a parent’s/guardian’s/other education rights holder’s ability to fully participate in the IEP development process.[[Timothy O. v. Paso Robles Unified School District (9^th Cir. 2016) 822 F.3d 1105; 67 IDELR 227.]]

Yes, you can ask for specific assessments and specific kinds of assessors. The district has the responsibility to assess in all areas related to the suspected disability[[34 C.F.R. Sec. 300.304(c)(4)]] and to ensure that assessments are done by trained and knowledgeable personnel[[34 C.F.R. Sec. 300.304(c)(1)(iv); Cal. Ed. Code Sec. 56320(b)(3).]]

If there is no district employee competent to carry out certain kinds of evaluation, the district may have to contract out for the service or may use the results of any available independent assessment. This can happen in smaller school districts or with less common kinds of assessments, such as auditory processing assessments conducted by an audiologist. In certain cases, for example, the diagnostic services of a physician or other health professional may be required if the child’s suspected disability is medically related and, as a result, the child needs special education.[[34 C.F.R. Secs. 300.34(a)(c)(5).]] See Chapter 14, Information on the Rights of Students with Serious Health Conditions.

No, unless the school district believes that a medical doctor is required to make the diagnosis. In that case, the district must ensure that a doctor performs the evaluation at no cost to the parent/guardian/other education rights holder. A U.S. Department of Education letter makes it clear that:

If a public agency (school district) believes that a medical evaluation by a licensed physician is needed as part of the evaluation to determine whether a child...suspected of having ADD meets the eligibility criteria of the Other Health Impaired category, the school district must ensure that this evaluation is conducted and is at no cost to parents.[[OSEP Letter, February 18, 1992, 18 IDELR 963.]]

If the school district believes that a health care professional other than a doctor can provide the evaluation, then the district may use another provider, as long as all of the protections of the evaluation requirements in federal and state law are met. The school or other staff selected to conduct an ADD/ADHD evaluation must be trained to do so.[[34 C.F.R. Sec. 300.304(c)(1)(iv); Cal. Ed. Code Sec. 56320(b)(3).]]

Parents/Guardians/Other Education Rights Holders do not have to rely solely on the school district’s evaluation for an ADD or ADHD diagnosis. Parents/Guardians/Other Education Rights Holders may provide an independent diagnosis of ADD or ADHD to the school district from a pediatrician, psychologist or other mental health professional. The school district must consider the independent evaluation of your child in the IEP process.

The law specifies that your child must be assessed in all areas related to their suspected disability. If you or your child’s teachers have observed that they have behaviors which adversely affect school performance (for example, has poor impulse control, has problems making friends, or is withdrawn), you should request an assessment of your child’s social and emotional status as part of any assessment plan you sign.[[Cal. Ed. Code Sec. 56320(f).]] You may ask for an assessment in this area even if the district has not identified it as an area for assessment on the assessment plan. The district is required to use technically sound test instruments to assess the relative contribution of cognitive and behavioral factors and physical and developmental factors to the child’s disability and need for services.[[34 C.F.R. Sec. 300.304(b)(3).]]

Federal law contains special procedures for assessing students suspected of having a learning disability. The eligibility determination should be made by a team of qualified professionals and the child’s parents/guardians/other education rights holders, including their classroom teacher, or if there is no teacher, a general education teacher qualified to teach them, and at least one person qualified to conduct individual diagnostic evaluations of children such as a school psychologist or remedial reading teacher. At least one team member must observe the child’s academic performance in the general education classroom, and if the child is preschool age, the observation should take place in an environment appropriate for that age. The observation may be one made prior to the child’s referral for special education assessment. The team’s written assessment report must include the basis for its determination of whether or not there is a specific learning disability and its relationship to the child’s academic functioning and observed behavior.[[34 C.F.R. Secs. 300.307-311.]] For specific information on identifying your child under the category of Specific Learning Disability, See Chapter 3, Information on Eligibility Criteria.

The law requires that the student be given an individually administered test of ability or intelligence and tests of achievement in areas such as reading, math, and writing. Some examples of intelligence or cognitive testing include: the Wechsler Intelligence Scale for Children, the Wechsler Pre-School and Primary Scale of Intelligence-Revised (WPPSI-R), the Stanford-Binet Intelligence Test, the Kaufman Assessment Battery for Children, and the Cognitive Assessment System.

The most commonly used achievement tests are the Wide Range Achievement Test (WRAT), the Peabody Individual Achievement Test (PIAT), and the Woodcock-Johnson Psycho Educational Battery-Revised (WJPEB-R). All of these are short tests designed to tell you the grade level and the age equivalency at which the student is performing in reading, writing, spelling, and math. 

The districts will also use clinical observations and informal interviews to gather data about daily living skills and functioning in the home and community.

Yes. Various professional reports that you may have received on your child from other sources — such as a regional center or doctors — would help the assessment process. For example, speech and language, occupational and physical therapy, neurological or ophthalmological reports; current teachers’ observations (from preschool or a different district); respite, recreational or camp personnel observations; and special medical reports are often useful. School districts generally ask you to share the other professional reports with them to assist in determining your child’s needs. In fact, any independent evaluation provided to the school district by the parent/guardian/other education rights holder must be considered in any decision related to the student’s programming and services.[[34 C.F.R. Sec. 300.305(a)(1)(i); Cal. Ed. Code Sec. 56329(c).]] Failure of a school district to consider independent evaluation reports on your child also constitutes a denial of a free and appropriate public education because it prevents meaningful parent/guardian/other education rights holder participation in the IEP development process.[[Student v. Los Angeles Unified School District (2015) 65 IDELR 246.]]

