Smarter Balanced Field Test Results Show Major Gaps for Students with Disabilities

January 1st, 2015

Smarter Balanced Assessment Consortium
Disaggregated 2014 Field Test Data

The Smarter Balanced Assessment Consortium (SBAC) released results of its 2014 field testing on December 22, 2014. Results included projections of student performance on the assessments based on the field test demographic sample by content area, grade level and demographic groups as defined by No Child Left Behind.

Projections of student results are valid only for the Consortium as a whole and cannot be interpreted on a state-by-state basis. SBAC states are listed here.

Below is a comparison of the percent of all students and students with Individualized Education Programs (IEPs) performing at each of the following achievement levels:

Level 4 – Highest Level  – At Gr. 11 – Ready for credit-earning college work

Level 3 – At Gr. 11 — Ready for credit-earning college work if continues to progress in Gr. 12

Level 2 – Approaching readiness

Level 1 – Lowest Level




Level 1

Level 2

Level 3

Level 4




Level 1

Level 2

Level 3

Level 4

Gr. 3






Gr. 3


























Gr. 4






Gr. 4


























Gr. 5






Gr. 5


























Gr. 6






Gr. 6


























Gr. 7






Gr. 7


























Gr. 8






Gr. 8


























Gr. 11






Gr. 11


























Compiled by The Advocacy Institute
Disaggregated Field Test Data (DOCX) (PDF)



Fall 2014 Education & Disability Policy Webinar Series

October 13th, 2014

Education & Disability Policy
3 Part Webinar Series

This three part webinar series addressed federal policy as it relates to disability and education.  The series was hosted by nine national organizations focused on students with disabilities, listed below.

Webinar Archives

Topic: Introduction to Education Policy ~ Understanding ESEA and IDEA

Conducted October 30, 2014
View archive  ::  Download handout

Topic: High Expectations, Assessments, and Quality of Education

Conducted November 20, 2014
View archive

Topic: Graduation ~
Considerations and Implications for Students with Disabilities

Conducted December 11, 2014
View archive
  ::  Download handout



Webinar sponsors




Support UDL in Education Funding Priorities

July 24th, 2014

Kids need your help! The US Department of Education (Department) has published its draft priorities and definitions to guide its discretionary grant programs for the coming years. The priorities were last undated in 2010.

To support a comprehensive education agenda, the Secretary proposes 15 priorities and related definitions for use in discretionary grant programs.

Sadly, the proposed priorities do not include universal design for learning (UDL).  The Department’s own National Educational Technology Plan as well as the Higher Education Act (last reauthorized by Congress in 2008) emphasis the potential of UDL to raise educational opportunity and outcomes for all learners. But it won’t happen without funding! 

To help support UDL in the new education funding priorities, submit a comment by following these steps:

 The deadline to submit comments is 11:59 p.m. EDT on Thursday, July 24



I urge the US Department of Education to include universal design for learning (UDL) in its proposed supplemental priorities and definitions for discretionary funding. Given the potential of UDL to support students in the development of college- and career-readiness as well as the prominence of UDL in the Department’s National Educational Technology Plan 2010 and the Higher Education Act, it is essential that UDL have a prominent role in the Departments comprehensive education agenda. This will not happen without inclusion in the proposed priorities and definitions.


I am writing to express concern with the apparent absence of universal design for learning (UDL) in the proposed priorities and definitions. In particular, Proposed Priority 3 – Promoting Personalized Learning – fails to mention the principles of UDL in the discussion on personalized learning. This oversight is unfortunate, given the emphasis in the Department’s National Educational Technology Plan 2010 on personalized learning and UDL as two key concepts that can support learners who have been marginalized by traditional educational settings (Goal 1.3).

Proposed Priority 3 further confuses the matter by using the phrase “universal design principles.” Although similar, the concepts of “universal design” and “universal design for learning” have two very different meanings.

The term “universal design for learning” is defined in the Higher Education Act as follows:

The term “universal design for learning” means a scientifically valid framework for guiding educational practice that—

(A) provides flexibility in the ways information is presented, in the ways students respond or demonstrate knowledge and skills, and in the ways students are engaged; and

(B) reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all students, including students with disabilities and students who are limited English proficient (20 U.S.C. § 1003(24)).

The Higher Education Act also refers to UDL in the context of teacher preparation programs that enroll students receiving Federal assistance – for example, by requiring states to describe how these programs prepare future teachers to integrate technology effectively into curricula and instruction, including the use of activities that are consistent with the principles of UDL (20 U.S.C. § 1022d(b)(1)(K)).


