3
Legal and Political Contexts for Including Students with Special Needs in Assessment Programs

Workshop speakers, Thomas Toch, guest scholar with the Brookings Institute, and Arthur Coleman, legal counsel with Nixon Peabody LLP, made presentations to lay out the political and legal context in which inclusion and accommodation occurs. Toch spoke about the proposed school reform measures that were being debated in Congress at the time of the workshop and have since passed. This legislation was described in Chapter 1, and relevant points are repeated here. Coleman spoke about the federal laws that have implications for inclusion and accommodation.

POLITICAL CONTEXT

Coleman opened his presentation by saying that there is one issue that has bipartisan agreement in Washington these days—that tests are good. Testing was a significant component of the Goals 2000: Educate America Act of 1994, the school reform measures enacted by the Clinton administration, and the Improving America’s Schools Act1 (IASA), the 1994 reauthorization of the Elementary and Secondary Education Act (ESEA). Testing is also the centerpiece of the No Child Left Behind Act, the 2001 reauthorization of the ESEA. This emphasis on testing stems from the belief that the only way to know how well students are achieving is to

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P.L. 103–328.



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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop 3 Legal and Political Contexts for Including Students with Special Needs in Assessment Programs Workshop speakers, Thomas Toch, guest scholar with the Brookings Institute, and Arthur Coleman, legal counsel with Nixon Peabody LLP, made presentations to lay out the political and legal context in which inclusion and accommodation occurs. Toch spoke about the proposed school reform measures that were being debated in Congress at the time of the workshop and have since passed. This legislation was described in Chapter 1, and relevant points are repeated here. Coleman spoke about the federal laws that have implications for inclusion and accommodation. POLITICAL CONTEXT Coleman opened his presentation by saying that there is one issue that has bipartisan agreement in Washington these days—that tests are good. Testing was a significant component of the Goals 2000: Educate America Act of 1994, the school reform measures enacted by the Clinton administration, and the Improving America’s Schools Act1 (IASA), the 1994 reauthorization of the Elementary and Secondary Education Act (ESEA). Testing is also the centerpiece of the No Child Left Behind Act, the 2001 reauthorization of the ESEA. This emphasis on testing stems from the belief that the only way to know how well students are achieving is to 1   P.L. 103–328.

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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop evaluate their performance and measure their progress. Thus, although some may regard tests as “the enemy,” tests are considered a benefit in the context of federal policy because they provide a means for holding schools accountable for student progress. School systems cannot deny such a benefit to a student without a compelling reason. The No Child Left Behind Act2 requires states to provide for the participation of all students in their systems of assessments. The legislation requires annual testing in reading and mathematics in grades three through eight beginning with the 2005–06 school year, and testing in science at three grade levels (3–5, 6–9, and 10–12) beginning with 2007–08 [Sec 1111 (b) (3)]. With respect to students with disabilities, the legislation requires that states provide reasonable accommodations as defined under the Individuals with Disabilities Education Act (IDEA). For English-language learners, the law requires students to be assessed to the extent feasible in the language that best reflects what they know and can do. Students who have attended school in the United States for three years must receive assessments in English of their skills in reading and language arts [Sec. 1111 (b) (3) (c) (ix and x)]. Moreover, the law requires local education agencies to assess the oral language, reading, and writing skills of “limited-English proficient” students by the 2002–03 school year [Sec. 1111 (b) (7)]. The legislation also explicitly requires schools, school districts, and states to set standards and report annual progress for English-language learners and students with disabilities [Sec. (c) (VII)]. Rewards and corrective actions for schools are based on students in these groups making adequate yearly progress. LEGAL CONTEXT In laying out the legal context for inclusion and accommodation, Coleman noted that there is a “complex maze” of federal laws that relate to standards-based educational reform. He distinguished between laws that deal with fundamental student rights and those that are related to a particular federal grant program. Accordingly, students who are in public or private schools that are recipients of federal funds are protected by guarantees that are related to appropriate test use provisions. Such laws include 2   Some of the details about the No Child Left Behind Act are based onToch’s presentation, and some are drawn from a paper by William Taylor (2002) describing the terms of the adopted legislation.

