Published Online: December 14, 2005

Education Dept. Proposes Rule on ‘2 Percent’ Flexibility for Testing Students With Disabilities

The U.S. Department of Education has released a proposed regulation for testing students with disabilities that would give states and schools greater flexibility in meeting the requirements of the federal No Child Left Behind Act.

Secretary of Education Margaret Spellings said the move is part of a “more sophisticated” approach to meeting the needs of such students.

Ms. Spellings, who announced the proposed rule on Dec. 14 at an elementary school in this Washington suburb, said the flexibility is intended for 2 percent of all students nationwide—about 20 percent of students with disabilities—who are able to meet grade-level standards, but not at the same speed as their peers. The No Child Left Behind law requires students in grades 3-8, and once in high school, to be tested yearly in reading and mathematics and requires the public release of test scores for various subgroups, including students with disabilities.

Secretary Spellings had announced the 2 percent flexibility measure last spring, and states were given an opportunity to use interim measures to adjust their test scores for the 2004-05 school year. The result, for some states, is that more schools made adequate yearly progress, or AYP—a key standard of performance under the 4-year-old law—because their passing rates for the students-with-disabilities subgroup improved. The Education Department plans to extend the interim policy for the 2005-06 school year to allow public comment on the proposed regulation, which was scheduled to be published in the Federal Register on Dec. 15. It would take at least several months for the proposed rule to become final.

“At its heart, this policy is all about improving the way we educate and assess children with disabilities. It’s a smarter, more sophisticated way of serving their needs,” Ms. Spellings told the group of local and state education officials gathered at Guilford Elementary School, which has 412 students, 9 percent of whom have disabilities.

An earlier Education Department flexibility policy, which is intended for 1 percent of all students, remains in place. It is intended to provide flexibility to schools for students who have severe cognitive disabilities. The new proposed rule is for students who can achieve at higher levels than the students in that 1 percent group, which accounts for about 10 percent of students with disabilities.

NCLB’s ‘Bright Lines’

The proposed flexibility would require states to develop new tests for students who fall within the 2 percent group. States must also develop clear guidelines that individualized-education-program teams at schools can follow to determine which students with disabilities are eligible for those new modified assessments. Proficient scores from the modified assessments could be counted toward determining AYP. The use of modified assessments could not preclude a student from earning a regular high school diploma.

However, under the proposed regulation, the modified assessments would have to be aligned with grade-level curricula, so a 6th grade student could not take a test intended for a 3rd grader, for example. Also, the students assessed under the modified achievement standards would have to be receiving grade-level instruction in the relevant subjects.

“We’re open to new ideas, just so long as we all stick to what I call the bright lines of the law—annually assessing students, disaggregating data, and closing the achievement gap by 2014,” Secretary Spellings said.

Before her announcement, Ms. Spellings spent some time visiting two classrooms at Guilford Elementary, which has all of its special education students included in general education classrooms, said Principal Genee Varlack.

Guilford Elementary, part of the 47,800-student Howard County, Md., school district, raised the proportion of its 3rd graders with disabilities who are proficient in reading by 50 percentage points in two years, from 12.5 percent to 62.5 percent proficient on Maryland state tests. That was before any testing-flexibility policy was in place, but Ms. Varlack said such a policy would still be good for her school because some students could be covered by the proposed regulation.

“It still will help, because you have disabled, and then you have profoundly disabled” students, Ms. Varlack said.

Nancy Reder, the deputy executive director of the Alexandria, Va.-based National Association of State Directors of Special Education, attended the secretary’s announcement. Though she declined to comment on the specific proposal, she said that her organization has, for some time, suggested that about 3 percent of students need some type of modification to No Child Left Behind testing rules.

With the new proposed rules, “it sounds like there’s some flexibility there, and that’s a good thing,” Ms. Reder said.

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