Given the potential of UDL to support students in the development of college- and career-readiness as well as the prominence of UDL in the Department’s National Educational Technology Plan 2010 and the Higher Education Act, I recommend the following:

  • Rename Proposed Priority 3, consistent with the National Educational Technology Plan 2010, as follows: “Promoting Personalized Learning and Universal Design for Learning.”
  • Replace the phrase “universal design principles” in Proposed Priority 3 with the phrase “principles of universal design for learning.”
  • Revise the background discussion under Proposed Priority 3 to acknowledge the role that UDL can play as a means to facilitate personalization and the effective use of technology in education. With its emphasis on providing multiple means of representation, multiple means of strategic action, and multiple means of engagement, UDL can serve as a guide for improving curricular and instructional goals, materials, methods, and assessments in a manner that addresses the anticipated variability among all students.
  • Revise the third bullet under Proposed Priority 11 – Leveraging Technology to Support Instructional Practice and Professional Development – as follows: “Enabling the creation of personalized learning environments based on the principles of UDL.”
  • Add a definition of UDL (as defined in the Higher Education Act) to the proposed definitions.



June 2nd, 2014

DAY OF ACTION :: JUNE 12, 2014



On June 12, 2014, please call your two U.S. Senators and your Member of the U.S. House of Representatives and ask them to cosponsor the Keeping All Students Safe Act, Senate Bill S. 2036 and House Bill H.R. 1893. Ask your friends and family to do the same.

HERE’S HOW: Call 202-224-3121 and ask for your Senators and Representative. If you cannot call, then please email (Senate information available here;  House information available here)

Congress must hear from thousands of parents, people with disabilities, students, advocates, professionals, friends, families, and neighbors.  Personalize your message!  Describe your connection to disability. If you have a story about restraint or seclusion or worry that it could affect your child or friends, please say so.  Explain how you, your family members, friends, and those with disabilities whom you advocate for have the right to be protected.



Please cosponsor the Keeping All Students Safe Act, S.2036 and H.R. 1893, and protect all American students nationwide from restraint and seclusion in our nation’s schools.  Over 110,000 students were subjected to restraint and seclusion in 2011-12.  These procedures have killed, injured, and traumatized students, according to Congressional reports.  They include a child suffocated in restraint after he tried to get lunch; a 7 year old who died in restraint after blowing bubbles in her milk, and a young teen who hung himself while his teacher sat outside the seclusion room.  These dangerous procedures are often used when no one is at risk of harm.  Parents often are not notified or find out much later; prompt notification is necessary to detect concussions and seek medical help.  The Keeping All Students Safe Act, S. 2036 and H.R. 1893, will forbid the use of restraint except in emergencies threatening physical safety.  Both will prevent non-emergency seclusion.  Both require schools to notify parents on the same day.  The bills will promote a necessary shift towards positive behavioral interventions that evidence shows will keep students safe.



  • A Government Accountability Office (GAO) report found that 20 students had died in seclusion; countless others have been injured and traumatized, according to numerous reports.   One teen hung himself in a seclusion room while staff sat outside the locked door; a seven year old died face down in physical restraint after blowing bubbles in her milk; and a young teen was suffocated face down in restraint by his teacher twice his size when he tried to get lunch.  Recent stories include an 8 year old with Down Syndrome whose shoes were duct-taped so tightly that she could not walk; a 10 year old with autism who was pinned face down after a tantrum over a puzzle; and a child with Cerebral Palsy who severed her finger when confined in seclusion.  Parents often do not learn that restraint/seclusion occurred or learn long after the events.  Prompt notification is important to seek medical care and to work with schools to prevent future episodes.
  • The most recent data has shown that in 2011-12, over 110,000 students were subjected to restraint and seclusion.  These included at least 70,000 students were subjected to physical restraint; 37,000, to isolated seclusion; and nearly 4,000 to mechanical restraint.  The actual total is likely much higher.  Restraint and Seclusion are used disproportionately upon students with disabilities and minority students.
  • Both Congressional bills, S. 2036 and H.R. 1893, will forbid the use of restraint except in emergencies threatening physical safety.  Both seek to prevent non-emergency seclusion:  the House bill, by limiting it to threats of physical harm; the Senate, by banning it.  Both bills require schools to notify parents on the same day.  Prompt notification enables parents to seek medical care for concussions or other injuries and to work with schools to prevent recurrences.  Both bills will ban restraints that impede breathing, and dangerous mechanical and chemical restraints.  They will ensure that teachers have the tools and resources they need to prevent challenging behaviors.  The bills will enhance public oversight by requiring data reporting and collection.
  • The Keeping All Students Safe Act will shift schools towards preventing problematic behavior through evidence-based positive behavioral interventions and supports, and keep students and staff safe.  In many cases, the use of positive supports and interventions greatly diminishes and even eliminates the need to use restraint and seclusion.  For example, the Centennial School in Pennsylvania cut restraint and seclusion use from over 1,000 occurrences per year to less than ten through the use of positive intervention plans.  Montgomery County, Virginia uses “easily accessible, evidence-based practices” that have reduced crisis-level behaviors by 78% and targeted problem behaviors by 81%, according to Senate testimony.  Restraint and seclusion are rarely used.
  • Many states don’t adequately protect all students from restraint and seclusion.  Many allow their use when no one’s safety is in danger.  Only 14 states restrict restraint to dangers threatening safety emergencies for all children; only 18, for children with disabilities.  Only 1 state bans seclusion of all children; 4 ban seclusion of children with disabilities, and another 10 limit seclusion to physical safety emergencies.  Only 20 states require parents of all children be informed of restraint and seclusion use.  Roughly half of all states allow restraints that impede breathing.