Every child is unique, so you might want to consider how your child best processes information when addressing this topic. You may want to explain that you and your child’s teachers believe that they are not learning as much as they can. Then, you could individualize the explanation by giving a simple example of what seems to be challenging for them. You could point out that each child is unique and that everyone learns in a different way. Some learn by hearing; some learn by seeing; and some learn through their sense of touch. Explain to them that assessments will show how they learn best, so their teacher can help them learn more.

Keep your explanation short and simple. You may say something like this: “You will be working with someone like a teacher who will have you look at pictures, play some games, do a little reading and math, and draw some designs and pictures.” That will give your child a general idea of what to expect. It is also important to encourage your child to do their best on the assessments, so that their needs are best understood.

A test and other evaluation material must be selected and administered so as not to be racially, culturally, or sexually discriminatory and must be administered in the student’s primary language or other mode of communication. The test must also be validated for the specific purpose for which it is used. In addition, testing must assess specific areas of educational need and not merely produce a single general intelligence quotient. No single procedure can be used as the sole criterion for determining an appropriate educational program for the student. Finally, for a student with impaired sensory, manual, or speaking skills, the testing must ensure that the results accurately reflect the student’s aptitude or achievement level, and not the student’s impaired skills, unless those skills are to be measured by the testing.[[20 U.S.C. Sec. 1414(b); 34 C.F.R. Sec. 300.304; Cal. Ed. Code Sec. 56320.]]

Federal regulations state that the evaluation must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.”[[34 C.F.R. Sec. 300.304(c)(6).]]

The school district must use technically sound testing instruments that demonstrate the effect that cognitive, behavioral, physical, and developmental factors have on the functioning of the child. In general, the school district must use “assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child.”[[34 C.F.R. Sec. 300.304(c)(7).]]

In addition, the school district must use a variety of assessment tools and strategies to gather both relevant functional and developmental information about the child, including information provided by the parent/guardian/other education rights holder. The evaluation must also gather information related to enabling the child to be involved and progress in the general curriculum or for a preschool child to participate in appropriate activities.[[34 C.F.R. Sec. 300.304(b)(1).]]

Trained personnel must administer each test in the assessment in conformance with the test producer’s instructions.[[34 C.F.R. Sec. 300.304(c)(1)(iv)&(v).]] The law requires that persons knowledgeable about the disability being assessed and competent to perform the assessment conduct it.[[Cal. Ed. Code Sec. 56320(g).]] Further, these persons must be competent in both the oral and written skills of the student’s primary language or mode of communication, and must have knowledge and understanding of the student’s cultural and ethnic background. California regulations require the use of an interpreter when necessary.[[5 C.C.R. Sec. 3023.]]

A credentialed school psychologist, trained and prepared to assess cultural and ethnic factors appropriate to the student being assessed, must conduct a psychological assessment.[[Cal. Ed. Code Sec. 56324(a).]] A health assessment must be conducted by a credentialed school nurse or physician who is trained and prepared to assess the cultural and ethnic factors appropriate to the pupil being assessed.[[Cal. Ed. Code Sec. 56324(b).]] A credentialed school psychologist must conduct individually administered tests of intellectual or emotional functioning.[[Cal. Ed. Code Sec. 56320(b)(3).]]

Yes. This is a requirement of both federal and state law, unless it is not feasible and is so stated in the assessment plan. If the assessor is not bilingual, the district should provide an interpreter. In addition, both federal and state law require that testing and assessment material be selected so as not to be racially, culturally, and sexually discriminatory.[[20 U.S.C. Sec. 1414(b); 34 C.F.R. Sec. 300.304(c)(1)(i); Cal. Ed. Code Sec. 56320(a), (b).]]

Yes. Students may be referred, as appropriate, for further assessments and recommendations to the California Schools for the Deaf or Blind or the Diagnostic Centers.[[Cal. Ed. Code Sec. 56326; 5 C.C.R. Sec. 3025.]]

California Children’s Services (CCS) has responsibility for conducting assessments regarding medically necessary occupational and physical therapy. County Departments of Mental Health are no longer responsible for conducting certain mental health assessments. However, your county mental health agency may continue to play a role in providing your child with an appropriate special education program by providing assessment and services through an interagency agreement or contract with your school district. See Chapter 9, Information on Inter-Agency Services (AB 3632).

The written assessment should give you a clear picture of your child’s functioning in all the areas tested. California Education Code Section 56327 requires that the report shall include, but it is not limited to, all of the following:

1. Whether the student may need special education and related services;
2. The basis for making the determination;
3. The relevant behavior noted during the observation of the student in an appropriate setting;
4. The relationship of that behavior to the student’s academic and social functioning;
5. The educationally relevant health and development and medical findings, if any;
6. For students with learning disabilities, whether there is such a discrepancy between achievement and ability that cannot be corrected without special education and related services;
7. A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate; and
8. The need for specialized services, materials, and equipment for students with low incidence disabilities.

