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As more states embrace the SAT or the ACT as their mandated high school test, a new gulf is opening between students with disabilities and those without, and it鈥檚 caught the eye of the U.S. Department of Justice.

The department鈥檚 civil rights division is gathering information about the practices of the College Board and ACT Inc. after persistent complaints that the testing organizations reject many requests for accommodations that are routinely provided by schools, such as extra time or frequent breaks.

That practice puts students with disabilities in a tough spot, particularly in the 23 states that now require high school students to take one of the two college-entrance exams. Students who can鈥檛 get the testing accommodations they鈥檙e used to can take the exams without them and risk a compromised performance, or, in some states, they can insist on their usual accommodations and give up a key benefit their non-accommodated peers receive: a 鈥渃ollege-reportable鈥� score.

That鈥檚 because the College Board and ACT Inc. won鈥檛 certify scores for use in college admissions if their tests aren鈥檛 taken with accommodations they approved. The organizations defend their practices, and say relatively few students end up with non-reportable scores.

Questions of equal test access are mounting as states push harder than ever to find ways to ensure that students are college-ready. Many states offer the SAT or the ACT for free to all students to expand access to college, so the test cost of $39 to $54 isn鈥檛 a hurdle to the admissions process.

More recently, states have moved from offering college-admissions tests to requiring them, opening up new challenges of access for students with disabilities or those learning English. Last year, 3.6 million students took those exams. The pressure ramps up further as some states choose to use the SAT or the ACT as their high school test for federal accountability鈥攁s the new Every Student Succeeds Act invites them to do鈥攂ecause federal law requires 95 percent of students to be tested.

Sheryl Lazarus, a senior research associate at the National Center on Educational Outcomes, at the University of Minnesota, which studies students with disabilities and English-language learners, said it鈥檚 鈥渁 major concern鈥� that some students are not getting college-reportable scores on their states鈥� mandated SAT or ACT.

鈥淭he public thinks that what鈥檚 happening is that states are helping kids clear a hurdle to college. But, instead, what鈥檚 happening is many students are not getting the same foothold鈥� as their peers who take a college-entrance exam without accommodations, she said.

鈥楽eparate and Unequal鈥�

The story of an 8th grader in Arizona illustrates the painful choices facing some students with disabilities. Her charter school requires students to take a lineup of Advanced Placement courses and exams, and the PSAT and the SAT. For years, the student has received extra time on state tests because of attention deficit hyperactivity disorder, which is documented in the educational plan drawn up for her under Section 504 of the federal Rehabilitation Act.

But the College Board rejected her school鈥檚 application for extra time on her first AP exam, and asked for additional testing to document the disability, according to the girl鈥檚 father, who declined to be identified for fear of endangering the family鈥檚 appeal to the College Board.

The school paid more than $2,000 for more tests and resubmitted the request, but the College Board denied it again, and requested more specialized subtests, the father said. After another round of testing, which also cost the school more than $2,000, he said, the College Board denied the request a third time, saying that 鈥渋n the aggregate, her performance is high enough that she doesn鈥檛 need accommodations,鈥� the father said.

Fearing a low score on her AP report, the girl鈥檚 family decided she should skip the test. She lost the opportunity to boost her grade point average, as her peers can, by factoring in AP test scores, her father said. And he fears her PSAT and SAT performance will be compromised if the family鈥檚 appeal isn鈥檛 granted.

鈥淲hat was being offered there was separate and unequal,鈥� he said.

That story troubles Eve L. Hill, a deputy assistant attorney general with the Justice Department鈥檚 civil rights division. She said her office receives many reports about students who request accommodations on the SAT or the ACT and encounter 鈥渂arriers to getting them considered,鈥� such as receiving no answer at all, or having to respond to repeated demands for more screening tests or more documentation, and then often having their requests denied or only partially granted.

Focusing on Legal Mandates

Those kinds of problems led the Justice Department to create a new 鈥渢echnical assistance鈥� document in September, highlighting the provisions of the Americans with Disabilities Act and its regulations that ensure students equal access to a fair testing environment, for any test that governs high school, college, or graduate school admissions, as well as licensing or professional exams.