Listen Up, Louisiana

May 15th, 2014

H.B. 1015 :: Right Problem, Wrong Solution



A bill working its way through the Louisiana state legislature (H.B. 1015) proposes significant changes to the manner in which the state’s 70,000 + students with disabilities will be educated.

Designed to address the exceedingly low rate that students with disabilities earn a regular high school diploma (see table below), H.B. 1015 will allow IEP teams to substitute IEP goals for any and all of the state’s graduation requirements that apply to all other students. The same applies to grade promotion.

The proposal has lots of support – from parents, from legislators, and from the state’s Developmental Disabilities Council, which is working hard for its passage. There is alot of misinformation associated with the rationale for this bill – primarily the inaccurate claim that 28 states leave graduation requirements for students with disabilities up to the IEP team. While many states allow IEP teams some level of involvement in matters related to how a student will exit school, most are restricted by state and local policies. Few are as sweeping as the policy proposed by H.B. 1015.

There’s a couple of things fundamentally wrong with the provisions in H.B. 1015, particularly those pertaining to graduation. The “alternate pathway” will lead to students with disabilities receiving a regular high school diploma with no guarantee that the document represents attainment of skills and knowledge needed for life beyond high school. Unfortunately, inappropriate use of IEP goals – and the IEP team that is charged with formulating the goals – is rampant. In fact, it found its way into discussions of federal education policy a few years back, as we detailed here. The consequences are depicted in the cartoon below, from the works of Michael Giangreco:

Reprinted with permission: Giangreco, M.F. (1998). Ants in his pants: Absurdities and realities of special education. Minnetonka, MN: Peytral Publications

The well-meaning folks in Louisiana need to go back to the drawing board for the following reasons:

  • the sweeping authority given the IEP team in H.B. 1015 is almost certain to result in a violation of the rights of students with disabilities under Section 504 of the Rehabilitation Act of 1973. Specially, their right to comparable benefits as those that confer to their non-disabled peers;
  • special education services are terminated when a student is awarded a regular diploma, thus, students in great need of services through age 21 (as allowed by state law) may be shortchanged;
  • the complete lack of involvement and oversight by the Board of Elementary and Secondary Education and the Louisiana Department of Education provides no checks and balances for the application of the “alternate pathway,” thus, a student who receives 30 minutes of speech therapy per week for articulation problems could be excused from graduation requirements just as easily as a student with significant cognitive disabilities;
  • students, parents, institutions of higher education and employers will be confronted with a regular diploma that means little if anything to life beyond school – and means something different for every student.

The poor academic performance of students with disabilities in Louisiana shouldn’t be used as a rationale for moving away from state standards, assessment results, and graduation requirements. While H.B. 1015, if implemented, might produce a bump in graduation rates, it will do little to improve academic performance. In fact, states with the highest graduation rates for students with disabilities have very tough and tight policies – states like Massachusetts and Maryland.

As articulated by Jeff Spitzer-Resnick in his recent blog post, its time to Stop Paternalizing Children with Disabilities.

As first appeared in Education Week January 28, 2014. Reprinted with permission from Editorial Projects in Education.

The writer is director of The Advocacy Institute and author of Diplomas at Risk: A Critical Look at the Graduation Rate of Students with Learning Disabilities, a 2013 report published by the National Center for Learning Disabilities. The sponsor of H.B. 1015 misrepresented the purpose and recommendations of this report in his opening statement to the House Education Committee on April 29, 2014. The National Center for Learning Disabilities has sent this letter to the members of the Louisiana House and Senate.


Say NO to Proposed Revisions to Michigan Administrative Rules for Special Education

February 18th, 2014


Action  Alert  *  Action  Alert  *  Action  Alert  Action  Alert

Tell Michigan Department of Education, State Superintendent Michael Flanagan and Governor Rick Snyder, NO to Devastating Revisions to the Michigan Administrative Rules for Special Education.

Public Comment period is short and ends at 5:00 p.m. on Thursday, March 13, 2014

ISSUE: The Michigan Department of Education is proposing catastrophic changes to the rules that govern how students with IEPs are educated in Michigan public schools.