In addition, specific details should be included on areas of need and areas of strength that can be used to assist the child in addressing those needs. As a parent/guardian/other education rights holder, you should be able to understand how your child’s learning style and learning needs and strengths affect their ability to learn. If this is not clear to you, ask school personnel to explain it to you. Feel free to ask them to explain technical terms in easily-understood language. Assessments must determine not only eligibility, but also the proposed content of your child’s IEP and information related to enabling them to be involved and progress in the general curriculum, or for preschoolers, appropriate activities.[[20 U.S.C. Sec. 1414(b)(2); 34 C.F.R. Sec. 300.304(b)(1)(ii).]]

Yes. Federal regulations require school districts to comply with a parent’s/guardian’s/other education rights holder’s request to inspect and review educational records without unnecessary delay and in no case more than 45 days after the request has been made.[[34 C.F.R. Sec. 300.613.]] However, state law gives parents/guardians/other education rights holders the right to examine and receive copies of all school records within five (5) business days from the date of an oral or written request.[[Cal. Ed. Code Sec. 56504.]]

The school district may charge no more than the actual cost of reproducing the records. If this charge effectively prevents a parent/guardian/other education rights holder from getting copies, the copies shall be provided at no cost.[[34 C.F.R. Sec. 300.617; Cal. Ed. Code Sec. 56504.]]

Yes. You can get copies. School districts are required by federal law to provide copies of assessment reports at no cost upon completion of the assessment and before any IEP meeting.[[20 U.S.C. Sec. 1414(b)(4); 34 C.F.R. Secs. 300.306(a)(2) & 300.613(a).]] You should request in writing that all assessments be sent to you within a reasonable time before the IEP meeting. There are no specific timelines in federal or state law to tell school districts how many days before the IEP meeting they must provide copies of assessments and other educational records to parents/guardians/other education rights holders.

When you make a request for assessment prior to an IEP meeting, tell the district that you will agree to reschedule the IEP if the reports are not completed in enough time before the meeting for you to review them. If the school district will not honor your request, the best argument is that the failure to provide the assessments in advance deprives you of your rights to meaningfully participate in the meeting and to give your informed consent to the IEP.[[34 C.F.R. Sec. 300.322; Cal. Ed. Code Sec. 56346.]]

No. As part of an initial evaluation or re-evaluation, federal regulations require that existing data on the child be reviewed. This data includes evaluations and information provided by the parent/guardian/other education rights holder; current classroom-based assessments and observations; and teacher and related service providers’ observations.[[20. U.S.C. Sec. 1414(c)(1); 34 C.F.R. Sec. 300.305(a)(1).]]

In addition, the school district must draw upon information from a variety of sources. These include aptitude tests, achievement tests, parental input, teacher recommendations and information about the student’s physical condition, social or cultural background and adaptive behavior.[[34 C.F.R. Sec. 300.306(c)(1).]] You can get copies of the evaluation data or protocols on which your child’s assessment report was based. Failure to share with parents/guardians/other education rights holders the evaluation data on which evaluation reports are based can constitute a denial of FAPE if it impedes a parent’s/guardian’s/other education rights holder’s participation in the IEP process.[[M.M. v. Lafayette Sch. Dist. (9^th Cir. 2014) 767 F.3d 842; 856, 64 IDELR 31.]]

Yes. If you disagree with a school district’s assessment, you may ask the district to pay for an independent educational evaluation (IEE).[[34 C.F.R. Sec. 300.502(b); Cal. Ed. Code Sec. 56329(b).]] You should make your request in writing to your child’s Program Specialist and send a copy to the district’s Special Education Director. It is important that you state your request as a disagreement with an assessment done by the school district.

When the school district receives your written request for an IEE, the school district has only two options: Fund or File. That is, the district must either pay for the independent evaluation (Fund) or file for due process (File), claiming that the district assessment is “appropriate.” If the district fails to respond by either paying for an IEE or filing for due process, it has failed to comply with the law. 

If the district decides to file for due process and go to a hearing, and the hearing officer determines that the school district’s assessment is appropriate, you still have a right to the independent evaluation, but not at public expense.[[34 C.F.R. Sec. 300.502(b)(3); Cal. Ed. Code Sec. 56329(c).]] When you make your request for an IEE, the district may ask you to identify specific areas of disagreement with its evaluation. You do not have to give the school district an explanation and any request for information by the school district cannot be used to delay the district’s response to your request for an IEE.[[34 C.F.R. Sec. 300.502(b)(4).]] The school district does have to give you information about where an IEE can be obtained and any basic agency criteria for an IEE.[[34 C.F.R. Sec. 300.502(a)(2).]]

Under federal regulations, the district must respond to your request for an IEE “without unnecessary delay.”[[34 C.F.R. Sec. 300.502(b)(2).]] While the federal regulations do not define what constitutes an “unnecessary delay,” the Office of Administrative Hearings did determine in one case that a school district’s delay of more than five months in providing an independent education evaluation at public expense, despite the district’s good faith efforts and ongoing negotiations with a proposed evaluator, violated the “without unnecessary delay” requirement of the federal law.[[Student v. Dixon United Sch. Dist. OAH Case No. 2013090674, 114 LRP 29153 (Apr. 18, 2014).]]

