IDEA Series Every Student Succeeds Act and Students with Disabilities National Council on Disability
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IDEA Series
Every Student Succeeds Act and
Students with Disabilities
National Council on Disability
February 7, 2018
National Council on Disability (NCD) 1331 F Street NW, Suite 850 Washington, DC 20004 (IDEA Series) Every Student Succeeds Act and Students with Disabilities National Council on Disability, February 7, 2018 Celebrating 30 years as an independent federal agency This report is also available in alternative formats. Please visit the National Council on Disability (NCD) website (www.ncd.gov) or contact NCD to request an alternative format using the following information: ncd@ncd.gov Email 202-272-2004 Voice 202-272-2022 Fax The views contained in this report do not necessarily represent those of the Administration, as this and all NCD documents are not subject to the A-19 Executive Branch review process.
National Council on Disability
An independent federal agency making recommendations to the President and Congress
to enhance the quality of life for all Americans with disabilities and their families.
Letter of Transmittal
February 7, 2018
President Donald J. Trump
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD), I am pleased to submit this report titled
Every Student Succeeds Act and Students with Disabilities. This report is part of a five-report series
on the Individuals with Disabilities Education Act (IDEA) that examines the Every Student Succeeds
Act (ESSA)’s amendments to IDEA, explains their likely impact on students with disabilities as
ESSA implementation moves forward, and provides recommendations.
As you know, the right of students with disabilities to receive a free and appropriate public
education in the least restrictive environment is solidly rooted in the guarantee of equal protection
under the law granted to all citizens under the Constitution. In 2015, ESSA was enacted to further
advance educational equity and serve the interests of all students, and contains several key
provisions that align with IDEA, such as Challenging State Academic Standards, Student Academic
Assessments, and State Accountability Systems. Under ESSA, parents of students with disabilities
should have access to clear information that assists them in knowing how their children are doing
in school compared to the state standards, assurance that their children are included in state
accountability systems as all other students, and that their children have an equitable shot at
getting the coveted prize of high school: a “regular” diploma.
To understand better how students with disabilities may be impacted by ESSA, the research for this
focused on how ESSA addresses students with disabilities through standards, assessment, and
accountability, and details the findings.
The Council stands ready to assist the Administration in ensuring the right to a free and appropriate
public education for students with disabilities as set forth in IDEA.
Respectfully,
Clyde E. Terry
Chairperson
(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of
the U.S. House of Representatives.)
1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004
202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov2 National Council on Disability
National Council on Disability Members and Staff
Members
Clyde E. Terry, Chairperson
Benro T. Ogunyipe, Vice Chairperson
Billy W. Altom
Rabia Belt
James T. Brett
Bob Brown
Daniel M. Gade
Wendy S. Harbour
Neil Romano
Staff
Vacant, Executive Director
Joan M. Durocher, General Counsel & Director of Policy
Amy Nicholas, Attorney Advisor
Amged Soliman, Attorney Advisor
Ana Torres-Davis, Attorney Advisor
Anne Sommers, Director of Legislative Affairs & Outreach
Phoebe Ball, Legislative Affairs Specialist
Lisa Grubb, Director of Operations and Administration
Stacey S. Brown, Staff Assistant
Keith Woods, Financial Management Analyst
Every Student Succeeds Act and Students with Disabilities 34 National Council on Disability
Acknowledgments
The National Council on Disability thanks Selene Almazan, Denise Marshall, and Melina Latona of
the Council of Parent Attorneys and Advocates; Laura A. Schifter of the Harvard Graduate School of
Education; and Laura W. Kaloi of the McKeon Group, for the research conducted in developing this
report.
