A Misunderstood Policy with the Potential to Harm Millions of Kids

By Laura Kaloi
Director of Public Policy, NCLD 

There is a debate raging in Washington, DC that most people are unaware of, let alone understand; however, NCLD is one the most ardent voices. This debate isn't covered by the media in any depth (because it is so technical) and it certainly isn't discussed at the local PTA meetings where any of us live, but I believe the result of this debate will have a larger impact on students with learning disabilities than most people understand.

The crux of the issue rests on whether to commit to law (in the new No Child Left Behind bill) a new experimental regulation that allows states to develop alternate reading and math tests (assessments) for certain students receiving special education. The technical term for the new policy is: 'alternate assessments on modified academic achievement standards' or the 2 Percent Policy. This policy focuses on the students who score well below proficient on state tests and who may also be performing well below grade level in reading, math, or both. Since April 2007, states have been allowed to develop these new assessments. Prior to April, states were required to give the majority of students their regular assessment with or without accommodations as appropriate. The current law allows states to give up to 10 percent of students with the most 'severe cognitive disabilities' an 'alternate test based on alternate academic achievement standards.' These students are not students with learning disabilities.

NCLD has been publicly against the regulation since it was first announced in 2005 for three critical reasons:

1. The policy was written in such a way that it looks like just a small number of students nationally (2 Percent) will be affected, so why the fuss? Well, as they say, the devil is in the details, and with this it’s true. The 2 Percent for 'all students assessed' actually focuses on students with IEPs. This means the 2 Percent of students performing below proficiency impacts more than 20 percent of students with disabilities (that's nearly 2 million students). It’s no wonder that everyone from the media to policymakers and their staff don't seem to 'get' this in the debate. To make this even more complicated, the House of Representatives has added a waiver in its current draft legislation that allows schools to increase the number of students’ scores that can be counted in the modified assessment from 20 percent to 30 percent of students with disabilities (up to almost half of the students with disabilities);
2. The studies that were originally used by the U.S. Department of Education in 2005 to justify the 20 percent number were flawed. In fact, in one of the major studies cited to justify the new policy, only 11 percent of the students were special education students and the additional studies cited did not include any special education students. It’s documented before Congress and on record with the Department of Education that the studies used for the 2 Percent Policy do not adequately include the numbers of students needed to justify the decision.
3. States that develop this 'modified' assessment will likely develop 'modified curriculum' to go with it and will limit the intensity of their instruction and interventions to accelerate learning for students working below grade level. Our gravest worry is that students with learning disabilities, who may need some extra time to work on grade level and benefit from intensive, research-based instruction and support services, will be assigned to the new assessment and over time, will effectively be taken off track from receiving a regular high school diploma.

In essence, the new regulation provides states the opportunity to test certain students receiving special education differently than their peers -- a tempting offer for states looking to find ways to avoid teaching and testing all children equally.

So, we believe it is too soon for Congress to place this new and unsubstantiated policy into statutory law. We are urging Congress to give states the choice to determine whether to move forward with new assessments. We think it's expedient to watch, to learn, to evaluate and then make an informed decision about whether the policy should be fully implemented and embraced as part of federal education law.

Smart Planning
Some states, like Colorado, have taken the time and initiative to research if this policy would be helpful to their students and schools. At the request of the Colorado State Legislature, they put a team of experts together to study this new assessment option. But Colorado looked at their reading and math data (grades 3-10) and here's what they found:

1. Not all of the students performing in the lowest one-third on the state tests were students receiving special education, making the focus of a modified assessment on students with IEPs irrelevant;
2. Accommodations were not consistently provided to all eligible students;
3. When the lowest performing student scores were matched from one year to the next they saw ‘substantial longitudinal growth’ toward grade level achievement for the majority of the students over time;
4. The students making the gains toward grade level achievement were those attending schools that provided 'intensive, targeted, research-based instruction;'
5. The state should implement sound 'data-driven recommendations that focus on student learning and on valid measurement of that learning.'
   
   Source: Assessing "Students in the Gap" in Colorado, Report from the HB 05-1246 Study Committee, December 31, 2005.

Colorado's findings and decision to not develop the new 'modified' test support the findings we report in our NCLB Report Card and companion accommodations study that highlight two diverse school districts striving to improve outcomes for students with disabilities. It's our hope that more states will follow the lead of Colorado and other states that are examining their state test data. They are seeking to understand who the lowest performing students are and what state policies and practices may in fact be barriers to student success before they agree to develop a 'modified' path for any of our students.

Next Steps
We have been actively engaged with Congress to fight for including the 2 Percent Regulation in the new law. We hope to engage you in helping us influence the legislative process on this important issue.  With just two clicks, you can tell Congress how preposterous this policy is and how detrimental it will be for millions of students with learning disabilities.

Additional Public Policy Resources on NCLD.org:

NCLD's LD Advocacy Center
Highlights the latest information and essential tools you need to be an effective LD Advocate.

NCLD's Legislative Updates
Find out what's happening on Capitol Hill and how it effects your child's education.

NCLD's Legislative Action E-list
Join NCLD's Legislative Action E-list to be kept up to date on important legislative issues in Washington.