The public comment period is SHORT and WAYS TO COMMENT ARE LIMITED. If these rule revisions become reality in Michigan it could lead to a landside of similar revisions in states across the U.S.

Proposed revisions and additional information available here.

Public Comment will only be accepted through the following methods:

  • At two Public Hearings, both on March 10th:

March 10, 2014 – 1:00 p.m.–3:00 p.m.
Detroit School of Arts
123 Selden Street
Detroit, Michigan 48201

March 10, 2014 – 4:00 p.m.–6:00 p.m.
Lansing Community College West Campus
5708 Cornerstone Drive
Lansing, Michigan 48917

  • Via U.S. Mail to:

Public Comment
Office of Special Education
Michigan Department of Education
P.O. Box 30008
Lansing, MI 48909

Say NO to these special education rule revisions …

× Giving local control to Intermediate School Districts (ISD) and school districts to determine special education staffing annually based upon the number of students will explode special education staff caseloads.

× Removing all transparency from the ISD “alternate special education plan.”  MI ISDs have authority to override all special education programs, program sizes, teacher caseloads and student age spans, and create their own.  The MI DOE is now proposing to remove all transparency and only require that the ISD keeps a copy of this “alternate plan” on file.

× Requiring parents to initiate consent for special education prior to convening an Individualized Education Program (IEP) team is incongruent with the IDEA 300.306 and devalues the important role that parents play in determining eligibility and services

× Establishing that a student will only be a student with a disability until the high school credits necessary for a diploma are earned and then a district can unceremoniously exit the student and with no concern for the student’s preparedness for post-secondary education and employability.

× Requiring paraprofessionals to have only a high school diploma. Ensuring the lowest level of qualifications for staff who provide direct instruction in reading, written expression and mathematics.

× Narrowing the criteria to determine if a student is eligible under an Autism Spectrum Disorder. This will eliminate students on the ASD spectrum needing specialized instruction and related services.

× Eliminating short term objectives for all students. This removes accountable and measurable progress.

× Removing the ‘multidisciplinary evaluation team” and new limitations on the education personnel responsible for evaluating students in thirteen areas of eligibility.

× Watering down requirements for Hearing Impairment and Visual Impairment teachers due to the critical shortage. So students will be short-changed.

× Allowing physician assistants (bachelor’s degree and do not specialize in pediatric evaluations for disabilities) to be on the evaluation team to determine a Physical Impairment (PI), Other Health Impairment (OHI), Traumatic Brain Injury (TBI) and Deaf-Blind.

× Requiring only a psychiatrist, psychologist and social worker in determining a student’s eligibility for an Emotional Impairment How do you “rule out a learning disability” when no achievement testing or cognitive battery is conducted?

Contrary to MI DOE’s assertion, these proposed revisions have nothing to do with “improving student outcomes.” Rather, they will allow the state of Michigan, its ISDs and LEAs to balance their budgets on the backs of students with disabilities.

Eliminating the state-imposed special education rules that govern teacher caseloads, special education programs, program sizes and student age spans will not improve outcomes.

QUESTIONS? Contact MarcieLipsitt at

See how Michigan students with disabilities perform!



Miller, Tri-Caucus Call on Department of Education to Better Protect Students’ Civil Rights and Promote Equity

February 13th, 2014

FEBRUARY 12, 2014

Rep. George Miller (D-Calif.), the Congressional Black Caucus, the Congressional Hispanic Caucus, and the Congressional Asian Pacific American Caucus sent a letter to Secretary of Education Arne Duncan expressing concerns regarding ED’s approved policies under Elementary and Secondary Education Act (ESEA) flexibility that weaken accountability for student achievement. The press release and letter text are available here.

According to the press release, 35 states are currently in the process of seeking approval from ED for an extension of an existing waiver that provides exemptions from specific ESEA requirements.

Unfortunately, some of the state waivers that were originally approved in 2012 do not adequately protect students’ right to an equal education. Student subgroups, such as students of color, low-income students, English learners, and students with disabilities, are especially vulnerable to being denied access to the same high-quality education as other American children. Miller and the Tri-Caucus are concerned that those equity provisions will be further diminished during the current extension process, and are calling on ED to require that states make any corrections to their policies that are necessary in order to promote equality.

From the letter:

Students with Disabilities

We are concerned that some policies, including graduation rate and super subgroup policies approved under ESEA flexibility, are negatively impacting students with disabilities.  Of additional concern, is the ongoing development and implementation of new regular and alternate assessments for this population.  Students with disabilities have made marked gains in recent decades, due largely to federal focus on not only ensuring that all students be taught to and assessed on high academic standards, but also that states and school districts be held accountable for reporting and improving outcomes for all students.  Through the extension process, we expect you to reaffirm ED’s commitment to ensuring that ESEA flexibility in no way undermines the federal commitment to equitably educate students with disabilities.