Every Student Succeeds Act and Students with Disabilities 56 National Council on Disability
Contents
Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
List of Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Inclusion of Students with Disabilities in Standards-Based Reform. . . 13
The 1% Rule and the 2% Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Benefits of Inclusion in Standards-Based Reform . . . . . . . . . . . . . . . . . 16
Mechanisms of IDEA and ESSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Research Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Research Methods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Qualitative Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Policy Analysis and Literature Review. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Chapter 1: ESSA Provisions Specific to Students with Disabilities. . . . . . . . . . . . . . . . . 19
Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Alternate Assessment Aligned with Alternate Achievement
Standards (AA-AAS). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Locally-Selected Assessment and Computer
Adaptive Assessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
State Accountability System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Fifth Indicator or Additional Indicator. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
School Improvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
State Diploma Options and Students with Disabilities . . . . . . . . . . . . . . . . 24
Disciplinary Practices, Including the Use of Seclusion and Restraint . . . . . 25
Professional Learning and Curricular Supports . . . . . . . . . . . . . . . . . . . . . . 26
Every Student Succeeds Act and Students with Disabilities 7Chapter 2: Other Policy Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Federal Funding of ESSA and School Choice. . . . . . . . . . . . . . . . . . . . . . . . 29
Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Private School Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Regulatory Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State Planning Process: Accountability for Students with Disabilities. . . . 32
Chapter 3: Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Chapter 4: Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8 National Council on DisabilityExecutive Summary
I
n the past 20 years, students with disabilities This report finds that ESSA maintains key
have made substantial educational progress— provisions to ensure the inclusion of students
academic test scores, high school graduation with disabilities in accountability systems.
rates, and college-going rates have all increased. However, ESSA also affords states greater
This progress, in part, is related to the inclusion flexibility in how accountability systems
of students with disabilities in standards-based are established. ESSA includes additional
reform. With standards-based reform, educators assessment provisions to utilize effectively
must pay attention to what all students should be accommodations for students with disabilities
able to know and do for the grade level assigned and additional provisions to better support
and address gaps in academic performance, students with the most significant cognitive
including that of students with disabilities. disabilities. Finally, to improve opportunities for
In 2015, Congress passed the Every Student student learning, ESSA requires states to engage
Succeeds Act (ESSA), establishing the current stakeholders in the state planning process and
federal parameters for standards-based reform. address school conditions for student learning
To understand better how students with and the overuse of harsh disciplinary tactics,
disabilities will be impacted by ESSA, the National including seclusion and restraint.
Council on Disability (NCD) commissioned a To ensure ESSA implementation best supports
report to study this in part by asking: the needs of students with disabilities, NCD
recommends that Department of Education
■■ How do policies in ESSA impact students
officials, peer reviewers, and states guarantee
with disabilities? Specifically, how does
state plans by:
ESSA address students with disabilities
through standards, assessment, and ■■ Maintaining inclusion of all students with
accountability? disabilities in accountability systems
To address these questions, NCD conducted
■■ Supporting state-designed general and
a mixed methods study gathering relevant policy, alternate assessment systems that
qualitative, and quantitative information. In accurately measure the performance
particular, forums convened to gather parent and of students with disabilities through
student perspectives and interviewed several accommodations and embedding principles
local and state administrators and researchers. of universal design for learning (UDL)
Every Student Succeeds Act and Students with Disabilities 9■■ Effectively supporting students with the ■■ Creating plans to reduce the use of harsh
most significant cognitive disabilities to discipline practices, especially seclusion and
increase access to the general education restraint
curriculum ■■ Including meaningful stakeholder
■■ Promoting the use of evidence-based engagement in all aspects of ESSA planning
practices to provide intervention and and implementation
support to schools and districts identified for
improvement
10 National Council on DisabilityList of Acronyms
AAS alternate academic achievement standards
AA-AAS alternate assessment aligned with alternate academic achievement standards
AA-MAS alternate assessments on modified achievement standards
ADA Americans with Disabilities Act
COPAA Council of Parent Attorneys and Advocates
CRA Congressional Review Act
EIR Education Innovation and Research
EL English learners
ESEA Elementary and Secondary Education Act
ESSA Every Student Succeeds Act
FOCUS Furthering Options for Children to Unlock Success
IDEA Individuals with Disabilities Education Act
IEP Individualized Education Program
MTSS Multi-Tiered System of Supports
NCD National Council on Disability
NCLB No Child Left Behind
PBIS Positive Behavior Interventions and Support
RRTF Regulatory Reform Task Force
SSIP State Systemic Improvement Plan
UDL universal design for learning
Every Student Succeeds Act and Students with Disabilities 11The goal of ESSA “is to provide all children
significant opportunity to receive a fair,
equitable, and high-quality education, and
to close educational achievement gaps.”
