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


UPDATE: How Safe Is The Schoolhouse?

April 9th, 2013

The updated version of How Safe Is The Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies, written by Jessica Butler, has been published by the Autism National Committee.  The report is dated 3/30/2013 and is available at HowSafeSchoolhouse.pdf

The report finds that:

  • Only 12 states by law limit restraint of all children to emergencies threatening physical danger for all children; 17, limit restraint of children with disabilities in this way.  Only 9 states protect all children from non-emergency seclusion (1 by banning it entirely); only 15 protect children with disabilities from non-emergency seclusion. 33 states lack laws requiring that parents of all children be informed of restraint/seclusion; 22, lack them for children with disabilities.
  • Restraints that impede breathing and threaten life are forbidden by law in only 18 states for all children; 25 states, for children with disabilities.  Children locked in closets and rooms unobserved have been killed and injured, when staff are not watching them.  But 29 states allow schools to seclude children with disabilities without requiring staff to continuously watch them; the number rises to 39 for all children. Mechanical restraints include chairs and other devices that children are locked into; duct tape and bungee cords, ties, rope, and other things used to restrain children; and other devices.  Only 14 states ban mechanical restraint for all children; 18, for all children.  Only 13 states ban dangerous chemical restraints for all children.
  • In general, 17 states have statutes or regulations providing meaningful protections against restraint and seclusion for all children, 30 for children with disabilities.  These have the force of law and must be obeyed.  Even these states offer varying protections, with key safeguards present in some states and missing in others.  In addition, 2 states have laws protecting against one procedure but not the other.  8 have very weak laws (e.g., Nebraska’s regulation instructs school districts to adopt any policy they choose and imposes no requirements whatsoever); and 12 have nonbinding, suggested guidelines that have no legal force and that are more easily changed by the State Department of Education.
  • In December 2009, Congressman George Miller introduced the first national  restraint/seclusion bill, and in 2011, Senator Harkin introduced a similar bill.  Together, the Miller and Harkin bills have had a substantial impact, causing states to adopt and strengthen restraint/seclusion laws to incorporate several of their features.  14 states have either adopted new laws (statutes/regulations) or substantially overhauled existing laws to incorporate their requirements.  For example, 11 incorporate the requirement that physical restraint may not be used unless there is an imminent danger of physical injury for children with disabilities, and 9 for all children.  Since the Harkin bill was introduced, 3 states have added requirements that restraints not prevent a child from communicating that he/she is in medical distress (e.g. cannot breathe).   Of the 20 students who died in the GAO report, at least 4 verbal children told staff that they could not breathe.  Many children have disabilities that prevent them from verbally communicating.

Since the report was finished, two states acted last week.  Arizona passed a law permitting seclusion for any reason as long as parents consent or for emergencies threatening physical harm without consent.  A handful of states have such unlimited consent laws.  AZ does not limit restraint.  Oregon banned free-standing seclusion cells (boxes).  It already has a comprehensive statute in place.  Neither new action affects the findings above.

Seclusion and restraint are highly dangerous interventions that have led to death, injury, and trauma in children.  The GAO collected at least 20 stories of children who died in restraint.  Neither practice should be allowed when there is no emergency posing a danger to physical safety.  With no single federal seclusion or restraint law, America’s 55 million school children are covered by a patchwork of state laws, regulations, nonbinding guidelines, and even utter silence.

Legislation on seclusion and restraint – the Keeping All Students Safe Act – is expected to be introduced in the 113th Congress by Representative George Miller (D-CA). Congressman Miller’s bill will protect all American schoolchildren from dangerous restraint and seclusion.

Many States Lack Compliance with Grad Rate Regulation in ESEA Waiver Plans!

February 13th, 2013

A new report from the Alliance for Excellent Education (AEE) show that only a few states that have received ESEA waivers from the U.S. Dept. of Education are fully implementing the 2008 graduation rate regulations for accountability purposes.