The letter validates many of the concerns raised in our report, ESEA Flexibility: Issues for
Students with Disabilities
, released in March 2013. As we have seen with the proposal from the New York State Education Department, the ESEA Flexibility extension process holds great peril for students with disabilities.

States now eligible to apply for a one-year extension of their ESEA Flexibility are AR, AZ, CO, CT, DC, DE, FL, GA, ID, IN, KS, KY, LA, MD, MA, MI, MN, MS, MO, NV, NJ, NM, NY, NC, OH, OK, OR, RI, SC, SD, TN, UT, VA, WA, WI. Details on all state ESEA Flexibility applications are available here.  Details on requests for an extension are available here.


New York Proposes Out-of-Level Testing for Students with Disabilities

January 14th, 2014

The New York State Education Department (NYSED) is proposing a significant change to the manner in which its students with disabilities (almost 400,000 students) are tested for purposes of school/district/state accountability. The proposal is contained in NYSED’s  application for an extension of its current ESEA Flexibility.

This proposal violates the rights of students with disabilities, conflicts with the principles established by the U.S. Dept. of Education (USED) regarding waiving some provisions of the Elementary and Secondary Education Act (ESEA) due to the inaction of Congress to update the law, and could create an incentive to inappropriately put students into special education.

JANUARY 29, 2014 UPDATE: Thanks to everyone who submitted comments in opposition to this proposal during the public comment period (Jan. 16-28, 2014). The proposal comes before the New York Board of Regents for a vote at its meeting on Feb. 10-11, 2014. 

FEBRUARY 1, 2014 UPDATE: U.S. Education Ass’t Secretary reaffirms commitment to maintain requirement that students with disabilities be tested at their enrolled grade level for purposes of ESEA accountability. Read her statement here.

FEBRUARY 8, 2014 UPDATE: NYSED releases revised proposal to test some students with disabilities below grade level. Despite hundreds of comments in opposition to this proposal, NYSED will ask the NY Board of Regents for approval to move it forward to the U.S. Dept. of Education as part of its application for an extension of its ESEA Flexibility. The Board of Regents meets February 10-11, 2014.Info available here.

FEBRUARY 10, 2014 UPDATE: New York Board of Regents approves NYSED ESEA Flexibility Extension request including proposal for out-of-level testing for some students with disabilities. The proposal will now move forward to the U.S. Dept. of Education for consideration.

Proposed revisions to the initial proposal are stated as:

“The Department has refined its proposal to more clearly identify eligibility criteria for the subgroup of students for which this waiver can apply; limited how the scores of students on instructional level assessments can be used for accountability purposes; and has committed to public reporting of both State and district disaggregated data on the use of this assessment for students with disabilities. Additional guidance and professional development for districts, Committees on Special Education and parents will be provided upon approval of the waiver. In particular, the Department has specified five criteria that students must meet in order to be eligible for participation in instructional level testing as well as identified factors such as a student’s disability category that may not be used as a basis for determining a student’s eligibility; reduced from .93 to .7 percent in English language arts and from 2.34 to 1.5 percent in mathematics the percentage of students whose instructional level scores may be used for accountability purposes; and limited to “partial credit” the adjustment to the Performance Index that would result from a student scoring at or above Level 2 on an instructional level assessment.”

The revised amendment appears on pages 11-15 and analysis of comments appears on pags 32-40 of the full document here.


View comments submitted by leading civil rights and disability rights advocacy organizations:


New York received approval of its initial application for  (ESEA) Flexibility on May 12, 2012. New York’s approved request is available here.

New York’s ESEA Flexibility did not give them permission to assess students with disabilities in ways other than those already authorized under current ESEA Federal regulations. These options are:

    • General assessment without accommodations;
    • General assessment with accommodations;
    • Alternate Assessment on Alternate Academic Achievement Standards (AA-AAS), known in NY as the NYSAA.

Under the requirements of ESEA, all students must be administered the assessment for the grade level in which they are enrolled.

New York is currently part of assessment consortia that are developing new assessments aligned with the Common Core State Standards. These are PARCC for the general assessment and the National Center and State Collaborative for the AA-AAS.


New York’s current ESEA Flexibility expires at the end of the current school year (2013-2014). The state must now apply for a one-year ESEA Flexibility extension. Conditions for applying for an extension were laid out in a letter to Chief State School Officers from US Education Ass’t Secretary Deb Delisle back in November 2013.

As part of its ESEA Flexibility extension application, New York is proposing to create an additional way to assess some of its students with disabilities. This approach – known as “out-of-level” or “off-grade-level” testing is not allowed under current ESEA regulations. The practice was in wide-spread use before the enactment of the latest version of the ESEA – known as No Child Left Behind – not just for students with disabilities but for many students who weren’t expected to perform at grade level, as recalled by civil rights advocate Dianne Piche in this Huffington Post article.

