With passage of bills to reauthorize the ESEA in both the U.S. Senate and the House of Representatives (details here) the likelihood of getting an update to current law – known as No Child Left Behind (NCLB) – seems probable for the first time since NCLB “expired” in 2007. While few supporters stand behind all the original tenets of NCLB, some of its requirements helped improve education for students with disabilities.

However, few states are still operating under NCLB rules, most having obtained ESEA Flexibility from the U.S. Dept. of Education starting back in 2012. The new accountability plans states were allowed to develop under their ESEA Flexibility (to replace Adequate Yearly Progress or AYP) raised many questions about just how students with disabilities would be impacted,  as we laid out in our 2013 report, ESEA Flexibility: Issues for Students with Disabilities.

Now Congress is moving toward a new ESEA that will completely eliminate many of the provisions of current law (maintained in ESEA Flexibility) that have worked to gain needed attention to the specialized services and supports necessary for students with disabilities to benefit. A few are recapped below.

INTERVENING IN LOW PERFORMING SCHOOLS. The overarching issue – for all historically under-performing groups of students including students with disabilities – is the lack of any requirement for states to take action in poor performing Title 1 schools in either the Senate or House ESEA bills. This concern has been best articulated by the Leadership Conference & 41 organizations in their letter to Senate HELP Committee leadership. The Education Trust also stands firmly opposed to this abandonment of accountability and encourages action via its All Kids Matter campaign. Intervention should be required in low performing schools and schools with significant gaps in the performance of student groups/categories.

MAKING STUDENT GROUPS COUNT. A major driver in the identification of low performing schools is the issue of “n” size. Schools and districts are held accountable only for the student groups that meet or exceed this minimum number of students.

For example, if a state established an “n” of 35, a school with only 20 students with disabilities in the tested grades would not be held accountable for this group of students. Under current law and both the Senate and House bills, states will continue to determine the minimum number of students necessary to hold schools and districts accountable for the performance of each student group (called “categories” in the Senate bill) directed only by a requirement for it to be statistically significant and not disclose personally identifiable information. This latitude in determining “n” size resulted in significant numbers of students with disabilities being left out of accountability systems. A 2013 report, The Inclusion of Students with Disabilities in School Accountability Systems, found that as many as 85% of students with disabilities in one state (AZ) were excluded from accountability systems due to “n” size.

One glimmer of hope in getting states to be more responsible in setting “n” size is contained in the Senate bill (Title I, Sec. 1016). It requires the U.S. Dept. of Education to publish a report on “best practices for determining valid, reliable, and statistically significant minimum numbers of students for each of the categories of students for the purposes of inclusion as categories of students in an accountability system.” (The National Center for Education Statistics recommends an ‘n’ size of 10) Presumably states would look to this report to determine “n” sizes going forward. However, there is nothing binding about this and furthermore, it is not specified in either bill that the “n” size must be the same for all student groups/categories (as is the case in current law).

MAKING TEST PARTICIPATION MATTER. Three important issues here:

(1) While both the Senate and House bills include a requirement that schools and districts test a minimum of 95% of all students and a minimum of 95% of each student group/categories, neither bill puts the same emphasis on this requirement as does current law (failing to reach the 95% testing threshold was automatic failure of the school regardless of academic achievement). The veracity of this provision was also relaxed in some of the accountability plans approved under the ESEA Flexibility program (discussed in our report, ESEA Flexibility: Issues for Students with Disabilities).  Simply maintaining the requirement while not assigning any weight to it within the accountability system is likely to result in diminished attention to ensuring the testing of all students. (More about this from our friends over at Third Way.)

(2) Another threat to this provision is found in the House bill which provides that students who are “opted out” of testing – in states that allow such parental action – will not be counted against the school or district for purposes of the participation rate requirement. (More on state opt-out policies here.)

(3) While neither Senate nor House bills speak specifically to this, current NCLB regulations require that students with disabilities are assessed on the assessment for their enrolled grade level. This requirement helped to eliminate the practice of “out-of-level testing” (OOLT) of students with disabilities and resulted in schools and parents getting information on how students with disabilities perform vs. their same age/grade non-disabled peers. It will be important to maintain the prohibition on OOLT in any ESEA re-write.

ALTERNATE ASSESSMENTS. About the only issue that is specific only to students with disabilities is that of participation in alternate assessments. Both bills allow states to develop and administer alternate assessment on alternate academic achievement standards (AA-AAS) for students with the most significant cognitive disabilities. However, the bills vary significantly:

  • Limitation. Senate bill limits the number of students with disabilities who can be assessed using an AA-AAS to one percent of all students assessed – which equates to roughly 9%-10% of students with disabilities. This provision is similar to a NCLB federal regulation and is designed to ensure that students with disabilities are not inappropriately assigned to an alternate assessment. The House bill contains no such limitation and would open the door for abuse of alternate assessment.
  • Prohibition. The Senate bill also contains a prohibition on any state developing any other alternate assessment for students with disabilities. Maintaining this provision in any ESEA re-write is critical to ensuring that students with disabilities – other than those with the most significant cognitive disabilities – participate in states’ general assessment at their enrolled grade.

GRADUATION. Attention to the graduation rate of all students, including students with disabilities, was significantly enhanced via the promulgation of federal ESEA regulations in 2008. The new regulations ensured that graduation received enhanced focus, particularly in those high schools failing to graduate at least 60% of students in four years (called drop-out factories) by disaggregating graduation rates by student subgroups, setting annual graduation rate targets and linking those targets to Adequate Yearly Progress (AYP). Most of these advancements are lost in both the Senate and House ESEA bills. While both bills maintain the requirement to report graduation rates using the 4 Year Adjusted Cohort Graduation Rate (ACGR) for all students and student subgroups, neither incorporates serious consequences for failing to achieve annual targets or make significant improvements. More from AEE.

BOTTOM LINE: In their current form, neither the Senate nor House bill to reauthorize ESEA is good enough for students with disabilities. With these as starting points for conference, we can anticipate only an unacceptable produce to emerge.