Among the important elements of the 2008 regulations that are being lost is accountability for graduation rates of student subgroups – including students with disabilities. According to the AEE report, eleven states have weak or no subgroup graduation rate accountability. Details for each of these states are below and also found in Appendix B of the AEE report. The state’s 4-year adjusted cohort rate for graduation with a regular diploma for students with disabilities appears in RED (all states available here).

See if your state is on this list!

No Subgroup Graduation Rate Accountability

1. In Arizona, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (Arizona Department of Education, “ESEA Flexibility Request,” 43, 50–51). 67%

2. In Kentucky, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (Kentucky Department of Education, “ESEA Flexibility Request,” 42, 76–77). (Not available)

3. In New Jersey, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Subgroup graduation rates are included in School Performance Reports; however, these reports do not trigger improvement requirements (New Jersey Department of Education, “ESEA Flexibility Request,” 34–36, 38, 52). 73%

4. In New Mexico, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (New Mexico Public Education Department, “ESEA Flexibility Request,” 42, 45). 47%

5. In North Carolina, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification (North Carolina Department of Public Instruction email message to Alliance for Excellent Education, November 19, 2012). 57%

6. In Rhode Island, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (Rhode Island Department of Elementary and Secondary Education, “ESEA Flexibility Request,” 49). 58%

Weak Subgroup Graduation Rate Accountability

7. In Michigan, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Although subgroup graduation rates are included within the accountability system, the graduation rate for a single subgroup does not carry sufficient weight to trigger improvement interventions (Michigan Department of Education, “ESEA Flexibility Request,” 57–58, 60–61, 130–33). 52%

8. In Minnesota, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Although subgroup graduation rates are included within the accountability index, the graduation rate for a single subgroup does not carry sufficient weight to trigger improvement interventions (Minnesota Department of Education, “ESEA Flexibility Request,” 89, 120–21). 56%

9. Nevada limits subgroup accountability to (1) students with an Individualized Education Plan, (2) students with limited English proficiency, and (3) students who qualify for free and reduced-price lunch; Nevada’s approved waiver application does not include subgroups based on race or ethnicity (Nevada Department of Education, “ESEA Flexibility Request,” 63, 118). 23%

10. In Oklahoma, focus school identification is limited to two subgroups and subgroup graduation rate accountability is not included in the state’s accountability index (Oklahoma State Department of Education, “ESEA Flexibility Request,” 34, 80). (Not available)

11. In South Carolina, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Although subgroup graduation rates are included within the accountability index, the graduation rate for a single subgroup does not carry sufficient weight to trigger improvement interventions (South Carolina Department of Education, “ESEA Flexibility Request,” 57–58, 119). 39%

Note: Page numbers refer to the location within the approved waiver application that would likely include information on subgroup graduation rate accountability if the state were to include subgroup graduation rates in the accountability system.

Get the full AEE report, The Effect of ESEA Waiver Plans on High School Graduation Rate Accountability (PDF).

ESEA Waivers: Issues for Students with Disabilities

February 7th, 2013

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

Graduation Rate for Students with Disabilities Varies Widely Across States

November 27th, 2012

The U.S. Dept. of Education has released the first round of high school graduation rate data compiled based upon the common measure known as the “four-year adjusted cohort rate” required by a 2008 federal regulation.

The four-year adjusted cohort graduation rate is the number of students who graduate in four years with a regular high school diploma divided by the number of students who form the adjusted cohort for the graduating class. From the beginning of 9th grade (or the earliest high school grade), students who are entering that grade for the first time form a cohort that is “adjusted” by adding any students who subsequently transfer into the cohort and subtracting any students who subsequently transfer out, emigrate to another country, or die.

For the first time, graduation rates can be compared across states and across student groups, such as students with disabilities. Graduation rate data for all states and all student groups is available here.

Below is a comparison of the graduation rate for all students and students with disabilities by state (note: data for ID, KY, OK, and PR are not available).