In partnership with the U.S. Department of Education, the Justice Department took the unusual step of inviting K-12 state leaders who oversee assessment and special education to listen to a webinar in December that detailed those ADA provisions.

Ms. Hill declined to say whether the Justice Department is planning to file suit against one or more testing companies. But such action is one of the department鈥檚 options. It intervened in a California case against the Law School Admission Council, which administers the LSAT, and helped bring about a 2014 settlement of claims that test-takers had trouble getting accommodations or that their scores were 鈥渇lagged鈥� in ways that disadvantaged them in law school admissions.

For now, the Justice Department is asking schools, districts, and states to submit reports of inappropriate denials of testing accommodations through its online complaint form.

鈥淲hen a testing company demands unnecessary documentation, denies accommodations without a really good reason,鈥� or doesn鈥檛 administer tests in a way that 鈥渂est ensures鈥� that scores reflect students鈥� knowledge and skill, rather than their disabilities鈥攁 key tenet in ADA regulations鈥攊t鈥檚 鈥減otentially an ADA violation,鈥� Hill said in an interview.

The fact that some students emerge from a state-required ACT or SAT administration without a college-reportable score could run afoul of another provision of ADA regulations, which says that in contracting, states may not 鈥渁fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.鈥�

Difficulty obtaining accommodations on the SAT or the ACT is an issue that鈥檚 rising on states鈥� radars as they push more students to take those tests. State assessment directors have been airing their concerns about it at nationwide gatherings with colleagues, and federal education officials have at times attended those meetings or called in to hear such concerns.

Some assessment leaders are uneasy about using the college-entrance exams for accountability because of fairness questions.

鈥淥ne of the questions is: Is it valid to penalize a school for results when some students who are used to certain accommodations took the test without them?鈥� said Marianne Perie, the director of the University of Kansas鈥� Center for Educational Testing and Evaluation, which designs testing systems for states.

Deb Lindsey, the assessment director in Wyoming, which requires all students to take the ACT and plans to use it for accountability, said she has been pushing ACT Inc. hard to allow school-based teams to be the arbiters of accommodations on that test, the same way they are for classroom and state testing accommodations. They鈥檙e the ones who know the students best, she said.

Lindsey said she鈥檇 like to see 鈥渁 day when there would not be an ACT panel that reviewed the appropriateness of student accommodations requests.鈥�

A Role for States?

Some state testing leaders are increasingly uneasy about the role their state policies play in students鈥� difficult choices. Michael Hock, Vermont鈥檚 assessment director, said that testing companies create the problem by rejecting many of the accommodations that states and districts permit on their own tests.

But states that mandate the SAT or the ACT, knowing some students might not get a college-reportable score, contribute to the problem, too, he said.

鈥淚 think states share some culpability here because they鈥檙e willing to go along with it,鈥� Hock said. 鈥淚t completely disregards the needs of the student.鈥�

Joseph Martineau, who oversaw testing in Michigan for eight years before joining the Center for Assessment, which consults with states on testing issues, said he was troubled watching the parents of students with disabilities struggle to choose between encouraging their children to take the state-required ACT without the accommodations they鈥檇 been used to, or take it with them and sacrifice a college-reportable score.

It bothers him, too, that being an English-learner is not, by itself, grounds for accommodations on the test.

鈥淚t was frustrating,鈥� he said. 鈥淚 always felt we were not doing right by the kids, and that our hands were tied. It never felt right because some students weren鈥檛 getting equal opportunity鈥� to show how they could perform on the entrance exam, or to use the scores the same way as their non-accommodated peers, he said.

Who Decides?

In general, states allow a greater variety of accommodations on their tests than do the private testing companies, experts said. If a student鈥檚 504 plan or individualized education program specifies them, they can easily obtain supports such as Braille, a human reader or signer, use of a calculator, and text-to-speech conversions. Additional time, though, is among the most commonly requested accommodations.