One reason a parent/guardian/other education rights holder may disagree with a school district’s initial evaluation or re-evaluation is if the school district failed to fully identify all areas that needed to be evaluated. In such a scenario, the parent/guardian/other education rights holder has a right to ask for an IEE at public expense. This is because the law states a school district must assess a student in all areas related to that child’s suspected disability and the evaluations must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category” of the child.[[34 C.F.R. Sec. 300.304(c)(6); Cal Ed. Code Sec. 56320(f).]] Again, once the parent/guardian/other education rights holder asks for an IEE to assess an area of need not included in the district’s evaluation, the school district must file for due process or fund the IEE. The school district does not have the option at that point of doing their own evaluation first or in place of an IEE.[[Office of Special Education Programs (OSEP), Letter to Carroll (Oct. 22, 2016), 68 IDELR 279.]]

You could file a compliance complaint to ask the California Department of Education (CDE) to determine whether the school district should fund an IEE due to the unnecessary delay in responding to a parent’s/guardian’s/other education rights holder’s request or the failure to assess in all areas related to your child’s disability. See Chapter 6, Information on Due Process/Compliance Procedures.

In practice, districts sometimes request that parents/guardians/other education rights holdersengage in due process mediation over a parent’s/guardian’s/other education rights holder’srequest for an IEE. Although a parent/guardian/other education rights holder may choose to voluntarily engage in due process mediation over their IEE request, a district cannot unilaterally demand the parent/guardian/other education rights holder do so. As explained above, the district has only two options for responding to a parent’s/guardian’s/other education rights holder’srequest for an IEE, which is to either file for a due process hearing or agree to fund the IEE. Due process mediation is different from filing for a due process hearing. See Chapter 6, Information on Due Process/Compliance Procedures. Therefore, a parent/guardian/other education rights holderthat does not wish to engage in due process mediation with the district over their IEE request may ask the district, instead, to respond by filing or funding.

Neither federal nor state law nor their regulations limit the cost of an IEE. However, the U.S. Department of Education has taken the position that school districts may set cost containment criteria (cost caps) for IEEs so long as the caps do not prevent parents/guardians/other education rights holders from obtaining an IEE. As a result, school districts may set reasonable caps reflecting the usual and customary rates in their community for each area of expertise. School districts must also provide parents/guardians/other education rights holders an opportunity to show that the cost caps should not apply due to unique factors in their child’s case.[[See Comments on IDEA Regulations, 71 Fed. Reg. 46540-01, 46689-90 (Aug. 14, 2006).]]

The school district is permitted to have agency criteria for conducting an IEE such as location of the evaluation and the qualifications of independent assessors. The IEE criteria must be the same as the criteria used by the district in its evaluations and must be consistent with a parent’s/guardian’s/other education rights holder’s right to an IEE.[[34 C.F.R. Sec. 300.502(e)(1).]]

The school district may not impose any other conditions or timelines related to obtaining an IEE such as which qualified assessor you use.[[34 C.F.R. Sec. 300.502(e)(2).]] There is no legal authority requiring parents/guardians/other education rights holders to select an IEE evaluator from a district’s preapproved list. However, the district does have the duty to inform parents/guardians/other education rights holders where they could obtain an IEE.[[34 C.F.R. Sec. 300.502(a)(2).]] You should make sure the evaluator is not a district employee and that they have the necessary qualifications to do the assessment.[[34 C.F.R. Sec. 300.502(a)(3)(i).]]

In some cases, the district may offer an assessment by a California Diagnostic Center, which is a division of the California Department of Education (CDE). The Diagnostic Center is designed to assist districts which do not have the expertise to do a particular assessment. While you may want to consider an assessment by a Diagnostic Center, there are two reasons why you may not want to accept this alternative:

1. Due to waiting lists, the Diagnostic Center may take up to six months to complete an assessment; and
2. Because the Diagnostic Center is a public agency that has a continuing relationship with your district, its assessment may be more limited in its recommendations.

Yes. You can always obtain an independent educational evaluation (IEE) at your own expense and the school district must consider the results of an independent evaluation in any decision regarding the provision of a free appropriate public education (FAPE) to your child.[[34 C.F.R. Sec. 300.502(c)(1); Cal. Ed. Code Sec. 56329(c).]] The results may also be presented as evidence at a due process hearing.[[34 C.F.R. Sec. 300.502(c)(2); Cal. Ed. Code Sec. 56329(c).]]

Once you have obtained the IEE and are satisfied with it, provide a copy to the school district well before the IEP meeting. And, inform the district in writing of the recommended services or placement in the IEE that you are requesting for your child. This will allow the district to provide you with “prior written notice” if the district refuses to provide the services or placement recommended in the IEE. See Chapter 4, Information on IEP Process.

Also, be sure to let the school district know that you want someone to attend the IEP meeting who is authorized to respond to the IEE on behalf of the school district. You are responsible for paying for an assessment that you have obtained on your own. However, if the district accepts the recommendations made in this assessment, you may be able to seek reimbursement from the school district.

Parents/Guardians/Other Education Rights Holders and school districts will often agree to an independent educational evaluation as part of a settlement agreement in a due process case. An administrative law judge (ALJ) at a due process hearing may also order an independent evaluation as part of the hearing. In this case, the independent evaluation is at public expense.[[Cal. Ed. Code Sec. 56505.1(e).]] You should contact local hospitals, medical centers, parent resource-training centers, parent support groups, regional centers or other community-based agencies to explore the availability of low-cost evaluations.