Some highlights:

  • Graduation rates for students with disabilities range from a high of 84% (SD) to a low of 23% (MS and NV)
  • Mississippi has the largest gap in graduation rates at 52%
  • Seven states have graduation gaps of 35% or greater (MS, AL, LA, NV, GA, SC, VA)
  • Twenty-five states have graduation gaps of 20% or greater

2010-2011 Grad Rate Comparison

An Advocate Speaks Out

October 6th, 2012

UPDATE: The U.S. Dept. of Education declined California’s request for an ESEA waiver on January 4, 2013. The letter to the president of the California Board of Education is available here.


Most Californians are unaware California recently asked U.S. Department of Education for a waiver of provisions of “No Child Left Behind” (NCLB) claiming:

  • NCLB performance targets are “unrealistic”;
  • Funding and control should be returned to California’s schools; and
  • California’s “robust” accountability system ensures continuing progress for ALL California’s students.

Unfortunately, California’s request failed to mention:

  • NCLB targets – hardly unrealistic – align with IDEA’s goals of high expectations and appropriate educational services to ensure students with disabilities (SWD) become productive members of society;
  • California has no evidence that returning funding and control to local education agencies (“LEA”) will improve outcomes;
  • California’s current education crisis arose under these same LEAs;
  • Despite significant federal stimulus funding to LEAs significant improvement in outcomes for SWD or general education students has not resulted; and
  • There is no evidence California’s accountability system will improve or affect substantive educational outcomes.

California also didn’t mention that many SWD are not making appropriate progress under California’s educational programming; SWD are not appropriately assessed or held to standards ALL California students must meet for graduation (passage of California’s high school exit exam (CAHSEE)); while California’s service delivery system is in disarray.  Yet, California wants even less accountability under NCLB!

An entire generation of children born at CAHSEE’s passage in 1999 has passed through California’s K-12 system, yet California still cannot properly measure all students’ access or progress in state standards. A failure of accountability under NCLB, this also denies student rights under IDEA. Even by the relatively low standard in Rowley, a special education case which measures FAPE by students successfully passing from grade to grade, this seems a prima facie denial of FAPE for California SWD unable to pass the CAHSEE.

In 2000, Assistant Secretary Judith Heumann said: “Because of the benefits that accrue as the result of assessment, exclusion from assessments on the basis of disability generally would violate Section 504 and ADA.”  California appears to annually violate Section 504, ADA, NCLB and IDEA, yet continues to receive federal funding.  If California performs this poorly with accountability obligations, what will happen if accountability obligations are waived? 

Despite US ED guidance requiring states to engage with and solicit input from appropriate stakeholders, California failed to do so.  Instead its request simply “disappeared” SWD.  Given California’s history with SWD this isn’t surprising.  Parents and advocates must hold state and federal education agencies accountable for the educational progress of ALL our children and ensure SWD are “disappeared” no more.

Deborah Blair Porter
October 5, 2012

Click here to read Deborah Porter’s letter to the U.S. Department of Education regarding California’s ESEA flexibility request.

Virginia AMOs: From Biased to Bogus

September 24th, 2012

Following the firestorm over the annual measurable objectives (AMOs) released by the Virginia Dept. of Education back in July and the letter from the U.S. Dept. of Education instructing VDOE to re-do those AMOs, VDOE has released new AMOs for consideration by the Virginia Board of Education at its September 27, 2012 public meeting. The full AMO proposal is available here.

The initial AMOs proposed by VDOE, using a faulty methodology initially approved by USED, were judged unacceptable because they did not result in any significant closing of the achievement gap between low performing students and those performing better; generally Black, Hispanic, low-income, students with disabilities and students with limited English proficiency show significant gaps in achievement in reading and math. While no student group showed significant closing of the gap under the initial AMOs (see Virginia AMO Fact Sheet for details), the African-American community showed the strongest opposition, expressing outrage to the bias of setting lower expectations for students by race. Their actions generated lots of press and helped drawn national attention to the issue.