Students don鈥檛 have to request extended time on the Smarter Balanced exam, since it鈥檚 untimed. They must request it on the PARCC exam, and on many state tests that are timed. Accommodations for those tests, as for any state test, are granted by school-based IEP teams, and are routinely granted if a need is specified in the student鈥檚 IEP or 504 plan.

But in shifting to private testing companies for high school tests, decisions about accommodations are made at those companies鈥� discretion.

Of the 11th graders in the class of 2016 who took the ACT in states that required it, 11,200 students got scores that weren鈥檛 college-reportable, according to the ACT. On the SAT, no students got non-reportable scores in 2014-15 because no state that mandates the SAT permitted accommodations not approved by the College Board, spokeswoman Kate Levin said. In 2013-14, one state, Maine, did, and 125 students got non-reportable scores, she said.

ACT Inc. and the College Board said their practices on test accommodations are necessary to protect the validity and reliability of the scores. The College Board said it approves 85 percent of its accommodations requests; ACT said it approves 92 percent. Both said they鈥檝e reviewed their accommodations practices and concluded that they conform to the Justice Department鈥檚 guidelines.

Requests for accommodations on the two exams are turned down most often for reasons such as failing to identify a disability, presenting no evidence that accommodations are needed, requesting inappropriate accommodations (such as asking to review the test in advance), or lacking a parent鈥檚 signature, the two organizations said.

Levin said that the few students who don鈥檛 obtain a college-reportable score get other benefits, such as free online practice resources, score reports that detail their strengths and weaknesses, and college-planning information. Paul Weeks, the senior vice president for client relations at ACT, acknowledged that it is more difficult to secure accommodations for the ACT than it is for state tests, but said that 鈥渢he difficulty is a lot less than people think.鈥�

鈥楢 Delicate Balance鈥�

Still, he said, ACT Inc. is constantly reviewing its accommodations practices as it tries to help states provide the testing programs they wish to offer, with maximum participation.

鈥淚t鈥檚 a delicate balance between meeting states鈥� needs, and students鈥� needs, and ensuring validity and reliability in the scores we provide to colleges,鈥� Weeks said.

Maine has required students to take the SAT for a decade, and its assessment director, Charlene Tucker, views the program鈥檚 benefits as far outweighing its drawbacks. It gets more students thinking about college, she said, and it provides valuable reports to parents, and to schools, that help shape planning and instruction. A college-reportable score 鈥渋s an extra bonus鈥� that most students get, Tucker said.

Some schools might be limiting the range of accommodations they provide in day-to-day practice, andrequest on the SAT or the ACT, in anticipation of those companies鈥� approval patterns.

Michigan recently switched to the SAT after years of requiring the ACT. Laurie Vanderploeg, who oversees special education services to 14,000 students in 20 districts around Grand Rapids, said schools in her area haven鈥檛 had many accommodations requests rejected.

She said that could be because 鈥渨e tried to anticipate the accommodations鈥� that ACT typically provided, to keep them consistent across a student鈥檚 school years and 鈥渢o avoid putting a kid at risk of a non-reportable score.鈥� But she acknowledged that anticipating the accommodations ACT would likely provide 鈥渕ay have鈥� shortchanged students who needed other kinds of supports.

Connecticut was concerned enough about the College Board鈥檚 accommodations policies that it pressured the organization to expand available accommodations as part of that state鈥檚 recent decision to require the college-entrance exam for all students.

Commissioner of Education Dianna R. Wentzell said in an interview that her state鈥檚 legal and special education teams consulted with the Justice Department to be sure Connecticut was on solid footing in its accommodations requests as it negotiated an agreement with the College Board.

She said she鈥檚 鈥渧ery impressed鈥� that the College Board was open to the shift, and that the board is going to use its work with Connecticut to study the impact, if any, of greater accessibility on the validity of exam scores.

There will still be Connecticut students whose accommodations aren鈥檛 approved for the SAT and who won鈥檛 get college-reportable scores, Wentzell said, but the change will minimize that number and make the SAT 鈥渁vailable to more students.鈥