12 National Council on DisabilityIntroduction
O
n December 10, 2015, President Obama ESEA (Improving America’s Schools Act of 1994,
signed the Every Student Succeeds Act NCLB, and now ESSA).
(ESSA)1 into law. ESSA reauthorized the
Elementary and Secondary Education Act (ESEA), Background and Context
replacing the previous reauthorization, the No Inclusion of Students with Disabilities
Child Left Behind (NCLB) Act. In a departure from in Standards-Based Reform
NCLB, ESSA returns considerable authority to Prior to NCLB, states had developed standards-
states and school districts, but it maintains the based accountability systems, yet students with
core tenants of standards-based reform. disabilities were excluded systematically from
The standards-based reform movement is participating in the assessments.3 This exclusion
based largely on the theory that establishing a of students with disabilities was problematic
system of standards, assessment, accountability, in that testing results provided inaccurate
and school improvement information about school
will increase student performance, referrals
achievement.2 Academic
ESSA returns considerable authority to special education
content standards to states and school districts, but increased, and students
represent a consensus it maintains the core tenants of with disabilities were
of what students should standards-based reform. subjected to lower
know and be able to expectations.4
do. Assessments measure achievement against In response, the 1997 reauthorization of
the standards to determine if students are the Individuals with Disabilities Education Act
meeting them. Accountability systems are tied to (IDEA) required that states include students
performance on those assessments to determine with disabilities in state assessment systems,
how effectively schools are teaching students to including through the development of alternate
the standards. Finally, schools underperforming assessments.5 Four years later, NCLB went
in the accountability system are required to take further by requiring (1) students with disabilities
action to improve student academic outcomes. be held to the same expectations as students
These principles of standards, assessment, without disabilities, (2) schools publicly report
accountability, and school improvement have the performance of students with disabilities,
been included in the past three iterations of the and (3) schools be held accountable for their
Every Student Succeeds Act and Students with Disabilities 13performance just as any other subgroup of the most significant cognitive disabilities known
students. As a result, parents and educators now as the “1% rule.”9
had tangible information about how students The new 1% rule permitted states and
with disabilities were performing in reading, districts to count the proficient and advanced
math, and high school graduation as compared scores of students with disabilities assessed on
to their peers. Also, the academic and graduation an alternate assessment aligned with alternate
outcomes of students with disabilities were no academic achievement standards (AA-AAS) as
longer hidden and schools and districts were proficient on the regular assessment (the regular
compelled to use the data to provide targeted assessment is the test all other students take,
intervention to help improve the outcomes of aligned to the regular state standards). Therefore,
students. this allowed states to count students taking an
alternate assessment as proficient on the general
The 1% Rule and the 2% Rule assessment. States could count the scores of
After the passage of NCLB, the increased students taking AA-AAS as proficient as long
transparency and strict school improvement as the number of student scores counted did
requirements tied to not exceed 1 percent of
academic performance all students assessed.
resulted in a backlash
[T]he academic and graduation Understanding the
to accountability.6 Some outcomes of students with required use of 1 percent
states were criticized for disabilities were no longer as a cap on the scores
“gaming the system” hidden . . . that could be used of all
through mechanisms students in the policy
such as establishing low standards, low can be confusing because in fact, the policy
proficiency targets, and high N sizes7 (N size only applied to students with disabilities not to
refers to the minimum number of students the general student population. To help clarify,
needed to form a student subgroup for federal 1 percent of all students in the general population
reporting and accountability purposes).8 Other is approximately 10 percent of all students with
stakeholders pushed for greater flexibility in disabilities, which means states could include
the law’s requirements so that schools could up to 10 percent of the scores of students with
receive higher ratings in state accountability disabilities taking AA-AAS as proficient when
systems. calculating the proficiency of students with
To increase flexibility, the Department of disabilities.10
Education issued two regulations directly After the development of the 1% rule, all
impacting students with disabilities that became states developed AA-AAS. In the 2013–2014
known as the “1% rule” and the “2% rule.” school year, states varied in their use of AA-AAS
In 2003, the Department of Education issued with participation rates ranging from about 0.5
regulations permitting the use of alternate to 2 percent of all students.11 In considering
assessments aligned to alternate academic the impact of the policy, stakeholders raised
achievement standards (AAS) for students with concerns that some states had established
14 National Council on Disabilitypolicies preventing students taking AA-AAS from only to students eligible for special education
receiving a regular high school diploma12 and services.
