In a major shift, the federal government is now going to evaluate the effectiveness of states’ programs for their special education students based on student success.
Under a new framework known as Results-Driven Accountability, the U.S. Department of Education will now take educational results for students with disabilities into consideration when evaluating each state’s compliance with the Individuals with Disabilities Education Act (IDEA). Up until now, determination of states’ provision of a ‘free, appropriate, public education” (FAPE) has been based on paperwork proving procedural compliance: timely evaluations and individual education programs (IEPs). Now, the federal Department of Education wants to find out if the programs work.
System Must Do More Than Measure Compliance
U.S. Secretary of Education Arne Duncan announced last week that oversight criteria for states’ implementation of the IDEA will include performance outcome measures for students and not paperwork compliance alone.
“It’s not enough for a state to be compliant if students can’t read or write,” said Duncan. “We must have a system that will do more than just measure compliance.”
Government figures show that two-thirds of students with disabilities are performing below grade level in reading and math, some well below. Moreover, the gap widens as special education students move through the grades until, by the eighth grade, 80% are below grade level. Therefore, it is perhaps not surprising that the dropout rate for students with disabilities is twice that for regular education students.
Thus, Duncan stated, the Department will now look at, for example, graduation rates, test scores, any gaps in test scores between regular and special education students and other measures of the achievement of special education students to determine if states are meeting their needs.
Among other measures, the Department will also now take into account student performance on its own National Assessment of Educational Progress (NAEP), a test the federal government gives to a sample of students in every state every two years.
According to information from the Department, based on the NAEP results, currently only fifteen states, including Pennsylvania, meet requirements, while two – Texas and California – need intervention, and the remaining states need assistance. Under the IDEA, states may fall into one of four categories: meets requirements, needs assistance, needs intervention, or needs substantial intervention. According to information from the Department, under the new, stricter rules, the fifteen states now in compliance represent a drop from thirty-eight deemed to have met requirements under the old rules. If a state does not meet requirements two years’ running, under the IDEA, the Department must order the state to obtain technical assistance or label the state “high risk” and withhold federal dollars.
This is reportedly the first time that the federal government has used the NAEP to rank states on the academic progress of special education students with consequences attached.
Duncan announced creation of a $50 million technical assistance center to help states comply with the new guidelines.
“We know that when students with disabilities are held to high expectations and have access to a robust curriculum, they excel,” said Duncan.
In concept, it is difficult to disagree with the shift. In concept, it is the same assertion of high expectations to which all students should be held. No exceptions. “Every child, regardless of income, race, background, or disability can succeed if provided the opportunity to learn,” says Duncan. “We know that when students with disabilities are held to high expectations and have access to the general curriculum in the regular classroom, they excel. We must be honest about student performance, so that we can give all students the supports and services they need to succeed.” Agreed. But the devil’s in the details, and the shift raises questions.
The new framework certainly appears to focus on standardized test results. Questions continue as to whether high stakes testing is the best way to determine academic success, for any student, not just those with disabilities. The issues raised by the PSSAs and their ilk have not gone away, not least of which is a concern that there is increasing pressure to teach to the test, never mind the time taken away from instruction for the testing itself.
Moreover, the apparent emphasis on testing creates a seeming paradox in the paradigm shift. Students with disabilities are to have their unique needs considered in the development of their individualized education program but accommodation of those unique needs may or may not be taken into consideration in the standardized testing room. Where they are tested on grade level.
Were a special education student able to perform on grade level, the question then becomes whether s/he could then exit from special education. Some students with disabilities will never be on grade level. But that doesn’t mean that they are not performing and are not successful.
The question is whether or not there is a proven connection between results on high stakes testing and achievement of academic skills in reading, writing and arithmetic, in independent thought, problem solving and critical thinking. Or does high stakes testing result in the obverse of these? Does high stakes testing result in cookie cutter instruction and conformity of thought?
The call to “give all students the supports and services they need to succeed” is the right one, provided the federal government gives to all states the funding they need for those supports and services. Special education has never been funded as originally promised by the federal government when the legislation was originally passed, now more than forty years ago. In that context, creation of a $50 million technical assistance center to help states comply with the new guidelines rings hollow – and perhaps a tad patronizing.
The Bottom Line
School entities may find that standardized test results for special education students are now included in FAPE. Standardized test results may now appear as evidence of a student’s progress, or lack thereof, at due process hearings and be taken into consideration in a hearing officer’s decision as to whether or not a school entity has provided FAPE. Furthermore, if Pennsylvania does not continue to be “up to snuff” on the NAEP, a reduction in federal dollars may be the sanction, which further burdens already over-burdened districts suffering from the many unfunded mandates in public education.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
