Maryland Advocate Speaks Out on Burden of Proof

March 20th, 2013

Lift a Burden from Special Ed Parents

The welcome lifting of the federal consent decree on Baltimore City Public Schools does not mean that all is well for students with disabilities in Baltimore and Maryland — far from it. Yet the General Assembly rarely pays any attention to the fact that special education isn’t nearly special enough. Hopefully that will change. Pending legislation gives lawmakers a chance to at least take a small step to improve the education of students with disabilities.

As things now stand, students across the range of disabilities – from intellectual limitations to language impairments to dyslexia – are denied the opportunity to meet academic standards because they are not provided services to which they are entitled under federal and state laws. There are many complex reasons for this.

Money is one of them. Under the federal Individual with Disabilities Education Act (IDEA), services are supposed to provide the “specially designed instruction” that meets the needs of students with disabilities. But in practice, the services of dedicated educators are almost always limited by school budgets.

At the same time, money plays another more pernicious and ultimately more decisive role in the shortcomings of special education: most parents lack the means to assert their rights under IDEA and Maryland law and to challenge the system’s failures. This parental powerlessness is obscured by media stories highlighting lawyers representing well-to-do parents who seek expensive private school placements at public expense, usually for students with the most severe disabilities.

But such challenges are a tiny fraction of instances in which parents are dissatisfied and frustrated. Students with disabilities in Maryland and nationwide come from significantly poorer families than the general student population, and lack the wherewithal to confront the superior resources of the school district. This includes their inability to pursue “due process” administrative appeal hearings if they disagree with the school system.

Such parental powerlessness is the backdrop to bills pending in the General Assembly that would place the burden of proof in administrative hearings on school systems rather than on parents. The bills stem from the divided U.S. Supreme Court opinion in 2005, Schaffer v. Weast. The court held that under federal law, the burden rested on the parent, but the ruling made clear that states were individually free to impose the burden on school systems, and numerous states do.

Maryland, to its discredit, is not one of them, perhaps because the Schaffer case involved the Montgomery County school system. But that is no excuse. Rather the General Assembly has not acted because of the muscular opposition of local school systems who want to preserve their substantial advantage in administrative hearings.

The Supreme Court decision siding with school districts was partially grounded in Justice John Paul Stevens’ concurring opinion that “we should presume that public school officials are properly performing their difficult responsibilities” under special education laws. But this presumption is totally out of touch with the realities of special education, and it ignores the imbalance in power between parents and schools.

Justice Ruth Bader Ginsburg in dissent pointed out that school districts are resistant to challenge, and command huge advantages: “the school has better access to relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child’s education), and greater overall education expertise than the parents.” Further, the costs of administrative appeals – lawyers and expert witnesses – are trivial to school system budgets, while beyond the purse of the overwhelming majority of parents. And pro bono lawyers for parents in appeal cases are almost never available.

The burden of proof – to present sufficient evidence and to convince the administrative judge of the validity of the appeal – sounds like a minor legalistic matter. But it has the power to tip the scales of justice one way or the other. Often the evidence relies on subjective judgments, and administrative judges are already predisposed to defer to the supposed knowledge and experience of educators.

But as Justice Ginsburg noted, “school districts striving to balance their budgets…will favor educational options that enable them to conserve resources.” In other words, in violation of their legal responsibilities, schools will balance their budgets in part on the backs of vulnerable students with disabilities.

The burden-of-proof legislation in the General Assembly is only a small reform. But it will help to balance the scales of justice in administrative hearings, and will send a larger message that school districts must do more to bear the overall burden of improving special education. At the least, the legislation will take one burden off the backs of parents and students with disabilities.

This opinion piece appeared in the Baltimore Sun, March 4, 2013. The writer is Kalman R. Hettleman. He can be reached at  khettleman@gmail.com

Submit comments to PARCC’s Writing Access Accommodations Policy – Here’s how…

February 19th, 2013

PARCC – the 22-state consortium working together to develop next-generation K-12 assessments in English and math – has released draft policies regarding writing accommodations policies for your comments until February 20, 2013.

States in the PARCC consortium are: Arizona, Colorado, District of Columbia, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, and Tennessee.

To submit your comments go to the survey form.

The Collaboration to Promote Self-Determination suggests the following comments.