The specifics of New York’s proposal appear below. Complete information on the proposed amendments to New York’s ESEA Flexibility extension application are at

Amendment Regarding Testing Requirements for Students with Disabilities
(excerpted from the full proposal available here.)

There is a group of students with significant cognitive disabilities who cannot demonstrate what they know and can do on the general grade level assessments, even with accommodations. These are students who are not eligible for the State’s alternate assessment based on alternate academic achievement standards. This subgroup of students can make significant progress, but are not likely to reach grade-level achievement in the time frame covered by their individualized education programs (IEP).

NYSED is applying for a waiver to allow school districts to administer the general State assessments to these students with disabilities, but at their appropriate instructional grade levels, provided that
(1) the State assessment administered to the student is not more than two grade levels below the student’s chronological grade level; and (2) the student is assessed at a higher grade level for each subsequent year. The student’s instructional grade level would be calculated annually and separately for English Language Arts (ELA) and math.

Allow the proficient and advanced scores of those students assessed in accordance with their instructional grade levels be used for accountability purposes, provided that the number of those scores at the LEA and at the State levels, separately, does not exceed the .93 percent of all students in the grades assessed in ELA and 2.37 percent of all students in grades 3-8 assessed in Math.

To ensure appropriate time for dissemination of guidance to Committees on Special Education who would make IEP recommendations for student participation in the instructional level State assessment, this waiver would go into effect during the 2014-15 school year.


Until the State can develop and implement adaptive assessments, NYSED requests to more appropriately assess, for instructional and State accountability purposes, the performance of students with significant cognitive disabilities who cannot, because of the severity of their disabilities, participate in chronological grade level instruction.

These students, while they do not meet the State’s definition of a student with a significant cognitive disability appropriate for the State’s alternate assessment, may be able to meet the State’s learning standards over time. However, these students need to be provided with instruction with special education supports and services at a pace and level commensurate with their needs and abilities and their individual rates of learning.

When students with disabilities are required to participate in an assessment at their chronological age significantly misaligned with content learned at their instructional level, the assessment may not provide as much instructionally actionable information on student performance or foster the most prudent instructional decisions. For these students, State assessments do not provide meaningful measures of growth for purposes of teacher and leader evaluations.

NYSED holds all schools and students to high expectations and believes this waiver will lead to more appropriate instruction and assessment of students, while ensuring that students with disabilities participate in the general curriculum and the same State assessments, but closer to their instructional levels in order to obtain instructionally relevant information from the assessments.

The State has calculated the percentage of students who have participated in the chronological age assessments and found that in school year 2012-13, .93 percent perform at chance level on the ELA exams and approximately 2.37 percent of students score at chance on the Math exams.

The State would establish criteria, based on objective and valid data, for demonstrating that the student’s current level of performance is two or more years below his/her chronological grade level and demonstrating the student’s progress (or lack of progress) over a sufficient period of time. The state would also create a profile of a student who, based on individual evaluation information identifies the student as having intellectual or cognitive deficits, such as autism, intellectual disability, traumatic brain injuries, neurodegenerative diseases or severe learning disabilities.

To provide further safeguards, the State would require:

• A determination by CSE that the student does not meet the State’s definition of a student with disabilities who is eligible for the State’s Alternate Assessment; and

• Documentation that shows that the student would need extensive modifications and accommodations to curriculum, instruction and assignments to access the curriculum and that even with such services, the CSE is reasonably certain that the student would fail to achieve chronological age-level proficiency; and

• Documentation of notices to the student’s parent of the recommendation and the reasons for the recommendation; and

• Assurances that the student will not be removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum and that the student will be provided instruction in in the general curriculum with his/her chronological age peers by a highly qualified teacher.

The waiver will support continued focus on ensuring students with disabilities graduate college- and career-ready by ensuring more meaningful State assessment results; support efforts to improve all schools in the State; and support closing of achievement gaps between student subgroups by better identifying the subgroups of students with disabilities and their performance levels.

Process for Consulting with Stakeholders and Summary of Comments on the Students with Disabilities Assessment Waiver Request

Stakeholders from across the State, representing teachers, administrators, parents, and community based organizations have assisted the Department in responding to the requirements of the Renewal application. During the first week of November, an external “Think Tank” was convened, and members were asked to be thought partners with the Department as it drafted its response to the renewal requirements. A large portion of the members of the ESEA Renewal Think Tank also participated in the original ESEA Waiver Think Tank that guided the creation of New York State’s approved ESEA Waiver application. To date, The ESEA Waiver Renewal Think Tank has met five times since convening in November, with various related work groups meeting at least twice additionally during that time period.