It is good practice to have your independent assessor include a classroom observation as part of an assessment. Otherwise, your expert will be subject to attack by the district for giving an opinion from a clinical perspective that is not relevant to what happens in the classroom. If an observation is too expensive or time consuming, the assessor should at least communicate with teachers and other service providers to gather information to support the conclusions and/or recommendations of the independent assessment.

If the school district observed the child as part of its assessment or if the district’s assessment procedures make in-class observation permissible, an independent evaluator has the same right to observe a child in their current or proposed educational placement, whether or not the independent assessment is conducted at public or private expense. This right exists whether or not a due process hearing has been requested.[[Cal. Ed. Code Sec. 56329(b) & (c).; see also Office of Special Education Programs [OSEP], Letter to Savit (Feb. 10, 2014), 64 IDELR 250.]]

If the school district refuses to permit the independent evaluator to visit a site as part of an independent assessment, you could file a compliance complaint with the California Department of Education (CDE), or a motion with the Office of Administrative Hearings to enforce this right. See Chapter 6, Information on Due Process Hearings/Compliance Procedures.

The right to observe a proposed placement also applies to school districts. If a parent/guardian/other education rights holder is proposing that a school pay, or reimburse the parent/guardian/other education rights holder, for the costs of a private school placement, the district is entitled to observe that proposed private school and/or to observe the student in the proposed private school if the parent/guardian/other education rights holder has already placed the child there.[[Cal. Ed. Code Sec. 56329(d).]]

An initial evaluation must be conducted prior to a student being considered for special education and related services. A re-evaluation may occur no more than once a year unless the parent/guardian/other education rights holder and the school district agree otherwise. A re-evaluation must be conducted at least every three years unless the parent/guardian/other education rights holder and the school district agree in writing that a re-evaluation is not necessary for special education students. A re-evaluation must be conducted whenever the student’s parents/guardians/other education rights holders, teacher or district staff request one subject to the two conditions stated above.[[20 U.S.C. Sec. 1414(a)(2); 34 C.F.R. 300.303; Cal. Ed. Code Sec. 56381(a)(2).]]

No. As part of any re-evaluation, the IEP team (including parents/guardians/other education rights holders) and other qualified professionals, as appropriate, must review existing data on the student to identify what additional data, if any, are needed to determine: 

1. Whether the student continues to have an eligible disability; 
2. The education needs of the student;
3. Whether the student continues to need special education and related services; and 
4. Whether any additions or modifications to the special education and related services are needed to enable the student to meet the measurable annual goals set out in the student’s IEP and to participate in the general curriculum. 

The team must review evaluations and information provided by the parent/guardian/other education rights holder; current classroom-based assessments and observations; and teacher and related services providers’ observations. The group may conduct this review without a meeting. [[20 U.S.C. Sec. 1414(c)(1); 34 C.F.R. Sec. 300.305; Cal. Ed. Code Sec. 56381(b).]] The district is not required to obtain parental consent to review existing data as part of the re-evaluation[[34 C.F.R. Sec. 300.300(d)(1)(i).]]

If the IEP team decides that additional data/testing are needed, the district must obtain parental consent and conduct the evaluations.[[20 U.S.C. Sec. 1414(c)(2)-(3); 34 C.F.R. Sec. 300.300(c); Cal. Ed. Code Sec. 56381(f).]]

If the team decides that no additional data/testing are needed, the district is not required to conduct an assessment unless the parent/guardian/other education rights holder requests one. In this case, the district must notify you of this decision and the reasons for it, and inform you of your right to request an assessment.[[20 U.S.C. Sec. 1414(c)(4); 34 C.F.R. Sec. 300.305(d)(1); Cal. Ed. Code Sec. 56381(d).]]

Yes. Before determining that a child with a disability is no longer eligible for special education and related services, the school district must conduct a thorough and comprehensive evaluation of the child.[[20 U.S.C. Sec. 1414(c)(5)(A); 34 C.F.R. Sec. 300.305(e); Cal. Ed. Code Sec. 56381(h).]] If you disagree with the school district’s recommendation on eligibility, you may file a due process complaint to resolve the issue. 

However, if the district is terminating eligibility because the student graduated with a regular high school diploma, or exceeded the age eligibility for special education and related services, no evaluation is required.[[20 U.S.C. Sec. 1414(c)(5)(B); 34 C.F.R. Sec. 300.305(e)(2); Cal. Ed. Code Sec. 56381(i).]]

Yes. A re-evaluation may not be conducted without written parental consent unless a school district can show that it took reasonable steps to obtain consent and the parent/guardian/other education rights holder failed to respond.[[Cal. Ed. Code Secs. 56381(f) & 56506(e); 34 C.F.R. Sec. 300.300(c).]] Reasonable steps to obtain consent can be demonstrated if the district can show detailed records of telephone calls made or calls attempted to the parent/guardian/other education rights holder and the results, copies of correspondence sent to the parents/guardians/other education rights holders and any responses received, or detailed records of visits made to the parent’s/guardian’s/other education rights holder’s home or place of employment and the results.[[34 C.F.R. Secs. 300.300(c)(2) & 300.322(d)(5); Cal. Ed. Code Sec. 56381(f)(2).]] Prior to obtaining consent, the district must fully inform the parent/guardian/other education rights holder of all information relevant to the proposed re-evaluation.[[34 C.F.R. Secs. 300.300(c)(1) & 300.9.]]

