Students With Disabilities Get Testing Protections Under Draft ESSA Regulations

By Catherine Gewertz — April 15, 2016 3 min read
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Cross-posted from High School & Beyond.

Students who receive testing accommodations could get new protections when they take state-required college admissions exams, under proposed draft regulations for the Every Student Succeeds Act.

Draft regulations released earlier this month by the U.S. Department of Education acknowledge a growing problem as states increasingly embrace the SAT or ACT as their official high school test, and require it of all students. If finalized, the rules would require states to show that students are being treated equally when their states require them to take the SAT or ACT.

As EdWeek reported in February, the College Board and ACT have denied many students the testing accommodations they’re used to, putting students with disabilities in a tough spot when their states require them to take those exams. In some states, students must choose: take the test without their normal supports and risk a compromised score, or insist on their normal accommodations and give up the chance to use the score for college admissions, as their fellow students can do.

That accommodations disparity caught the eye of the U.S. Department of Justice, which had begun collecting information on the accommodations practices of ACT and the College Board (and other testmakers).

Testing Accommodations Under the Every Student Succeeds Act

Enter ESSA, the latest incarnation of the Elementary and Secondary Education Act. One of its new provisions, as EdWeek highlighted last fall, allows states and districts to use a “nationally recognized high school assessment” for accountability instead of its statewide test. Lots of questions began to float about what that would mean, but one question, in particular, focused on how well tests like the SAT and ACT can measure mastery of a state’s academic standards. That’s not, after all, what college-entrance exams were designed to do.

The latest turn of events came out of the negotiated rulemaking process for ESSA. As our Politics K-12 blog explains, that’s a process that puts appointed panelists in a room, gives them some guidance, and asks them to come up with draft regulations on certain portions of the new law. If they can’t, which is the most typical outcome, the Education Department drafts regulations itself. One of the issues that negotiated rulemaking—known among insiders as “neg reg"—tried to tackle was a set of assessment provisions in ESSA. That “nationally recognized high school assessment” provision is one of them.

After a couple of rounds of meetings, the Education Department drafted some regulatory language based on what the negotiators had discussed so far. These aren’t set in stone; They’re guidance for further discussion, and must still appear in the Federal Register for comment. But it’s notable that language about the accommodations disparities now appears in those draft regulations. It’s a sign that federal officials are watching that situation.

Draft Regulations for High School Testing Under ESSA

Here’s a link to all 25 pages of proposed regulations on assessment, dealing with questions about 8th grade math testing, testing for students with disabilities and English-learners, and other issues. If all you want is the section about the “nationally recognized high school assessment,” that’s been excerpted in this five-page section.

So here are the notable draft-regulation tidbits about that new provision of ESSA that allows a “nationally recognized high school assessment,” with some semi-flippant EdWeek air quotes to help with translation.

Before allowing a district to use such a test, states must "ensure that the use of appropriate accommodations ... does not deny any student the opportunity to participate in the assessment or afford any benefit from such participation that is not equal to the benefit afforded to students who do not use such accommodations." EdWeek air quotes: You can't put students in a situation where some come out with a college-reportable score and some don't. What's the definition of a "nationally recognized high school assessment?" It's "an assessment of student knowledge and skills of high school students that is administered in multiple states and used by institutions of higher education in those states for the purposes of entrance into postsecondary education or training programs or courses of study or for placement into courses in postsecondary education or training programs or courses of study." EdWeek air quotes: Yes, this probably includes PARCC and Smarter Balanced, since they're given in multiple states and used—at least in some states—to place students into college courses. Could this mean that districts could use PARCC or Smarter Balanced in high school instead of the test their state picked? An interesting question, though maybe not too likely to move from the abstract to the real world, since states are dropping consortium tests most often at the high school level.

A few other notable tidbits from the draft regulatory language on testing:

It specifies that assessments can be "partially delivered in the form of portfolios, projects, or extended performance tasks." EdWeek air quotes: We're trying to help wave bye-bye to the days of multiple-choice-only testing. It still features the original ESSA provision that lets states use multiple interim tests rolled into one summative result, an option that raises a number of measurement questions. EdWeek air quotes: Sure, go ahead and experiment with this stuff, even while we're figuring out whether it's technically sound. It says that states must measure a student's achievement for the grade level in which he or she is enrolled, but that they may also measure achievement above or below the student's grade level. This has drawn some grimaces from wonks who write about what's good for gifted students. EdWeek air quote: We really do need to know about that grade-level part.

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