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Special Ed. Advocates to DeVos: Don't Let New York Get Out of ESSA's Testing Rules

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Special education advocates have a message for U.S. Secretary of Education Betsy DeVos: Don't let New York wiggle out of the Every Student Succeeds Act's testing requirements for students with significant cognitive disabilities.

The Empire State, which submitted its ESSA plan in September, wants to be allowed to give students with significant cognitive disabilities a test that matches their instructional level, not their age.

Mary-Ellen Elia, the state commissioner of education said earlier this year the waiver will help students in special education demonstrate what they know. "It's a major difficulty for them in their perception of how they're doing in school or how well they're doing in school and what they really know, based on their abilities," Elia said. She also said the waiver would essentially enable New York to adapt its tests to students' ability levels the same way other states that are using computer adaptive assessments already can. 

But the Consortium for Citizens with Disabilities Task Force, which includes more than a dozen advocacy organizations, including the National Center for Learning Disabilities and the Council of Parents Attorneys and Advocates, doesn't see it that way.

They argue that the request is a clear violation of ESSA, which says that states must give all students a test aligned to the standards in the grade in which the student is enrolled. They also say the waiver could lead to discrimination, segregation of students with disabilities, and would mask the performance of students in special education. And they say that the waiver doesn't have support from the state's largest school district, New York City. They also note that the Education Department already rejected a similar request from New York in 2015.

What's more, they write, granting the waiver would violate students' civil rights because "it deprives these students with disabilities equal educational opportunities and benefits as those available to non-disabled students," the special education organizations wrote in a Nov. 3 letter to DeVos.

It's not a sure thing though, that DeVos will say no to New York's request, just because the department has in the past. She's made it clear that she wants to give states and districts as much control as possible in ESSA implementation.

Some advocates for students in special education say they have had difficulty trusting DeVos since her confirmation hearing, in which she said that states should decide whether to follow all of the requirements of the federally-funded Individuals with Disabilities Education Act. 

In a followup question, she said she may have been confused about the fact that schools receiving federal dollars must follow federal law. Recently, DeVos raised eyebrows in the special education community when she scrapped more than 70 special education rules, which the department said were outdated or duplicative. More on DeVos' relationship with the special education community in this story.

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