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Every Student Succeeds Act

Special Education Takes Center Stage at ESSA Negotiated Rulemaking Session

By Alyson Klein — April 07, 2016 4 min read
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Testing for students in special education got a lot air time—little of it resulting in real action yet—during Thursday morning’s discussion by a panel of negotiators trying to work out rules on assessments and funding issues under the Every Student Succeeds Act.

Quick refresher: ESSA allows states to use alternate tests for 1 percent of all students, typically those with the most-severe cognitive disabilities (that translates to about 10 percent of students in special education). States can apply for a waiver to go over that cap, and the U.S. Department of Education would need to approve it. Great background from Christina Samuels here.

The negotiated rulemaking panel, which is made up of educators, advocates, and experts, is trying to fill in two important blanks in that rule.

One, the negotiators are trying to figure out what exactly constitutes a “severe cognitive disability.” That term has so far gone undefined in the underlying law, the Elementary and Secondary Education Act. Some folks on the committee, including Tony Evers, the state superintendent in Wisconsin, say it’s worked well to have locals define the term, and they don’t necessarily need to make a change now.

Still, a subcommittee of negotiators attempted to reach agreement on a definition. And it couldn’t, although the members agreed on some high-level principles. The Education Department stepped in and proposed its own definition, which you can read below.

Some educators worried about aspects of the definition, including the fact that it doesn’t seem to have a real role for the individualized education program, or IEP, team. The panel tabled discussion on the proposal for the time being. (Tabling is a theme of ESSA neg reg—these issues obviously aren’t easy.) UPDATE: The panel returned to this issue later Thursday, but didn’t settle on a definition, or even agree that there should be one.

On another issue, the committee is still trying to hash out what has to happen when a state wants to exceed the 1 percent cap when it comes to alternate assessments for those students with severe cognitive disabilities. The department proposed an extensive list of requirements in draft regulations for states to get waivers in that instance.

Evers wanted to delete language proposed by the department that calls for states seeking such waivers to show data proving they did not assess a disproportionate number of students in a particular subgroup using alternate assessments for severe cognitive disabilities. In a nutshell, he doesn’t think it’s fair for states and districts to be penalized for past conduct.

Alvin Willbanks, the superintendent of Gwinnett County Schools in Georgia, co-signed that point, saying he thought adding the language would amount to overreach by the feds.

But Liz King, of the Leadership Conference on Civil and Human Rights, said she worried about districts with systemic problems with certain populations of students. And Aaron Payment, of the Sault Ste. Marie tribe in Michigan, said data on ongoing practices can help advocates make their case.

And Audrey Jackson, a public school teacher from Boston, was curious about what happens when a state exceeds the cap. Her own home state of Massachusetts administered alternate assessments to about 1.6 percent of its students in recent years, she said.

“It’s not going to go down overnight,” she added.

Patrick Rooney, the deputy director of the education department’s office of state support, told the group the department could consider the state out-of-compliance. That could carry a risk of loss of funding.

High School Tests

The committee also failed to reach agreement on another key issue, how to define “nationally recognized test.”

Quick refresher: ESSA allows districts to offer a “nationally recognized high school test” in lieu of the state exam. But the law doesn’t specify exactly what constitutes a nationally recognized test. (Language accompanying the new law makes it clear that ACT and SAT should be in the mix, though.)

The department proposed defining it as any test used for college entrance (i.e. the SAT or ACT) or any test that’s been designed for the purpose of college placement. That would seem to allow PARCC and Smarter Balanced tests, which are federally-funded exams aligned to the Common Core State Standards, on the menu.

States would also have to ensure appropriate accommodations for students in special education and English-language learners, something states using the ACT and SAT for accountability have struggled with. (Negotiators really stressed this issue during discussions late last month.) And others on the panel worried that the definition might allow states to use tests not aligned to state standards.

Delia Pompa of the Migration Policy Institute said she would take a stab at revamping the definition, with other folks on the committee, trying to move beyond the emphasis on college entrance exams—while preserving the need for rigor. The focus of the requirement, she said, should be on high school instruction.