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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, the Equal Educational Opportunities Act, Section 504 of the 1973 Rehabilitation Act, and Title II of the Americans with Disabilities Act (ADA) of 1990. The Fourteenth Amendment to the Constitution guarantees protection from discrimination and provides for due process. Public schools are prohibited from denying students the equal protection of the law or life, liberty, or property interests without due process. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin and, according to Coleman, has been interpreted as requiring inclusion of English-language learners in testing. This interpretation is based on the premise that testing is a benefit; categorically excluding a student from testing amounts to denying him or her a benefit and potentially severely limiting future educational opportunities. The Equal Educational Opportunities Act protects the rights of language-minority students. The ADA and Section 504 protect the rights of individuals with disabilities. Federal grant programs, on the other hand, have very specific requirements that do not trigger student rights of action in court, but instead condition the award and use of federal funds around certain specified test use practices. Laws that fall into this category are Titles I and VII of the 1994 ESEA, the Goals 2000: Educate America Act, and the No Child Left Behind Act. Title I of the 1994 ESEA serves disadvantaged, high-poverty students, while Title VII serves language minority students. As noted above, Goals 2000 and No Child Left Behind promote standards-based reform efforts. The Individuals with Disabilities Education Act (IDEA)3 falls into the category of a grants program because it provides funds to states to serve students with disabilities, but it is also a civil rights law that extends the constitutional right of equality of educational opportunity to students with disabilities who need special education. In 1997 the IDEA was amended to better ensure that students with disabilities fully participate in public education and receive the special services detailed in their individual education plans (IEPs). The new IDEA regulations require states to include students with disabilities in statewide testing, to offer appropriate accom- 3   P.L. 105–12.

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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop modations whenever possible so that students can be included or to develop and implement alternate assessment systems to facilitate inclusion of those with the most severe disablities, and to report in a similar fashion the performance of all students. Accordingly, school districts must provide students with disabilities with a free appropriate education, which includes an IEP that is in most cases linked to the district’s high standards curriculum and is provided in the least restrictive environment possible. According to Coleman, school districts have an “affirmative obligation” to provide English-language learners with equal access to educational programs so that these students have the opportunity to become proficient in English and to achieve the high academic standards of their educational programs. School districts must ensure that their curricular and instructional programs for English-language learners are recognized as educationally sound or otherwise vouched for as legitimate educational strategies and that they are implemented effectively and monitored over time (and altered, as needed) to ensure success. INCLUSION Inclusion is explicitly addressed in numerous pieces of legislation. For students with disabilities, inclusion is addressed in the IDEA, Title II of the ADA, and Title I of the 1994 ESEA. The IDEA and Title I both contain specific language requiring students with disabilities to be included in statewide assessments [Sec. 612 (a) (17)] [Sec. 1111 (b) (3) (F)]. Exclusion from assessments based on disability violates Section 504 of the Rehabilitation Act [29 U.S.C. 794] and Title II of the ADA [42 U.S.C. 12132]. For English-language learners, inclusion is addressed in Title I of the 1994 ESEA and Title VI of the Civil Rights Act. Title I specifies that states must provide for the inclusion of limited-English-proficient students in Title I assessments [Sec. 1111 (b) (3) (F)]. Title VI states that to the extent that testing opportunities represent benefits or are related to educational opportunities, English-language learners must be included. ACCOMMODATIONS There are also legal provisions that mandate accommodations for students with special needs. Title II of the ADA specifies that students with disabilities must be provided with “appropriate accommodations where necessary” [20 U.S.C. 15412 (a) (17) (A)]. Title I of the 1994 ESEA also

