A proposed federal regulation on testing students with disabilities provides details on the flexibility available to states and schools for meeting the requirements of the No Child Left Behind Act.
While state education officials have generally welcomed the flexibility, representatives from advocacy groups for people with disabilities say they鈥檙e concerned about potential erosion of academic standards for such students.
The Department of Education announced the proposed regulation last month that would accompany a policy announced months earlier. The proposed rule spells out in detail how states could allow certain students鈥攖hose who would have 鈥渟ignificant difficulty鈥� meeting grade-level proficiency, even with the best instruction鈥攖o be tested based on modified achievement standards that aren鈥檛 as deep or broad as regular grade-level content.
Secretary of Education Margaret Spellings said the move was part of a 鈥渕ore sophisticated鈥� approach to meeting the needs of such students.
鈥淎t its heart, this policy is all about improving the way we educate and assess children with disabilities. It鈥檚 a smarter, more sophisticated way of serving their needs,鈥� Ms. Spellings said in releasing the proposed rule Dec. 14 at Guilford Elementary School in Columbia, Md.
The policy, which the department has allowed states to use even before the regulation was announced, permits 2 percent of all students, or roughly 20 percent of students with disabilities, to be counted as proficient under the No Child Left Behind testing mandate if they take tests based on modified standards. That is in addition to another regulation that allows 1 percent of children with significant cognitive impairments鈥攁bout 10 percent of students with disabilities鈥攖o be tested using different standards and tests.
Put together, the two policies allow almost a third of students with disabilities to be counted as proficient under the No Child Left Behind law, though they are not being tested the same way, or on the same depth of subject matter, as their peers in general education.
The federal school improvement law requires that students be tested yearly in reading and mathematics in grades 3-8 and once in high school. It also requires the public release of test scores for various subgroups, including students with disabilities. Students in the subgroups must make adequate yearly progress towards proficiency in order for their schools to meet federal standards.
Tennessee Commissioner of Education Lana C. Seivers joined Secretary Spellings during her announcement of the proposed regulation. Tennessee students with disabilities outpaced general education students in their rate of improvement on state tests during the 2004-05 school year.
Ms. Seivers said the state launched an intensive effort to improve test scores of students with disabilities in 2003, before such NCLB flexibility proposals were planned. But, she said, the policy is still a good option for her state.
鈥淚t鈥檚 more like a piece of the puzzle, to make sure we accurately reflect every student鈥檚 progress,鈥� she said.
Tennessee is also working on guidelines to ensure that the appropriate students are taking the tests based on modified standards.
鈥淚 understand the feeling that parents have, that this is just one more way to push students with disabilities to the side,鈥� but the state will not let that happen, said Ms. Seivers, who has an adult son with disabilities.
Looking at the work her state is doing on such issues, 鈥渁s a special educator and as a mom, that鈥檚 encouraging to me,鈥� she said.
Proposals Questioned
Ricki Sabia, the associate director of the National Down Syndrome Society鈥檚 policy center in Washington, has a different perspective on the proposed rules. Though she sees some potential benefits, she also believes the push to promote flexibility in testing comes from educators who were upset to see their schools deemed to be in need of improvement because students with disabilities weren鈥檛 passing the required tests.
鈥淭here鈥檚 a lot of frustration and a lot of negativity about the [No Child Left Behind] law from people who are very powerful, and the law was in danger,鈥� Ms. Sabia said.
Candace Cortiella, the founder of the Advocacy Institute, a nonprofit organization in Burke, Va., that works to support people with learning disabilities, said the percentages that the Education Department has put forward are too high.
鈥淭here鈥檚 a lot of us who have felt that the 2 percent, on top of the 1 percent 鈥� is going to be excessive,鈥� Ms. Cortiella said. 鈥淎t some point, you will have 鈥榰sed up鈥� all of the kids in the most significant categories,鈥� she said, referring to children who have obvious difficulties that would prevent them from performing well on tests.
鈥淭hen, you鈥檒l begin to nibble into the categories that, by their definition, should be able to perform to grade level,鈥� Ms. Cortiella said.
Katherine Beh Neas, the director of congressional affairs for the Chicago-based Easter Seals, said the Education Department is attempting to answer a good question: 鈥淗ow do you include these kids into the accountability system in a way that鈥檚 meaningful?鈥�
鈥淭o make it so that as many as 30 percent are put on a different standard, with different expectations, gives us pause,鈥� she said, referring to the proportion of students with disabilities who are potentially affected by the flexibility policies.
In addition, the Education Department hasn鈥檛 defined just who would fall into the 2 percent category, she said.
鈥淲hat we鈥檝e been asking them for is guidance to [individualized education program] teams in how to make this decision,鈥� Ms. Neas said. Such teams, under the main federal law on special education, draw up plans for educating students with disabilities.
Under the proposed regulation, states would be required to develop a way of determining which students should take the different tests, and would have to re-evaluate students each year to see if the modified assessments are still necessary. Also, the modified assessments would have to be aligned with grade-level curricula, so a 6th grader could not take a test intended for a 3rd grader, for example.
In addition, students assessed under the modified achievement standards would have to be receiving grade-level instruction in the relevant subjects. And the use of a modified test could not preclude a student from earning a regular high school diploma.
鈥淲e鈥檙e open to new ideas, just so long as we all stick to what I call the bright lines of the law鈥攁nnually assessing students, disaggregating data, and closing the achievement gap by 2014,鈥� Secretary Spellings said. Under the No Child Left Behind law, students in all subgroups must be at 100 percent proficiency by the 2013-14 school year.
The Education Department gave states an opportunity to use interim measures to adjust their test scores for the 2004-05 school year. The department plans to extend the interim policy for the 2005-06 school year to allow 75 days of public comment on the proposed regulation, which was published in the Federal Register on Dec. 15.