All assessments, including the three-year re-evaluation, must be conducted in accordance with state and federal law.[[Cal. Ed. Code Sec. 56381.]] The school district’s assessment plan should give you enough information to determine the appropriateness of the evaluation. If the plan is not comprehensive enough, you may suggest that additional tests be administered and/or may ask to postpone the IEP meeting until a comprehensive re-evaluation can be done. You may also challenge a re-evaluation’s lack of thoroughness through a due process hearing or state compliance complaint, or request an IEE on that basis.[[34 C.F.R. Sec.300.507(a)(1).]]

Special education students who are placed in a public hospital, state licensed children’s hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area, or County Office of Education in which the hospital or facility is located.[[Cal. Ed. Code Secs. 56167 & 56168(b).]] Therefore, the re-evaluation is conducted by the educational agency responsible for the area in which the facility is located.

No, the specific assessment process and timeline are outlined in Section 504 of the Rehabilitation Act of 1973. Similar to the IDEA, Section 504 regulations require that school districts “conduct an evaluation…of any persons who, because of [disability], need or are believed to need special education or related services . . . .”.[[34 C.F.R. Sec. 104.35(a)]] The school district must establish standards and procedures for 504 evaluations and ensure that:

1. Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
2. Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
3. Tests are selected and administered so as best to ensure that when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect their aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting their impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).[[34 C.F.R. Sec. 104.35(b).]]

While there is no specific timeline under Section 504 in which school districts must complete the initial evaluation, the U.S. Department of Education Office for Civil Rights (OCR) has explained that the various steps leading to placement, which includes evaluation, must be completed within a reasonable period of time.[[Lumberton (MS) Pub. Sch. Dist., 18 IDELR 33; 18 LRP 1739 (OCR June 24, 1991).]] When deciding what is a reasonable period of time, OCR has applied state timelines as a guideline.[[Beach Park (IL) CMTY Consol, Sch. Dist., 62 IDELR 155; 113 LRP 32271 (OCR May 29, 2013).]] California state law requires school districts to complete assessments within 60 days of receiving parental consent.[[Cal. Ed. Code. Sec. 56302.1.]]

Once a child is found eligible under Section 504, the school district must conduct periodic re-evaluation of that child.[[34 C.F.R. 104.35(d).]] To meet this duty, the school district can follow the evaluation requirements under the IDEA.

Section 504 evaluation standards and procedures may be different for each school district. The district may choose to use the special education assessment process or develop a separate process for Section 504 evaluation.[[34 C.F.R. Sec. 104.35.]] Parents/Guardians/Other Education Rights Holders should write their district Section 504 Coordinator and obtain a copy of the district’s 504 Policies and Procedures.

No. If the school district believes that your child does not have a “physical or mental impairment which substantially limits a major life activity,” the district may refuse to evaluate them. If you disagree with the district, you would have to file for a Section 504 hearing to require the district to evaluate your child for eligibility.[[U.S. Dep’t of Educ., Office for Civil Rights (OCR) Memorandum (April 29, 1993), 19 IDELR 876.]]

However, if a district does agree that a child has or may have such an impairment, a delay of four months to conduct the evaluation was found to be a violation of Section 504.[[Tracy (CA) Unified Sch. Dist., 115 LRP 17619 (OCR Feb. 11, 2015)]]

Yes. Federal law requires the participation of students with disabilities in state and district-wide assessments of student achievement with individual appropriate accommodations where necessary. Participation in these assessments and any necessary individual appropriate accommodations must be documented on the student’s IEP.[[20 U.S.C. Sec. 1412(a)(16); 34 C.F.R. Sec. 300.320(a)(6); Cal. Ed. Code Secs. 56345(a)(5) & (6).]] For a full discussion of your child’s rights with regard to these assessments, see Chapter 11, Information on District-Wide Assessments/Graduation Requirements.

In addition, the IEP team may exempt students from these assessments. If the IEP team determines that your child will not participate in state or district-wide assessments (or part of an assessment), a statement of why the assessment is not appropriate for your child and how they will be assessed must be included in the IEP.[[20 U.S.C. Secs. 1412(a)(16)(C) & 1414(d)(1)(A)(i)(VI)(bb); 34 C.F.R. Sec. 300.320(a)(6)(ii); Cal. Ed. Code Sec. 56345(a)(6)(ii).]]

Federal law requires:

1. Tests must be selected and administered so as not to be racially, culturally, or sexually discriminatory;
2. Tests must be administered in the student’s primary language or other mode of communication;
3. Tests must be validated for the specific purpose for which they are used;
4. Testing must assess specific areas of educational need and not merely produce a single general intelligence quotient (no single procedure can be used as the sole criterion for determining an appropriate educational program for a student);
5. When a student with impaired sensory, manual, or speaking skills is being tested, the testing must ensure that the results accurately reflect the student’s aptitude or achievement level, and not the student’s impaired skills, unless those skills are to be measured by the testing; and
6. A student must be assessed in all areas related to a suspected disability, including, where appropriate, health and development, vision (including low vision), hearing, motor abilities, general ability, academic performance, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status.[[34 C.F.R. Sec. 300.304.]]

In addition, for a child with limited or no English proficiency, materials and procedures must be provided in the pupil’s native language or mode of communication and must yield accurate information on what the pupil knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to do so.[[Cal. Educ. Code Sec. 56320(a)-(b).]]