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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop specifies that assessments “shall…provide for…the reasonable adaptations and accommodations for students with diverse learning needs [Sec. 1111 (b) (3) (F) (ii)] and be consistent with relevant…professional and technical standards [Sec. 1111 (b) (3)]. Accommodations for English-language learners are addressed in Title VI of the Civil Rights Act and Title I of the ESEA. Title VI states that English-language learners must be provided appropriate accommodations (see Title VI). Title I states that English-language learners shall be assessed to the extent practicable in the language and form most likely to yield accurate and reliable information…in subjects other than English [Sec. 1111 (b) (3)]. Materials to assess English-language learners must measure the extent to which the student has a disability and needs special education rather than measuring his or her English skills [34 CFR part 300 532 (a) (2)]. According to Coleman, under federal law there are clearly described obligations regarding the role of the IEP team in determining how students with disabilities are included and accommodated in assessments. Furthermore, there is a clearly defined statement from the Department of Education regarding the state’s obligation. That is, the state’s role is to develop policies to ensure that appropriate accommodations are used, but the state cannot limit the authority of the IEP team to select suitable and appropriate accommodations. English-language learners, on the other hand, do not have IEPs. Thus, there is no common basis for decision making about inclusion and accommodation for these students. REPORTING Titles I and VII of the 1994 ESEA require states to report disaggregated achievement test results for students with disabilities and English-language learners in order to monitor their progress. This requirement for reporting is continued and raised to a new status with the No Child Left Behind Act. As mentioned previously, states will be required not just to report results for students with disabilities and English-language learners, but to ensure that students in these groups make progress. ALTERNATIVE ASSESSMENTS For students with disabilities, there is an additional legal requirement to provide alternate assessments when appropriate accommodations cannot

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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop be provided on statewide or large-scale assessments [20 U.S.C. 1412 (a) (17) (A)]. Coleman suggested that there is no comparable provision for English-language learners because it is assumed that a language deficit is temporary and over time will be corrected. For students with disabilities there is no expectation that the disabilities will “go away.” COURT CHALLENGES In Coleman’s opinion, the most critical issue for a testing program is a clear articulation of the purposes and objectives for testing. States have a legal obligation to provide appropriate accommodations, but the meaning of “appropriate” varies according to the objectives for testing and the constructs being measured. Thus, when testing programs must justify decisions about accommodations, it is crucial to know what is being tested and why the accommodation is or is not appropriate. Coleman advised testing programs to make sure that their policies and practices are appropriate, in accord with federal law, and aligned with sound educational practices. Coleman described two recent cases that dealt with the appropriateness of the accommodations for the constructs being tested and the objectives for the assessment program. In a recent case in Indiana (Rene v. Reed), the decision of the state appellate court was that IEP accommodations need not be provided if they would affect the validity of test results. In another case, the state of Oregon was sued by students with disabilities. State officials agreed to a settlement in which the state assumes the burden of proof for demonstrating the inappropriateness of an accommodation. This decision means that students with disabilities who have accommodations specified in their IEPs would receive those accommodations on statewide assessments unless the state of Oregon could prove the accommodations would invalidate the construct being measured. In both cases, the court made its decision after considering the overall intent of the assessment program. Coleman stressed that one factor behind many lawsuits is the extent to which high stakes are tied to the assessment. He finds that federal law—to the extent that it provides a foundation for a private damages claim in court—is generally not going to be triggered unless a student is denied an opportunity or a benefit. This can result when a student has not received the accommodations he or she requested and then fails a test that has high stakes attached to the results, such as placement, promotion, or graduation decisions. In addition, Coleman knows of several cases in which students did not claim that they were denied a promotion or graduation opportu-

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Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop nity but that they were stigmatized or traumatized by the testing experience. Coleman speculated that changes could be on the horizon as a result of the recent education legislation. To date, litigation has primarily been associated with tests that have high stakes for students, such as placement, promotion, and graduation tests. Coleman foresees that new sorts of cases could arise when the current legislation is implemented. He referred to these as second-generation claims in which students are impacted by the accountability measures enacted for schools and/or school districts, such as corrective actions imposed as a result of a school’s poor test performance. To date, there has been no litigation associated with NAEP because it has not been used to provide instructional benefits or opportunities to individual students. However, NAEP may have a new role in the new legislation because comparisons may be made between NAEP results and states’ assessment results. Coleman speculated that NAEP may be drawn into such second-generation claims if high-stakes decisions were based on such comparisons.