In its letter to VDOE, the U.S. Dept. of Education instructed the state to identify an alternate methodology that will result in AMOs that require subgroups that are further behind to make greater rates of progress. Has VDOE adequately responded to this direction? It would appear not.

At issue:

–       While USED clearly stated that the initial methodology must be revised, VDOE has applied the same methodology to establish the starting pass rates for all student subgroups as well as the “all students” AMOs for every year through 2017. This approach results in the starting pass rates being set LOWER – in some cases much lower than the actual pass rates for the 2011-2012 school year. See the chart below for a comparison of the actual pass rates for each student group on the Virginia Mathematics assessment in 2011-2012 versus the starting AMO (pass rate) for the same year. In every case the AMO is lower than the actual pass rate, and for English Language Learners it is a full 20 points lower.

The options for setting new AMOs provided to states seeking ESEA flexibility revolve around setting the start point for pass rates using the proficiency rates on2010-2011 assessment  (for Principle 2.B, Options A and B) or another method that is educationally sound and results in ambitious AMOs. (VDOE claimed that it could not use results from the 2010-2011 assessments because the state is in the process of implementing new standards of learning assessments in Math (2011-2012) and Reading (2012-2012))

A comparison of the new AMOs and AMOs that would result from using USED’s Option A is below:

All students: 84 vs.  73 
White: 87.5  vs. 73
Asian: 93.5  vs. 73
Low income: 79  vs. 73
ELL: 85.5  vs. 73
Students with disabilities: 70  vs. 73
Hispanic: 80.5  vs. 73
Black: 76  vs. 73

–        The new AMOs appear to ONLY apply to a school (or a subgroup within a school) that had a pass rate LOWER than the AMOs, as VDOE now states that every school is expected to meet either the AMO or the school’s previous year’s pass rate, whichever is higher (up to 90%). This will prove extremely confusing for the public, and likely even for schools themselves. Additionally, it would be helpful to know roughly how many schools would be in this position. A better approach, which is allowable under the ESEA waivers, would be for VDOE to set individual AMOs for each school (for all students and each subgroup) – ensuring that every school is challenged to improve while expecting more improvement from those schools with the poorest performance.

–        While the new AMOs for low-performing subgroups appear to be rigorous, it is also made clear that schools may still meet the pass rate via safe harbor, which is a 10% reduction in the failure rate over the year prior, with no correlation to the AMOs. Therefore, exactly where subgroups stand in relationship to the AMOs will be difficult to understand.

Where do we go from here?

VDOE should formulate AMOs using the 2011-2012 proficiency rates, calculated to cut in half the proficiency gap for each student group by 2017, and establish AMOs specific to every school and every subgroup within each school.

Test Participation: At Risk under ESEA Flexibility

May 21st, 2012

The No Child Left Behind (the current version of the Elementary and Secondary Education Act or ESEA) requirement that schools, school districts and states test at least 95 percent of all students in the required grades and academic areas—and at least 95 percent of each required subgroup—finally catapulted special education students into the realm of full accountability.

Despite a requirement introduced in the Individuals with Disabilities Education Act (IDEA) in 1997 that all students with disabilities be included in all state and district wide assessments, students with disabilities were systemically excluded from state testing and/or assessed with tests designed for students in lower grades (known as “out-of-level” testing).AYP components

There can be no doubt that NCLB’s participation requirement—part of the trifecta known as “Adequate Yearly Progress” or, simply, “AYP”—finally motivated states to begin to fully include all students in state assessments, including students receiving special education services.

Under AYP, test participation was self-policing. Intended as “quality control,” the provision ensured test participation by inflicting automatic AYP failure if any student subgroup fell below the required 95% threshold. Student performance on state assessments could not trump poor participation. 

2000 participation


Figure 1 shows the percentages of special education students who participated in the general assessments (with or without accommodations) of several states in the 2000-2001 school year. Only one state – Kansas – performed at or above the NCLB requirement for at least 95 percent participation.