****Click on NO for all questions re supporting the PARCC policies****

Writing Access Accommodation Policy: Scribe

6. I support the draft scribe accommodation policy for students with physical disabilities that impede the motor process of writing.

  • Yes
  • Yes, with edits
  •  No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft policy applies only to those students who are found eligible under the Individuals with Disabilities Education Act (IDEA). However, under the ESEA students covered by both IDEA and Section 504 of the Rehabilitation Act of 1973 must be provided with appropriate accommodations.

Terms such as “students with a physical disability” should not be used as doing so risks making determination of need for accommodations contingent upon the disability categories used to determine eligibility for IDEA.  PARCC states that the use of a scribe will not invalidate constructs measured on the PARCC ELA/literacy assessments. The accommodation shouldn’t be limited to ELA/literacy assessments because it is unlikely to invalidate constructs measured on the math assessment either.

The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason

Placing similar eligibility limitations on the Section 504 team would also likely be considered a violation of the Rehabilitation Act of 1973. Students who do not meet the PARCC scribe criteria may still need the accommodation in order to demonstrate the full extent of their knowledge through written expression.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature.  We encourage PARCC to work with the disability and assistive technology experts to revise this policy.

Writing Access Accommodation Policy: Scribe

7. I support the draft scribe accommodation policy for students with disabilities that significantly impact the area of written expression.

  • Yes
  • Yes, with edits
  •  No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft policy applies only to those students who are found eligible under the Individuals with Disabilities Education Act (IDEA). However, under the ESEA students covered by both IDEA and Section 504 of the Rehabilitation Act of 1973 must be provided with appropriate accommodations.

Terms such as “disabilities that significantly impact the area of written expression” should not be used as doing so risks making determination of need for accommodations contingent upon the degree of disability, as opposed to whether the accommodation would allow a student to demonstrate their knowledge more fully. PARCC states that the use of a scribe will not invalidate constructs measured on the PARCC ELA/literacy assessments. The accommodation shouldn’t be limited to ELA/literacy assessments because it is unlikely to invalidate constructs measured on the math assessment either.

The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason

Providing specific “conditions” related to instructional interventions or IEP goals that must be met in order for a student to be provided the needed accommodation would violate the student’s rights under Section 504 of the Rehabilitation Act of 1973. A student with a disability who is eligible under IDEA and/or Section 504 cannot have his/her right to participate meaningfully in an assessment provided to all other students conditioned upon actions of the student’s IEP Teams and/or Section 504 Team. Failure to ensure that such a student has an opportunity to demonstrate his/her knowledge and skills of the Common Core Standards as all other students would deprive the student of comparable benefits and services under 34 C.F.R. §104.4. While the particular items addressed in these conditions are certainly desirable, a student’s rights cannot be limited by their existence, particularly when the student has no control of these.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature.  We encourage PARCC to work with the disability and assistive technology  experts to revise this policy.

Writing Access Accommodation Policy: Scribe

8. The proposed scribe accommodation policy is consistent with the policy my state currently offers.

  • Yes
  • No
  • Unsure

    Other:  N/A for National coalition

Writing Access Accommodation Policy: Word Prediction

9. I support the draft word prediction accommodation for students with disabilities who have difficulty producing text due to the speed with which they are able to enter keystrokes.

  • Yes
  • Yes, with edits
  • No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft word prediction policy is overly restrictive. Accommodations must be made available to both IDEA and Section 504 eligible students. A term such as “student with a specific disability” should not be used as doing so risks making determination of need for accommodations contingent upon the disability categories used to determine eligibility for IDEA.  The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason. Placing similar eligibility limitations on the Section 504 team would also likely be considered a violation of the Rehabilitation Act of 1973.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature. Since the PARCC assessment is in an online form, the motor skills required for written expression have already been changed from “handwriting” to “keyboarding.”  Assuming there would be very few if any test items that were intended to solely measure keyboarding speed/skill, there should be no restriction on students using any kind of alternative computer input device to support keyboarding efficiency.

We encourage PARCC to work with the disability and assistive technology experts to revise this policy.  Word prediction interventions are now a common feature within most computer-based systems, software applications, as well as routinely found in search technologies, text messaging, etc. Given its common “real world” usage, it should be considered as a widely allowable if not universal accommodation on assessments.

Word prediction software varies considerably. Students who have access to robust programs such as Co-Writer by Don Johnston for use in their class work and teacher-made tests would need to be provided with the same software for use in assessments. Providing Word Prediction software with which the student is not familiar would actually hinder the student’s performance, lead to frustration and diminished equity.

