Every Student Succeeds Act

ESSA Committee Agrees on Special Education Testing Rules

By Christina A. Samuels — April 19, 2016 2 min read
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Cross-posted from Politics K-12

By Alyson Klein


After eight days of negotiations and countless proposals, a panel of educators, advocates, and officials from the U.S. Department of Education came to agreement on assessment regulations under the Every Student Succeeds Act—avoiding the need for the department to write its own rules on tests.

The toughest part of the assessment negotiation was on tests for students with severe cognitive disabilities. Under ESSA, states are only supposed to give those tests to 1 percent of their students overall, or about 10 percent of students in special education. Individual districts, however, can exceed that cap, and the law allows states can get a waiver from the department if they need to go over the 1 percent. (More background here.)

After hours of back-and-forth, the negotiators eventually rejected an attempt to define “severe cognitive disabilities.” Instead they agreed to require states to define the term on their own.

But the regulations set strong parameters for the definition states come up with, at the behest of civil rights advocates on the panel. For instance, states can’t identify a student as having a severe cognitive disability just because that student doesn’t do well in school, or only because that student is an English-language learner.

And states have to take into account both students’ adaptive behavior (how they handle being in school) and their cognitive abilities (their academic potential) in writing their definition.

There was also much back-and-forth on what conditions states must meet to get waivers from the 1 percent cap. Ultimately, the committee embraced much of the Education Department’s proposed language.

Under the agreement, states will have to explain how they eventually plan to comply with the cap. And they’ll have to show that they are testing 95 percent of their students—both overall and among students in special education—in order to get a waiver from the 1 percent requirement.

Some folks on the panel, especially Lynn Goss, a paraprofessional representing the National Education Association, weren’t fans of that provision. But all negotiators ultimately decided they could live with it.

“I can’t believe we got there,” said Ron Hager of the National Disability Rights Network, who was representing the disability community on the panel. He likes the parameters states must consider, even though he wishes that the panel could have set “an enforceable definition.”

Hager is disappointed that language was removed that would require states to make sure that poor and minority students aren’t disproportionately identified as having a severe cognitive disability.

Tony Evers, the state superintendent of Wisconsin, had previously said the requirements to get a waiver from the 1 percent testing mandate were even more onerous than the requirements to get a waiver from NCLB.

But he was satisfied with the compromise. States were never going to get full flexibility from the 1 percent cap, he said. After all, “it’s in the law,” he said.

A version of this news article first appeared in the On Special Education blog.