By contrast, three years later, participation rates showed a marked improvement. Figure 2 shows the participation rate for 21 states in the 2003-2004 school year (following NCLB implementation) for students receiving special education.

Why Test Participation is Important for Students with Disabilities.

First, it is essential that all kids, including students with disabilities, participate in assessments, because through assessment and public reporting, schools and school districts are held accountable not only to the State but to the students who have a right to be provided an opportunity to learn to the same standards set for all students.  No student can be denied—on the basis of disability— inclusion in their respective state accountability system without violating their civil rights under Section 504 and the ADA.

Second, allowing any students with disabilities (e.g., students with the most significant cognitive disabilities) to be excluded from testing cannot be justified and creates a slippery slope. y. Both IDEA and ESEA require alternate assessments for students with disabilities who cannot participate in general state or district assessments with accommodations.

Third, both schools and parents need to know how students with disabilities are performing on a state’s academic standards for the student’s enrolled grade. This information is critical to planning instruction, identifying effective interventions, improving professional development and considering appropriate accommodations. It helps inform a student’s need(s) for intervention to attain proficiency in core academics such as reading and mathematics for same grade peers. Test results provide objective information to guide IEP teams in decision making and development of goals linked to standards. In many states, test participation at the middle and high school levels may also carry serious consequences such as placement in classes teaching higher order thinking earning a regular high school diploma.

Test Participation in ESEA Flexibility Requests.

ESEA Flexibility  does not waive the statutory requirement under section 1111(b)(2)(I)(ii) of the ESEA mandating  student participation in State assessments (see

Therefore, schools must continue to assess not less than 95 percent of all students and each student subgroup to make Adequate Yearly Progress, though the punitive sanctions for failing to make AYP may be modified.

States receiving ESEA waivers cannot treat students with disabilities differently than other students with respect to the statutory mandate to ensure the participation of all students in state and district assessments that are a key component to the state-developed accountability systems..  The civil rights of students with disabilities cannot be waived.

Based on information contained in the approved ESEA Flexibility Requests (Round 1), the following states have maintained an acceptable focus on test participation, for all students and student subgroups: Kentucky, Massachusetts, Minnesota, and Tennessee.

The following states have failed to articulate how test participation will count in their accountability systems and/or have designed systems that lessen the impact of test participation on schools and districts, compared to current law:  Colorado, Florida, Georgia, Indiana, New Jersey, New Mexico, and Oklahoma.

State specific information

*indicates states with less than adequate test participation requirements or use of test participation within the accountability system.


Colorado’s request indicates the state will require schools/districts to meet a 95% participation rate on the Colorado Student Assessment Program (CSAP) subject areas of reading, math, writing and science (similar to current AYP), as well as a 95% participation rate on the ACT.

Specifically, if a school/district does not meet this 95% participation rate in more than one area, its plan type or accreditation rating is lowered one level. For example, while a school’s overall percent of framework points earned may earn it an Improvement Plan, if it does not meet the participation rate requirement, it is lowered to a Priority Improvement Plan. (pg. 310)

However, according to Appendix 7 – Annotated School Performance Framework Report (High School), schools do not get any credit for test participation and the participation requirement does not apply to student subgroups (as required by current law). It states:

“Schools do not receive points for test participation. However, schools are assigned one accreditation category lower than their points indicate if they do not (1) meet at least 95% participation rate in all or all but one subject area (reading, writing, math, science and COACT), or (2) for schools serving multiple grade levels, meet at least a 95% participation rate in all or all but one subject area when individual subject rates are rolled up across grade levels AND the school makes AYP participation (in reading and math) for each grade level overall (not including disaggregated groups).“

This provision is in direct conflict with current law.


