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Alternate Tests for Special Education Still Sticking Point for ESSA Panel

Cross-posted from Politics K-12

By Alyson Klein


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, which 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.

(Note from Christina: I wrote a recent blog piece that goes into more detail on why the negotiators are so hung up on the topic of alternate assessments.) 

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.

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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.)

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 the state's 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. 

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