Federal law requires that parents/guardians/other education rights holders give informed consent for student evaluation procedures and student placement. Informed consent means that you, as a parent/guardian/other education rights holder, have been fully informed of all information relevant to the activity for which consent is sought, in your native language or other mode of communication.[[34 C.F.R. Secs. 300.300 & 300.9.] 

State law in California provides the same protections as federal law. In addition, the state requires that:

1. The assessment plan be provided in the primary language of the parent/guardian/other education rights holder unless to do so is clearly not feasible;
2. Any psychological assessment of students be conducted by a credentialed school psychologist who is trained and prepared to assess cultural and ethnic factors appropriate to the student being assessed; and
3. For students whose primary language is other than English, linguistically appropriate goals, objectives, programs and services be included in a student’s IEP.[[Cal. Ed. Code Secs. 56320(a)(3), 56321(b)(2), 56324(a), & 56345(b)(2).]]

First and foremost, tests must be selected on the basis of the referral problem and according to the specific needs of the individual child. You should always question the practice of assessing all students on the same test (or series of tests) since each student is a special and unique individual.[[34 C.F.R. Sec. 300.304; Cal. Ed. Code Sec. 56320.]]

The language used by assessment staff who administer assessments to a child too often intimidates parents/guardians/other education rights holders of the child with special education needs. Tests are not as complex as they may first appear. A competent psychologist, speech clinician, learning specialist, or other assessment staff in the public schools can easily explain the tests to you. You have the right to ask about tests, how they are put together, and what the results of a test mean in clear and plain language. Never hesitate to exercise this right; your child’s future may be decided on the results of such assessments. Here are some questions you can ask, especially if you are or your child is a member of a multicultural population:

Has the examiner provided a setting and developed a procedure that will assure the student’s maximum performance so that results will not be affected by outside circumstances? Such circumstances might include, for example, illness, anxiety, hunger, trauma, motivation, confidence, temperature, lighting, etc. A good assessment must acknowledge the influence of such variables and estimate their impact on assessment results.

How reliable and valid is the test? That is, if given again, is it likely that the results will be about the same (reliability)? Does this test measure adequately the ability it is supposed to measure (validity)?

Are the norms for this test based on a representative sample of the population of which the child is a part? That is, if the child is Asian-American, are Asian-Americans included in the normative sample?

Is the response format of the test appropriate to the child? That is, if the child is non-verbal, can they respond without giving a verbal response? If your child is visually impaired, can the test be given without visual material? If your child speaks only Spanish...has a physical impairment...has a hearing impairment...etc., can they take the test without interference from physical or linguistic limitations?

Is the examiner skilled in administering the test, knowledgeable about normal and abnormal patterns of development, capable of observing qualitative features of test performance, and proficient in interpreting results? Your child has the right to receive assessment services from a competent, qualified examiner.[[Cal. Ed. Code Secs. 56320(a) & (b)(3).]]

The district does not have to assess a student who will lose special education eligibility only as a result of exceeding the age limitations or because of graduating with a regular high school diploma. For a student who has not reached the age limit or graduated, the district must assess them before it can determine they no longer have a qualifying disability.[[34 C.F.R. Sec. 300.305(e)(2); Cal. Ed. Code Sec. 56381(i).]]

Yes, as long as the district has your consent, it must locate, identify, and assess all private school children with disabilities, including religiously affiliated school-age children, who have disabilities. Both the district in which you reside and the one in which the private school is located (if different) have “Child Find” obligations. You should make your written request for assessment to both districts, although only the district where you reside has responsibility to provide services to your child if they are eligible.[[34 C.F.R. Sec. 300.131; Cal. Ed. Code Secs. 56171, 56300, & 56301.]]

The Larry P. v. Riles (Larry P.) case was filed in 1971 when five Black children who had been placed in special education classes for the “educable mentally retarded” (EMR) in the San Francisco Unified School District filed suit in the Federal District Court of Northern California arguing they had been wrongly placed in the EMR classes based on their performance on intelligence tests that were racially biased and discriminatory. [[Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal. 1979).]] The suit also challenged the disproportionate rate at which Black students were placed in EMR classes compared to the number of Black students in the school system.

The Court decided in favor of the students, and the district was prohibited from using IQ tests to identify or place Black students in EMR-type classes. The decision was upheld on appeal in 1984.[[Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).]] In 1986, following a settlement by the parties after California abolished the EMR category, the Court expanded its ruling by banning the use of IQ testing on any Black students who have been referred for special education services.[[See Crawford v. Honig, 37 F.3d 485, 486 (9th Cir. 1994).]]

In 1994, Crawford v. Honig prompted a reexamination of the rights of Black children in special education. In Crawford, Black students who sought to have IQ tests administered to them for non-EMR learning disabilities challenged the 1986 expansion of the Larry P. ruling, which banned anyuse of IQ tests for Black children in special education. The Court ruled for the students and rescinded the 1986 expansion, allowing three Black children to take IQ tests because their parents wished to have them do so. That decision, which left in place the previous 1976 Larry P. ruling, was affirmed on appeal.[[See Crawford, 37 F.3d at 488-89.]] 

The California Department of Education (CDE)’s most recent legal guidance on this issue clarifies that the “Larry P. injunction remains in place,” and therefore school districts are prohibited from using any assessment that is a “standardized intelligence test” for purposes of identifying or placing Black students in a category or placement that is “substantially equivalent” to what was formerly known as EMR.[[Cal. Dep’t of Educ., Mem. Re. Special Education Assessment of African American Students (Sept. 14, 2022), available at https://www.cde.ca.gov/sp/se/ac/memo091422.asp.]]