Florida’s request indicates that its school grading system includes test participation.  “Schools cannot receive a grade of “A” if they have tested less than 95% of their students. Schools that test less than 90% of their students are not eligible to receive a school grade. If a school does not test at least 90% of the students the school will receive an “incomplete” grade status and an investigation is conducted culminating in a report to the Commissioner of Education providing the circumstances and reasons for not meeting the percent tested requirement. An “incomplete” grade is not erased until after the investigation is complete and the Commissioner makes a decision as to the consequence of not meeting the minimum participation required.” (Pg 52)

According to Florida’s school grading system (below), a school can earn a “B” if it tests at least 90% of eligible students.

This provision is in direct conflict with current law.


Georgia’s request states that the state’s proposed College and Career Ready Performance Index* (CCRPI) will continue to include participation as an overall factor in the statewide accountability system. “Combining the rigorous indicators within the CCRPI, the innovative way of capturing all High Needs Students, with the participation component will ensure schools and districts receive complete feedback on all student performance.” (pg. 53)

However, no details are provided regarding test participation requirements.

* The CCRPI is under development and not part of the approved waiver request.

This suggests that the state’s system may not comply with current law.


Indiana’s request makes no mention of participation requirements in its state accountability system.

This suggests that the state’s system may not comply with current law.


Kentucky’s requests states clearly that “Prior to making the AMO and being placed into a category, all schools would need to meet a 95% participation rate for all groups of students being tested, and the high schools would need to meet their individualized graduation goal.” (Pg. 56)

Every school in the state will have an AMO/AYP goal. If the school obtains the AMO goal, then the school has made Adequate Yearly Progress (AYP) if it also meets the required participation rate and the graduation goal if it is a high school. (Pg. 58)

Kentucky will calculate test participation rates for each school. The goal for test participation rate shall be at least 95% of the total population and of all groups of students. Making or missing the goal will be used in conjunction with the school’s AMO. If the school makes its AMO but misses its test participation goal, for the All Students group or any subgroup, then the school will be considered to have missed its AMO.

This is in compliance with current law.


Massachusetts’ request clearly states that “A school cannot reach its CPI* goals without achieving a 95-percent participation rate. This applies to students overall and each student group.”

*Math, English-language arts (ELA), and science performance as measured by the Composite Performance Index (CPI).

This is in compliance with current law.


Minnesota’s request presents an accountability system that maintains the current participation requirements in current law.

2.1.17 AYP Calculation: Participation Measurement 2011 (pg. 508) reads:

Schools are required to administer a statewide assessment to all students enrolled in grades three through eight and grades 10 and 11. Schools that do not meet the 95% participation requirement are identified as Not Making AYP. The participation requirement is applied to all disaggregated groups. Enrollment is based on the number of students enrolled over the testing window as reported on MARSS. Participation is based on the number of assessment records reported where the student was present for testing.

This is in compliance with current law.

New Jersey*

New Jersey’s request makes no mention of test participation requirements, by all students or student subgroups.

According to the Request, “key metrics, such as early childhood literacy, chronic absenteeism, 8th grade reading and math proficiency, growth scores on State assessments, AP passing rates, ACT and SAT scores, and high school graduation rates will paint a full and accurate picture of school and district performance.”  (Performance Report Card)

This suggests that the state’s system may not comply with current law.

New Mexico*

New Mexico’s request makes no mention of any test participation requirement (all students or student subgroups) as part of accountability system. (See DETERMINATION OF A SCHOOL’S GRADE at page 316.)

This suggests that the state’s system may not comply with current law.


Oklahoma’s request states that “participation is one of 30 objectives that districts and schools are required to meet. The Participation Index remains the same as the current AYP criteria.”

Each district and school site will be ranked based on the percent of AMOs that they achieve. Districts or sites that meet 0-33% of the AMOs will be designated in the Yellow Category. Those that meet 34-66% of the AMOs will be designated in the Yellow-Green Category. Those that meet 67-100% of the AMOs will be designated in the Green Category.

Therefore, test participation in Oklahoma is just one factor in an array of criteria used to rank schools and districts.

This approach does not align with current law.

