The Advocacy Institute has identified a number of issues pertaining to students with disabilities in the context of ESEA waivers given to 34 states + D.C. by the US Dept. of Education (as of February 1, 2013). These issues have been communicated to disability organizations and members of Congress. It should be noted that not all issues pertain to all states that have been given a waiver.

For information on the status of ESEA waivers, visit the U.S. Dept. of Education’s ESEA Flexibility website.

ISSUE 1: Loss of Subgroup Accountability for Test Participation

Current law requires schools and districts to assess at least 95% of all students in tested grades and for every student subgroup, including students with disabilities, in order to achieve Adequate Yearly Progress (AYP). This requirement has been especially helpful to students with disabilities, who, despite an IDEA requirement to be included in testing, have been routinely left out of testing and/or given tests designed for students in lower grades (a practice known as “out of level testing”). The National Center on Educational Outcomes has documented the significant increase in test participation that has occurred across states for students with disabilities since enactment of No Child Left Behind.

While some states have maintained test participation requirements at the same level of rigor in state accountability systems (i.e., keeping the 95% participation requirement as a threshold for all schools), other states have departed from this level of rigor. For example, under Colorado’s plan, a school or district that does not meet the 95% participation rate in more than one subgroup is subject to a lower rating in the accountability system. This type of relaxation of the requirement in current law can lead to significant numbers of students with disabilities being excused from testing. It should be noted that some state applications are unclear regarding test participation, making it difficult to determine whether the rigor of current law will be upheld.

 –> See our analysis of test participation requirements in the state plans of the first eleven states receiving ESEA waiver.

ISSUE 2: Loss of Subgroup Accountability for Performance

Many states have created new consolidated subgroups as part of their accountability systems approved under the ESEA Flexibility program. These groups—frequently referred to as “super groups”—combine the performance results of several subgroups in current law, often low-income, English language learners, and students with disabilities, with no student counting more than once. While this approach may result in more schools being held accountable, particularly small schools that otherwise escape accountability due to “n” size thresholds, it can also result in masking the performance of the individual subgroups being combined. It also suggests that a student with one challenge, say limited English, has the same needs as a student with multiple challenges, when in fact this is not the case.

The use of consolidated groups to identify schools in need of improvement (Priority, Focus) also dilutes the impact any one subgroup can have on a school’s status and is likely to lead to decreased focus on needy students, including students with disabilities.

ISSUE 3: Differentiated Achievement Targets

While current law requires Measureable Annual Objectives or AMOs to be the same for all schools, districts, and student subgroups, the ESEA Flexibility relaxed this requirement and allowed states to set new AMOs using a variety of approaches. While all of the approaches required a greater rate of improvement for those furthest behind, the resulting AMOs continue to limit the expectations of students with disabilities, who are often the lowest performing group.

Almost all states elected to establish achievement targets that vary by student subgroup. Some of the states that have taken the differentiated target approach for subgroups have also elected to set AMOs for every school in the state. This approach to customized AMOs will result in all schools and districts being challenged to improve, both overall and for every subgroup, while states that have established subgroup AMOs that apply to all schools will have large numbers of schools exceeding the targets and many schools for which the targets are completely out of reach.

ISSUE 4: Decreased Focus on Graduation Rates

While U.S. ED has clearly stated that ESEA Flexibility did not waive the requirements for graduation rates set forth in the 2008 ESEA federal regulation, states have received approval of state accountability plans that clearly do not uphold these requirements.

Among the problems identified are: graduation rate counting too little within the state’s system; inadequate expectations for improvement; lack of accountability for student subgroups.

As recently illustrated by the 4-year cohort graduation rate data released by U.S. ED (see there is significant disparity across student subgroup in many states. Only by focusing attention to these disparities will improvement occur.

ISSUE 5: Limited Interventions

The ESEA Flexibility requirement to identify the lowest performing Title I schools in the state as in need of comprehensive interventions (Priority Schools) and another group (Focus Schools) with greatest gaps in achievement or graduation rates in need of targeted interventions leaves many schools with large groups of failing students without any requirement to undertake improvement activities. This limited intervention approach could be particularly harmful to students with disabilities, since they are not likely to be highly concentrated in the lowest performing schools in the state.

ISSUE 6: Students with Significant Cognitive Disabilities Excluded from Growth

All states receiving ESEA Flexibility intend to incorporate a measure of student growth into their state accountability systems. However, some states have indicated that students with the most significant cognitive disabilities who participate in state assessment systems via an Alternate Assessment on Alternate Achievement Standards will not be included in growth calculations.

This exclusion of a portion of students with disabilities raises concerns regarding their rights under Section 504 as well as the IDEA. States should be required to include all students in all aspects of their state accountability systems.

ISSUE 7: Transitioning Students with Disabilities from the Alternate Assessment on Modified Achievement Standards to the Regular Assessment

States with approved ESEA Flexibility applications are required to end the use of the Alternate Assessment on Modified Academic Achievement Standards (AA-MAS) currently allowed by ESEA Federal regulations (§ 200.1(e)). While this is viewed as a positive move—putting those students currently assessed using the AA-MAS on a course to better ensure access to the general curriculum and a regular high school diploma—it also poses a significant risk if not handled properly.

States that must discontinue use of the AA-MAS as a condition of their waiver are: CT, GA, IN, KS, LA, MD, MI, MN, NC, OK, TN, VA.

The U.S. ED should provide states required to discontinue an AA-MAS with technical assistance to assist with planning and implementation. A review of states’ plans to accomplish this transition should be incorporated into U.S. ED’s monitoring of ESEA Flexibility.

–> Read more about ESEA Waivers:

Education Trust: A Step Forward or a Step Back? State Accountability in the Waiver Era

Center on Education Policy: NCLB Waivers and Accountability

Collaborative to Promote Self-Determination: Press Release on occasion of Senate hearing Feb. 7, 2013