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Advocates Worried About Special Ed. Testing Waivers Under ESSA

U.S. Secretary of Education Betsy DeVos has allowed nearly half of states to get wiggle room from a provision in the Every Student Succeeds Act aimed at making sure that only a small percentage of students are taking alternative tests reserved for children with the most significant cognitive disabilities.

And the process for granting that leeway has made special education advocates uneasy.

Those advocates fear the department—and the states—aren’t meeting transparency requirements in the law. They’re uncertain about how monitoring these waivers from the law’s requirements will work. Some are wondering just why so many states needed the flexibility in the first place. And their concerns echo others’ fears about the department’s overall commitment to civil rights enforcement for vulnerable populations under DeVos.

ESSA, which passed back in 2015, placed an overall 1 percent cap on students in each state who can be given alternate tests. That amounts to about 10 percent of students in special education.

ESSA— and regulations written by a group of advocates and the Education Department in 2016— allowed states to seek waivers from that requirement as long as they met certain qualifications.

Twenty-three states have sought these testing waivers. And DeVos and her team granted them to at least 19 states: Arkansas, Delaware, Georgia, Idaho, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin.

Three other states—Arizona, Hawaii, and Indiana—received partial waivers that apply only to reading and math testing, not science assessments.

“That’s a lot, considering that the cap has been in law since ESSA passed back in 2015,” said Ricki Sabia, a senior education policy adviser for the National Down Syndrome Congress.

“States should have made more of an effort since 2015 when the law was passed to bring down the participation of students taking the alternate assessment, so the waiver wouldn’t be necessary,” Sabia said in an email. “They have known about the cap for 2.5 years, but because the waiver was available it doesn’t seem like much effort was made,” she said.

Slow to Implement

Back in the 2013-14 school year, around the time the requirement was first put in place, more than three dozen states were exceeding the cap, according to federal data. Most, however, weren’t dramatically over the line. Just 17 used alternative assessments with 1.31 to 2.2 percent of students.

But many states didn’t use the time between ESSA’s passage and the first year of its implementation to begin working toward meeting the law’s requirements.

The statewide cap presents a challenge because there isn’t a similar cap on how many students can take alternate assessments at the district level.

That means if many districts in a particular state go over the cap, other districts may be even more restricted in the number of students they can test using alternate assessments. States are charged with making sure districts are choosing the right students to test using alternate measures.

Two other states—Maine and Pennsylvania—applied for the waivers but were rejected because they did not meet test participation requirements. States must test 95 percent of all their students and 95 percent of students with disabilities before seeking a waiver. Neither state met the testing participation requirement for students with disabilities.

But alarmingly for advocates, the rejection letters did not include any information on next steps, meaning what the states should do if they were unable to stick to the one 1 percent cap.

Elizabeth Hill, a spokeswoman for the department, said the agency’s office of elementary and secondary education and the office of special education and rehabilitative services stand ready to provide technical assistance to states regarding how to stay under the cap.

Advocates also point out that states seeking waivers must provide data showing the number of students in each subgroup that last year took, or are now slated to take, alternate assessments. That way advocates can see if, for example, racial minorities are being disproportionately held to different standards. And states are supposed to make the requests public, and give the education community a chance to comment, advocates say.

Most states that received waivers did not take this step, said Candace Cortiella, the founder of the Advocacy Institute, a non-profit that works to improve the lives of people with disabilities. In fact, the majority of states did not make their applications publicly available at all, she said. There were a few exceptions, she said, including Kentucky.

Advocates asked the Education Department to publish state waiver requests on its website, making the request both in an in-person meeting in early April, and by letter. So far, the department has declined.

“Many states are still not making the waiver requests publicly available so parents and advocates can see the data provided and the steps that the states promised to take to lower the participation rate to meet the cap. We have asked the department to post the waiver requests (not just approval letters) but that hasn’t happened,” said Cortiella in an email.

In response, Hill said the department does not post incoming waiver requests of any kind. But, she added, the agency does post both approvals and denials. That, she said, provides “increased transparency over the last administration when only approvals were posted.”

Concerns About Monitoring

Advocates also have qualms about how monitoring will work. States must help districts that go over the cap, and make sure those districts are appropriately training school staff, especially individual education program, or IEP, teams when it comes to who has a severe cognitive disability and who doesn’t.

“We are concerned about ED’s capacity to monitor the 1 percent cap waivers,” Cortiella said.

She’s particularly worried because it appears monitoring will fall to the elementary and secondary education office, the department’s main K-12 office, rather than the special education office,, which has more expertise on the issue. The department, she said, assured her that states with waivers would get extra scrutiny, but that didn’t seem sufficient, she said.

Hill said that both offices have “been working closely on this issue thus far and will continue to do so as we support states.” She added that, “the support for states, districts, and schools to provide guidance to IEP teams about determining the appropriate assessment is an important role that OSERS plays.”

And there’s another issue that nags at special education advocates: Cortiella was told by a department official that about a dozen other states are over the testing cap but haven’t applied for a waiver, possibly because those states wouldn’t meet the test participation requirements outlined in the law and its regulations. She hasn’t been able to get additional answers from the department on which states those are or what’s being done to make sure they simply aren’t ignoring the law.

In response, Hill said it’s too soon to tell how many states exceeded the cap, which went into effect in the 2017-18 school year. The agency, she said, is aware that some states exceeded the cap in the 2016-17 school year, when the requirement wasn’t in effect. The agency, though, won’t have data on whether states busted past the 1 percent cap in the 2017-18 school year until next winter.

Because of that delay, “it is premature to determine what action ED may take in the event that a state exceeds 1 percent,” Hill said in an email.

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