In addition to the Think Tank, the Commissioner, Deputy Commissioner and Department staff have solicited feedback on the waiver through meetings with a wide variety of organizations, including the Commissioner’s Advisory Panel for Special Education (of which the majority of members are parents of students with disabilities), representatives of each of the State’s 13 Special Education Parent Centers and federal Parent and Training Information Centers (PTIs), Title I Committee of Practitioners, the English Language Learners Leadership Group, the DTSDE Training Group, and the District Superintendents.

Throughout this process, Department staff evolved the proposed waiver to address stakeholder concerns and recommendations, which were primarily to develop objective criteria to identify the subgroup of students with disabilities who would be eligible for this waiver and to ensure that students with disabilities would continue to have access to the general curriculum in the least restrictive environment. This waiver request has been strongly supported by both parent and advocacy organizations and school personnel throughout the State.


In its ESEA Flexibility Implementation letter from the US Dept. of Ed (USED), New York was reminded that “New York and its local educational agencies (LEAs) remain obligated to comply with all other requirements of the ESEA, including, for example, the fiscal requirements in ESEA section 1120A, the report card requirements, the regulatory requirements for calculating graduation rates, the caps on the number of proficient and advanced scores of students with disabilities who take an alternate assessment based on alternate … academic achievement standards that may be included in accountability determinations, and the requirements related to equitable services.

ASSESSMENTS ALLOWED UNDER ESEA: USED’s ESEA Flexibility does not provide for the use of any other assessments nor the use of “out of level” testing. Thus, the proposal developed by NYSED to “allow districts to administer the State assessments at the students’ instructional grade levels as opposed to their chronological grade levels” does not comply with ESEA Flexibility. Furthermore, the scope of USED’s authority to grant flexibility under No Child Left Behind does not allow it to entertain such a proposal.

The U.S. Dept. of Education addressed the use of out-of-level testing when it issued final regulations to NCLB on July 5, 2002. In its analysis of comments to the proposed regulations, USED stated that:

“One of the bedrock principles of the NCLB Act is that all students can learn to high standards. As a result, section 1111(b)(1) requires challenging academic content and student achievement standards that a State applies to all schools and students in the State. Similarly, section 1111(b)(3) requires a State to develop aligned assessments that the State uses to measure the achievement of all students. These requirements are accurately implemented in Secs. 200.2(b)(1) and 200.6(a) of the final regulations. Specifically, as Sec. 200.6(a)(1) indicates, a State’s assessment system must provide accommodations so that a student with disabilities or a student covered under Section 504 of the Rehabilitation Act of 1973 can be held to the content and achievement standards for the grade in which the student is enrolled. Although “out-of-level” tests, for example, may provide instructional information about a student’s progress, they are not an acceptable means to meet the State’s assessment requirements under Secs. 200.2 and 200.6 or the accountability requirements of the NCLB Act.” (34 CFR Part 200, Final Regulations for Standards and Assessments, issued July 2002)

VIOLATION OF IDEA: The IDEA expressly states that one purpose of “specially designed instruction” is to “ensure access of the child to the general education curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.” This purpose is not qualified with any language allowing the lowering of the educational standards students with disabilities are expected to meet based on their “instructional level.”

VIOLATION OF SECTION 504: Section 504 of the Rehabilitation Act of 1973 and its long-standing regulations also require that students with disabilities not be discriminated against or denied comparable aids, benefits or services. 34 C.F.R.§104.4(b). The setting of lower standards for certain students with disabilities will inevitably mean that most of those students will not be taught those skills and bodies of knowledge expected for all students, at the levels expected for all students. To the extent that New York’s students with disabilities are failing to perform at a proficient level on the state assessments in Reading and Mathematics, the response to that failure should be changes to students’ instructional programs and the level of intensity of their specially designed instruction.

New York bases its proposal on the percentage of students with disabilities who scored at the “chance” level on its state assessments in 2012-13 and then presumes that performance to be equal to performance two grades levels below the student’s chronological age. Yet New York fails to reveal how many students in other groups – such as Black, Hispanic, low-income students scored at the same level. To use this approach as a rationale to use below-level testing for students with disabilities but not other students performing equally poorly is discriminatory.

PARENTAL INVOLVEMENT: New York’s proposal fails to provide adequate parental involvement and does not recognize parents as equal members of a student’s IEP team. The IEP team decides how a student will participate in the state assessment system, as required by IDEA.

LOWER PERFORMANCE TARGETS: ESEA Flexibility allowed NY to establish new “annual measurable objectives” or “AMOs” – the percentage of students who must score at proficient or above in order for a school or district to make “Adequate Yearly Progress” or AYP.