Tennessee’s request states clearly that the state will continue to report data for students in a district or school group, with a minimum number of 10. Schools or districts must have at least a 95 percent participation rate in the required Tennessee Comprehensive Assessment Program (TCAP) accountability tests for all students and for each student subgroup. If a school does not meet this participation rate, the school will automatically fail both its achievement and gap closure measures.

This is in compliance with current law.


                                                                                                  Download this document in PDF (6 pgs.)

Disability advocates send comments to USED re ESEA Flexibility

December 26th, 2011

December 22, 2011

Arne Duncan
U.S. Department of Education
400 Maryland, Ave, SW
Washington, DC 20202

Dear Secretary Duncan:

The undersigned organizations of the Consortium for Citizens with Disabilities Education Taskforce are writing to provide the U.S. Department of Education with observations drawn from review of the November submissions of ESEA Flexibility Requests. We offer these comments in hopes that they might be used to provide additional direction to those States that submitted requests in November 2011 as well as feedback to States that have indicated their intent to submit requests in February 2012.

While we understand the Department’s rationale for offering to provide State educational agencies (SEA) with flexibility regarding several of the current provisions in the Elementary and Secondary Education Act (ESEA), we hope that the significant advances regarding the accountability of the academic performance of our nation’s 5.8 million school-age students with disabilities made under No Child Left Behind will not be diminished in the process. To that end, we respectfully request that the Department ensures that ESEA Flexibility Requests provide meaningful information about how students with disabilities will be included in new State-developed plans as the process moves forward.

More specifically, we wish to address the following:


The ESEA Flexibility Request FAQ document, and its addendum, makes clear that an SEA developing a request for ESEA flexibility must “meaningfully engage and solicit input from diverse stakeholders, such as students, parents, community-based organizations, civil rights organizations, organizations representing students with disabilities and English Learners, business organizations, and Indian tribes.” However, after reviewing the 11 Flexibility Requests submitted in November, it is clear that states need additional guidance from the Department about how to meaningfully engage and solicit input from these stakeholders.

When describing how an SEA fulfilled this requirement, most relied heavily on input solicited in prior years about some components of the Flexibility Request with much less detail about soliciting input directly on the Request itself. In addition, few states indicated they provided a draft upon which to provide input. It is not reasonable to expect stakeholders, especially parents, to provide comments based on a brief summary that omits key details affecting accountability for students with disabilities. Even those few states that provided a draft did not request public input until the final week, at most 2 weeks, prior to the submission deadline and gave stakeholders only 7 days to analyze the submission (many of which were hundreds of pages long) and submit comments. In addition, the stakeholder lists provided by the states often refer to only one or two disability organizations that represent parents and children. It is also not sufficient to get input from the state’s advisory panel on special education or other similar entity without broader disability outreach. These committees are not necessarily representative of all the disability interests in the state.

We urge the Department to provide the following guidelines for meaningfully engaging and soliciting input from parents of students with disabilities and disability organizations:

  • A draft of the Flexibility Request should be posted on the SEA website along with an explanation of how the accountability changes would affect students with disabilities.
  • Notices of this posting should be distributed to the disability organizations in the state that represent families of children with a full range of disabilities. LEAs should be expected to distribute the notice to local disability organizations and to parents of students with disabilities. Such efforts could also be assisted by the state’s parent training and information centers, parent community resource centers, and protection and advocacy agencies.
  • States should allow at least 2-3 weeks for public comments and at least an additional week for the state to review the comments and make the necessary changes to the draft.
  •   The SEA should meet personally with key state disability organizations beyond the state advisory panel, including representatives from the parent information and training center, parent community resource centers, the protection and advocacy organization and disability organizations that represent children with the various categories of disabilities under IDEA.
  • Information provided by the SEA, either in public formats or via electronic deliveries should meet the required ADA accessible documentation laws and be available in multiple languages.
  •   The accessibility needs of the community for public meetings should be determined in advance. Based on the needs of the community, information should be provided in multiple languages and in accessible formats, including but not limited to large print, Braille, and audio recording where needed. In addition, American Sign Language (ASL) translation and Communication Access Realtime Language Translation (CART) should be provided where needed.


