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.


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


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.