Using this flexibility New York created a “Performance Index” to replace the AMOs required in ESEA. New York’s Performance Index is a value from 0 to 200 that is assigned to an accountability group, indicating how that group performed on a required State test (or approved alternative) in English language arts, mathematics, or science. Student scores on the tests are converted to four performance levels, from Level 1 to Level 4. Each student scoring at level 1 is credited with 0 points, each student scoring at Level 2 with 100 points, and each student scoring at level 3 or 4 with 200 points. The Performance Index16 for each accountability group is calculated by summing the points and diving by the number of students in the group.

This “differentiated” approach allowed the Performance Index for students with disabilities to be set much lower than other groups of students. Allowing these lower expectations was intended to provide schools and districts more attainable performance goals for students with disabilities over the course of six years. (See tables below.) The Performance Index targets were set against a baseline year in which students with disabilities were assessed via the two available options: the general assessment with or without accommodations and the alternate assessment on alternate achievement standards. 

Now, as part of its ESEA Flexibility extension request, NYSED  proposes to further adjust the Performance Index, using the 2012-2013 assessment results for each student subgroup (Amendment 4). This additional target reset will result in much lower expectations for students with disabilities since this group performed significantly lower in 2012-2013 than in previous years.

Just 5 percent of students with disabilities in grades 3-8 scored at or above the proficient levels in English/Language Arts and just 7 percent scored at or above the proficient levels in Math in 2012-2013 (Source: A New Baseline: Measuring Student Progress on the Common Core Learning Standards). (See charts below)

Allowing some students with disabilities to be assessed below their enrolled grade level and then measure the school/district/state against these differentiated (lower) targets would result in unreliable and inaccurate information on the performance of students with disabilities.

Performance of students with disabilities in NY ELA assessment

Performance of students with disabilities on NY Math assessment

Performance Index targets in current NY ESEA Waiver

Tables below are also available in PDF here.

Source: New York State Flexibility Request, May 21, 2012

Students with disabilities perform poorly in TUDA

December 23rd, 2013

December saw the release of the results of the 2013 TUDA – the Trial Urban District Assessment – part of the National Assessment of Educational Progress (NAEP) conducted by the U.S. Dept. of Education. (We blogged about the release of the NAEP at the state and national levels earlier.)

The TUDA reports the achievement of public school students in 21 urban districts in reading and math at grades 4 and 8. Results are broken down by racial/ethnic groups as well as special populations, such as students with disabilities and students eligible for free/reduced-price lunch meals. More info on TUDA is available here.

The achievement of students with disabilities (including both IDEA and 504 eligible students) varied substantially across the TUDAs. However, few districts achieved at a level equal to or better than the nationwide level for students with disabilities.

While most participating districts performed below the nationwide rate on all measures, some districts stand out as exceedingly poor performers. Only one district achieved exceptionally good performance when compared to the nation as a whole. These are:

EXCEEDINGLY POOR (in alphabetical order): Cleveland, Detroit, Fresno, Los Angeles, Milwaukee

EXCEPTIONALLY GOOD: Hillsborough County (FL)

Hillsborough County in Florida was the only district participating in TUDA that outperformed the nation on all four measures (4th/8th Reading and Math). Hillsborough’s TUDA results were reported in the Tampa Bay Newswire.

The performance of students with disabilities compared to those without disabilities is shown below.

MATH – Grade 4

2013 TUDA Math 4th

 MATH – Grade 8

2013 TUDA Math 8th Grade

READING – Grade 4

2013 TUDA Reading 4th Grade

READING – Grade 8

2013 TUDA Reading Grade 8

NAEP and Students with Disabilities: No where to go but up!

November 7th, 2013

The results of the 2013 National Assessment of Educational Progress (NAEP) in Reading and Math were released today. Details are available here. User-friendly digital tools let you display results by state and student groups such as students with disabilities.

Sadly, the performance of students with disabilities has shown little if any improvement over the last three administrations (2009-2011-2013) and the gaps between students with disabilities and those without disabilities continue to be substantial.

However, there has been a substantial improvement in the rate of exclusion of students with disabilities, i.e., the percentage of students with disabilities selected to participate in the sample who were not tested. This practice was addressed by a resolution of the National Assessment Governing Board in 2010. The resolution sought to have students with disabilities participating at a rate of at least 85% in every state. As a result, exclusion rates have plummeted, as shown in the table below. This high rate of participation makes the NAEP results for students with disabilities more representative of the group as a whole. However, high exclusion rates still exist in some states, such as California, Georgia and Maryland. Details on exclusion rates by state on each NAEP assessment are available here.

NAEP exclusion of SDs

Turning to achievement, students with disabilities continue to perform poorly on all NAEP measures.


NAEP 2013 Reading 4th grade



NAEP 2013 Reading 8th


NAEP 2013 Math 4th


NAEP 2013 Math 8th