Writing Access Accommodation Policy: Word Prediction

10. I support the draft word prediction accommodation policy for students with disabilities that impede language processing and/or recall.

  • Yes
  • Yes, with edits
  • No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft word prediction policy is overly restrictive. Accommodations must be made available to both IDEA and Section 504 eligible students. A term such as “student with a significant disability” should not be used, as doing so risks making determination of need for accommodations contingent upon the disability categories used to determine eligibility for IDEA.  The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason. Placing similar eligibility limitations on the Section 504 team would also likely be considered a violation of the Rehabilitation Act of 1973.

Providing specific “conditions” related to instructional interventions or IEP goals that must be met in order for a student to be provided the needed accommodation would violate the student’s rights under Section 504 of the Rehabilitation Act of 1973. A student with a disability who is eligible under IDEA and/or Section 504 cannot have his/her right to participate meaningfully in an assessment provided to all other students conditioned upon actions of the student’s IEP Teams and/or Section 504 Team. Failure to ensure that such a student has an opportunity to demonstrate his/her knowledge and skills of the Common Core Standards as all other students would deprive the student of comparable benefits and services under 34 C.F.R. §104.4. While the particular items addressed in these conditions are certainly desirable, a student’s rights cannot be limited by their existence, particularly when the student has no control of these.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature. Since the PARCC assessment is in an online form, the motor skills required for written expression have already been changed from “handwriting” to “keyboarding.”  Assuming there would be very few if any test items that were intended to solely measure keyboarding speed/skill, there should be no restriction on students using any kind of alternative computer input device to support keyboarding efficiency.

We encourage PARCC to work with the disability and assistive technology experts to revise this policy.  Word prediction interventions are now a common feature within most computer-based systems, software applications, as well as routinely found in search technologies, text messaging, etc. Given its common “real world” usage, it should be considered as a widely allowable if not universal accommodation on assessments.

Word prediction software varies considerably. Students who have access to robust programs such as Co-Writer by Don Johnston for use in their class work and teacher-made tests would need to be provided with the same software for use in assessments. Providing Word Prediction software with which the student is not familiar would actually hinder the student’s performance, lead to frustration and diminished equity.

Writing Access Accommodation Policy: Word Prediction

11. The proposed word prediction accommodation policy is consistent with the policy my state currently offers.

  • Yes
  • No
  • Unsure There is no choice for “other” as there usually is for the question about state policy so just put “unsure

Final Comments
Please use this space to provide any other comments not addressed in previous questions.

The PARCC Accommodations Manual should be developed so as to have applicability for both through-course and summative assessments. Students must be assured of the consistent availability and application of accommodations on all aspects of assessments designed to measure College and Career Readiness.

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 http://www2.ed.gov/documents/press-releases/state-2010-11-graduation-rate-data.pdf) 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

PARCC NEEDS TO HEAR FROM YOU!

January 29th, 2013

PARCC NEEDS TO HEAR FROM YOU!

Submit comments on PARCC’s
Draft Policies on Reading Access Accommodations &
Calculator Accommodations for Students with Disabilities

BY FEBRUARY 4, 2013

BACKGROUND

  • PARCC states educate 3 million students with disabilities-over half of all students with disabilities in the nation.
  • PARCC states are: Arizona, Arkansas, Colorado, District of Columbia, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, and Tennessee.
  • PARCC assessments will be implemented beginning in the 2014-2015 school year.
  • PARCC must develop a common set of policies and procedures for states to use in providing accommodations to students with disabilities.
  • PARCC invites public comment on two draft policies that will be part of a larger Accommodations Manual to be released later this year. These policies pertain to the reading access accommodation and the calculator use accommodation.Comments must be submitted by February 4, 2013.

Get full text of draft policies and link to survey form for comment submission here. Use this sample survey to assist in submitting your comments!