As the California Association of School Psychologists has explained, this means that IQ tests may not be used to place Black students in the category of Intellectual Disability (“ID”), but school psychologists may still exercise their professional judgment as to whether to use IQ tests for other suspected areas of disability, so long as they follow all other legal requirements.[[See Cal. Assoc. of Sch. Psycs., CASP’s Response to CDE’s Memorandum on Special Education of African American Students - Sept. 14, 2022 (Oct. 10, 2023), available at https://casponline.org/pdfs/resource-papers/Updated%20Larry%20P.%20Guidance%20Paper%2010-10-23.pdf.]] In practice, school districts sometimes misinterpret Larry P. as preventing them from conducting important and necessary cognitive assessments that are indeed allowed under Larry P. and the CDE’s legal guidance. 

If families of Black students with disabilities are concerned about a missed diagnosis or misdiagnosis due to a district’s failure to conduct a needed cognitive assessment because of the district’s misunderstanding of Larry P., they may want to consider seeking an independent education evaluation (IEE). Information about IEEs is available at SERR Ch. 2.27-2.29.

Concerning the special education category of specific learning disability (SLD), the CDE, in its memorandum regarding Larry P.’s injunction, which is explained in this question, no longer directly bans use of IQ tests. Instead, the CDE states if a school district chooses to use the severe discrepancy model in assessing for SLD eligibility, it is not required to use IQ tests to determine intellectual ability.

No. The ruling applies only to Black students who may need special education services. However, some local districts have, on their own, expanded the ruling to include all children.

The Diana v. State Board of Education (Diana) case originated when a group of Spanish-speaking students were inappropriately assigned to what used to be labeled “Educable Mentally Retarded (EMR)” classes based on an assessment by an unqualified, monolingual English-speaking assessor.[[CA 70 RFT (N.D. Cal. 1970).]] The psychologist tested Spanish speakers in English and used this data to place students in special education classes. The case, filed in 1969, was settled out of court in 1970. Under the stipulated settlement agreement, the California Department of Education (CDE) is required to:

1. Monitor schools for racial imbalance,
2. Correct any imbalance,
3. Collect data annually, and
4. Use representatives of the Latino community when audits are performed in school districts. 

In 1967, at the time of the case was being litigated, Latinx students were over-represented in classes for children with intellectual disabilities, constituting 26% of the total statewide children with intellectual disabilities population, but only 14% of the statewide school-age population in 1967.

To this day, CDE is required to comply with the 1971 court order and monitor special education to ensure Spanish-speaking students are not overrepresented in special education. Because of Diana, state law contains provisions for testing in the child’s native language so that no child will be placed into special education only because of a limited ability to speak English.[[Cal. Ed. Code Sec. 56320.]]

What is most important in identifying Spanish-speaking students is the assessor, not the test. Any parent/guardian/other education rights holder or community provider/supporter who works with Spanish-speaking students should examine carefully the bilingual training, assessment training, and cultural sensitivity of the person doing special education testing. Test translation should be avoided at all costs, as translation invalidates the results.

Listed below are general areas of assessment and tests that are commonly used with Spanish speakers. The tests are not valid for every student in all situations. Remember — each assessment plan should be tailored to meet each student’s individual educational assessment needs.

Federal and state laws provide that school districts may not use assessments and other evaluation materials that are discriminatory against students of color or against students whose primary language is a language other than English.[[See 20 U.S.C. Sec. 1414(b)(3)(A); 34 C.F.R. Sec. 300.304(c)(1)(i); Cal. Ed. Code Sec. 56320(a), (b).]]

Larry P. v. Riley and Diana v. State Board of Education are two lawsuits that specifically impacted the special education assessments used on Black students (Larry P.) and Spanish-speaking students (Diana). The outcomes of these lawsuits, which are consistent with federal and state laws that prohibit the use of discriminatory assessments, are described in more detail in Chapter 2.46 (Larry P.) and 2.48 (Diana).

The effect of federal and state law, which were reinforced by Larry P., and Diana, is that, regardless of a student’s race or primary language, no student seeking special education assessments should be discriminated against on the basis of race or ethnicity, subjected to tests that are racially or culturally biased, or assigned to a special education placement based on their limited ability to speak English.Currently, there are very few specially designed special education assessments for other ethnic and language minority students. Special education assessment is usually conducted with the common tests that are administered to most students. Therefore, for the English Learner (EL) student, it is essential that the assessor be proficient in the student’s native or primary language.

The single eligibility criteria affected by the Larry P. decision is the category of specific learning disability.

Before 2004, school districts used the “discrepancy model” to determine whether a student had a learning disability. Under this model, a student had to have a severe discrepancy between intellectual ability and achievement in academic areas. Student ability was traditionally measured by standardized IQ tests. Because the Larry P. case, however, prevented the use of these tests for Black students, districts were required to use alternative methods. Under current law, states cannot require districts to use the discrepancy model and must permit the use of a child’s “response to scientific, research-based intervention” (RTI). Those districts that choose to continue the discrepancy model may do so, but must use alternative tests to measure intellectual ability. See Chapter 3, Information on Eligibility Criteria.