This past September the New York State Board of Regents requested a waiver from the requirements of the Every Child Succeeds Act (ESSA). According to our federal education law, students with disabilities must be tested at grade level but NYS wants to give students tests that are aligned with their instructional level, not their age. This waiver request provoked protests from a variety of advocates for children with disabilities, but the Board of Regents plowed ahead with its proposal to jettison subject tests for special needs kids except for math and English Language Arts. And yesterday, with little warning (Chalkbeat: “after it was added to their meeting agenda without prior notice or public comment”) a committee of the Board of Regents voted to try to get rid of math and ELA as well.
Last month I explained my concerns with this waiver as a mom of a son with significant disabilities. (Here’s my son’s story.) And I’m far from alone in believing that this soft bigotry of low expectations will prove yet another impediment for students who are eligible for special education services.
From the NY Times:
Their action quickly drew criticism. Stephen Sigmund, the executive director of High Achievement New York, a coalition that advocates higher standards, said in a statement, “The Regents shouldn’t make significant policy changes with an 11th hour and 59th minute addition to the agenda.” Noting that the previous change to loosen requirements for students with disabilities was made last year, Mr. Sigmund continued, “Removing another graduation requirement, demonstrating a minimum score on ELA and Math Regents exams, so soon after the last change is the wrong direction.”
In addition, before this last-minute waiver request to lower the bar further, on November 29th a host of advocates wrote to Secretary of Education Betsy DeVos urging her to “to reject New York’s requested waivers under ESSA…If granted, these waivers would undermine students’ access to the general curriculum and would be contrary to the spirit and intent of the ESSA.” (Emphasis their own.)
The letter goes on to note that NYS made a similar request in June 2015, which was rejected by President Obama’s Education Secretary Arne Duncan because it was non-compliant under ESSA’s predecessor. “Under ESSA,” the signatories write,
[T]here are only two possible state assessments for students with disabilities—the general assessment and the alternate assessment aligned with the challenging state academic standards. Although the alternate assessment is based on alternate academic achievement standards, these achievement standards must be based on grade level academic content standards. In other words, although the expectations for achievement are different, the content is still from the grade in which the student is enrolled. Since below grade level assessments are not permitted for students who take an alternate assessment, there is no valid rationale for offering below grade level assessments to students with disabilities who take the general assessment.
The signatories of the letter are equally concerned with the impact of the waiver on Black students, who are disproportionately represented among students labeled as disabled.
Further, New York’s proposal to selectively provide students with disabilities who are below grade level a different test from students without disabilities who are below grade level unjustly discriminates and violates these students’ rights under Section 504 of the Rehabilitation Act of 1973[viii] since it deprives these students with disabilities equal educational opportunities and benefits as those available to non-disabled students. In addition, as was previously explained in a November 3 letter from the Consortium for Citizens with Disabilities, students with disabilities in New York experience a high degree of segregation compared to the rest of the nation, especially those students in disability categories most likely to be affected by the requested waiver.[ix] Additionally, given the overrepresentation of Black students in the Intellectual disability category, it is likely that Black students would be overrepresented among students instructed and assessed outside of their grade level, raising additional concerns about the civil rights of students under this waiver request.
Will Secretary DeVos grant the waiver? Sadly, she most likely will. States’ rights take precedent over the oversight, accountability, and protections for historically-under-served students embedded in federal education law.
Our children deserve better.
Here’s the full letter. The signatories are Alliance for Excellent Education, The Arc of the United States, Council of Parent Attorneys and Advocates, Democrats for Education Reform, The Education Trust, Judge David L. Bazelon Center for Mental Health Law, League of United Latin American Citizens, MALDEF (Mexican American Legal Defense & Educational Fund), NAACP, National Center for Learning Disabilities, National Disability Rights Network, National Down Syndrome Congress, National Indian Education Association, National Urban League, and TNTP.