Here are some suggested talking points to use when submitting comments:

In general:

  • The draft policies are premature since the assessments themselves are still in development.
  • The draft policies don’t reflect the possibilities of computer-based, technology-enhanced, universally designed assessments envisioned by the U.S. Dept. of Education and promised by PARCC.
  • The draft policies only apply to summative assessments (tests given at the end of instruction) and not to tests given through the year (sometimes called formative assessments), yet students need consistent access to accommodations on all assessments.
  • The draft policies are overly restrictive and overly prescriptive, imposing narrow definitions of students who would be in need of these accommodations then further restricting access by requiring certain conditions to be met in order to receive the accommodation.
  • The specific “conditions” that students must meet in order to be provided the accommodation would violate the student’s rights under Section 504 of the Rehabilitation Act of 1973. A student with a disability who is eligible under IDEA and/or Section 504 cannot have his/her right to participate meaningfully in an assessment provided to all other students conditioned upon actions of the student’s IEP Team.

Reading Access Accommodations (commonly known as text to speech or read-aloud):

  • The draft policy demands overly restrictive level of reading in order to access, student must be a “virtual non-reader,”(i.e., at the beginning stages of learning to decode) or blind/visually impaired and unable to read braille.

Calculator Accommodations:

  • The draft policy demands overly restrictive level of math in order to access, student must be “unable to calculate single-digit numbers (i.e., 0-9) without a calculation device, using the four basic operations of addition, subtraction, multiplication, and division.

Provide feedback through a survey posted on the PARCC website, answering questions specific to each policy – Reading Access Accommodations and Calculator Accommodations.

Use this sample survey to assist in submitting your comments!

COMMENTS SUBMITTED TO PARCC:

Collaboration to Promote Self-Determination

Consortium for Citizens with Disabilities

National Center for Learning Disabilities

CAST

Center for Law and Education

 

 

 

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.

Yes, Virginia, you are a swing state!

July 31st, 2012

Click here to play suggested background music.

The “sleight of hand” process used by the Duncan Dept. of Education (ED) in reviewing requests for ESEA waivers continued with the approval of a waiver for the Commonwealth of Virginia on June 29, 2012. After providing limited information regarding exactly how the state would set new annual measurable objectives (aka proficiency rates in reading and math)  in its initial request, ED told Virginia to pony up more specifics if it wanted an OK. (See ED Letter Regarding Peer Review Feedback).  Specifically, the feds told the state it had significant concerns with respect to  Virginia’s lack of ambitious but achievable annual measureable objectives (AMO) that provide a meaningful incentive for schools to improve (page 2).

In response, Virginia cooked up a methodology for calculating new AMOs that it claims is based on current ESEA law, but different (huh?). It did not, however, provide a simulation of those AMOs – a picture of exactly how the methodology would play out – in its response to ED (and ED didn’t ask), leaving us waiver watchers to proclaim “Huh?” again. But not to worry. ED bought the proposal and gave Virginia’s plan its blessing. (See approval letter)

With waiver in hand, Virginia set out to calculate its new AMOs for the next 6 years, proudly announcing them to the state on July 24, 2012. (See VDOE announcement). Virginia can’t yet determine new AMOs for reading – since they’ll be based on the new reading assessments being administered this coming school year. That said, the new AMOs for math (below) paint a dismal picture for Virginia’s underachieving students – now assigned the pejorative moniker “Proficiency Gap Groups.”

Virginia Annual Measureable Objectives Math(Click here to enlarge) (Note: Proficiency Gap Group 1 combines students with disabilities, ELL students, and economically disadvantaged students, with no student counting more than once even if the student belongs to more than one group)

For students with disabilities, expected proficiency rates rise from 33% to 49% and close the gap between themselves and all students by just 4 points over 6 years. If Virginia had selected another approach offered in the waivers, say, to “reduce by half the percentage of students in the all student group and in each subgroup who are not proficient within six years,” 67% of students with disabilities would be expected to be proficient in math in 2016-2017 instead of 49%. Now that’s a GAP.

Since Virginia didn’t provide these AMOs in its final waiver request, perhaps ED failed to get the full picture of just how the proposed methodology would play out. Or, maybe, they just chose to look the other way.

Yes, Virginia, you are a swing state.

 

 

 

 

Click here for Virginia AMO Fact Sheet

Click here for the Protest Virginia AMOs FACEBOOK page

Click here for statement of the Virginia State Conference NAACP

Click here for Roanoke Times article on new Virginia AMOs

Click here for Editorial in Newport News Daily Press

Click here for August 16th Eduwonk Blog by Andy Rotherham

Click here for Wrightslaw blog

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 http://www.ed.gov/esea/flexibility)

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*

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*

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*

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*

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

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

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

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*

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
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.)