States submitting ESEA Flexibility Requests must select from one of three options pertaining to the SEA’s development and administration of annual, statewide, aligned, high-quality assessments that provides an accurate measure of student achievement and student growth. Two issues arise regarding assessments for some students with disabilities (IDEA-eligible) in our review of the 11 States that submitted requests in November 2011, as follows:

  • Alternate Assessment on Modified Academic Achievement Standards (AA-MAS)

    States that currently administer an AA-MAS as allowed by ESEA regulations (Georgia, Indiana, Minnesota, Oklahoma, and Tennessee) and have indicated that they are participating in one of the two Race to the Top (RTTT) Assessment State consortia should be required to provide the Department with a comprehensive plan to transition students with disabilities currently taking AA-MAS into the general assessments.

Since the RTTT Assessment consortia are not developing an AA-MAS based on the Common Core State Standards (CCSS) and given the Department’s clear commitment to no longer allow use of AA-MAS for accountability under ESEA, it is critical that those States currently administering this alternate assessment begin planning a responsible phase-out process that protects students from abrupt changes in assessment as well as guarantees these students will be provided instruction in the CCSS curriculum at their enrolled grade level. Such planning should also provide guidance for IEP teams, including parents, on how to achieve a smooth transition for students.
While the current federal regulation governing the use of AA-MAS seeks to limit its use by way of a cap on the percentage of proficient or advanced scores that can be used in AYP determinations, it is increasing evident that many States are vastly exceeding the percentage of students with disabilities that should be assigned to an AA-MAS. As a consequence of this overuse, significant numbers of students with disabilities will be impacted by the shift away from use of AA-MAS.

  •   Alternate Assessment on Alternate Academic Achievement Standards (AA-AAS)

All States currently administer an AA-AAS for students with the most significant cognitive disabilities. Under current ESEA regulations, this alternate assessment must provide results on student achievement that can be aggregated into the performance of the subgroup of all students with disabilities, any other applicable subgroup to which those students being assessed by an AA-AAS belong, as well as the performance for all students. [“To serve the purposes of assessment under title I, an alternate assessment must be aligned with the State’s content standards, must yield results separately in both reading/ language arts and mathematics, and must be designed and implemented in a manner that supports use of the results as an indicator of AYP.” Federal Register, Vol. 68, No. 236, Tuesday, December 9, 2003, Rules and Regulations, page 68699] Furthermore, the IDEA requires that all students with disabilities be included in State and district-wide assessment programs.

As measures of student growth become part of accountability systems, it is essential that such models include student performance on its AA-AAS. To leave students with disabilities being assessed by AA-AAS out of the growth component of the assessment and accountability program would be a violation of IDEA.

We appreciate your consideration of our comments and stand ready to assist the Department in the ESEA Flexibility process.


Association of Assistive Technology Act Programs
Bazelon Center for Mental Health Law
Council of Parent Attorneys and Advocates
Council for Learning Disabilities
Disability Rights Education & Defense Fund
Easter Seals
Epilepsy Foundation
Mental Health America
National Alliance on Mental Illness
National Association of Councils on Developmental Disabilities
National Association of School Psychologists
National Down Syndrome Congress
National Down Syndrome Society
National Parent Teacher Association
The Advocacy Institute
The National Center for Learning Disabilities
The National Council on Independent Living
The National Disability Rights Network
United Cerebral Palsy

The Consortium for Citizens with Disabilities is a coalition national consumer, advocacy, provider and professional organizations headquartered in Washington, D.C. Since 1973, the CCD has advocated on behalf of people of all ages with physical and mental disabilities and their families. CCD has worked to achieve federal legislation and regulations that assure that the 54 million children and adults with disabilities are fully integrated into the mainstream of society.