that participation on AA-AAS corresponded with Implementation of the 2% rule supported
segregated placements for academic subjects.13 advocates’ concerns about creating a problematic
In response to requests for greater loophole. In total, 16 states developed AA-MAS
flexibility to include students with disabilities in to implement the 2% rule. In the 2011–2012
accountability systems, in 2007, the Department school year, participation on AA-MAS varied
of Education released the “2% rule,” permitting across the states—11.7 to 52.9 percent of
alternate assessments against modified students with disabilities.18 Researchers found
academic achievement standards. The 2% rule that some students were given the AA-MAS even
allowed districts and states to count students when they had scored proficient on the regular
with disabilities who were “unlikely to achieve assessment in the previous year.19 Researchers
grade-level proficiency” as proficient if they also found African American students with
scored proficient on alternate assessments disabilities were much more likely to be assessed
on modified achievement standards (AA-MAS) against these easier assessments.20 Additionally,
as long as students in California, some
included as proficient districts assessed
did not exceed 2% of
Researchers found that some more than 70 percent
all students assessed students were given the AA-MAS of their students with
(2% translates to even when they had scored disabilities on AA-MAS.
approximately 20% proficient on the regular assessment Acknowledging the
of students with problems associated with
in the previous year.
disabilities).14 the 2% rule, in 2013,
Disability advocates raised concerns that the the Department of Education initiated steps to
implementation of the 2% rule inappropriately eliminate it.21 In August 2015, a final rule was
lowered expectations for students with published that prohibited the 2% rule. To justify
disabilities and created a loophole to remove the decision, the Department of Education
students with disabilities from the general stated:
assessment and from accountability systems.15
To justify the regulation, the Department of Nearly all states have developed and are
Education pointed to research suggesting administering new high-quality general
that approximately 1.8 to 2.5 percent of all assessments that are valid and reliable
students were unable to reach grade-level and measure students with disabilities’
reading standards in a given year.16 Importantly, knowledge and skills against college- and
in studying the issue further, researchers career-ready standards. Including students
discovered that persistently low-performing with disabilities in more accessible general
students were both students with disabilities assessments aligned to college- and
and students without disabilities.17 The 2% rule career-ready standards promotes high
permitting lower expectations, however, applied expectations for students with disabilities,
Every Student Succeeds Act and Students with Disabilities 15ensures that they will have access to grade- disabilities. With a joint interest in assuring
level content, and supports high-quality all students have access to a quality public
instruction designed to enable students education and exit high school prepared for
with disabilities to be involved in, and success in college or career, the business,
make progress in, the general education civil rights, and disability community worked
curriculum—that is, the same curriculum as collaboratively to advocate for these principles in
for nondisabled students.22 ESSA reauthorization.27 Specifically, the coalition
advocated for maintaining strong accountability
Benefits of Inclusion in Standards-Based systems, as those systems set expectations for
Reform
what it means to be a good school,28 maintaining
Despite the potential loopholes to accountability, a strong focus on subgroup performance, and
since the passage of NCLB, studies have safeguarding access to the general education
documented the numerous benefits of including curriculum for all learners.
students with disabilities in the ESEA. For
instance, in 2003, 33.6 percent of students with Mechanisms of IDEA and ESSA
disabilities who left special education dropped The underlying mechanisms of ESSA and IDEA
out of school, but by 2014, the dropout rate
23
have caused some to argue that the laws conflict
decreased to 18.5 with one another.29
percent.24 With the ESSA’s mechanism is a
increased transparency [I]n 2003, 33.6 percent of students
“top-down” approach
and accountability for with disabilities who left special that requires states to
the performance of education dropped out of school, establish consistent
students with disabilities, but by 2014, the dropout rate standards, assessment,
previous National Council and an accountability
decreased to 18.5 percent.
on Disability (NCD) system accounting for
reports highlighted that the performance for all students, disaggregated30
students with disabilities were performing better by student subgroup; whereas IDEA is a
academically and graduating high school at “bottom-up” approach that focuses on serving
higher rates. NCD reports also acknowledged
25
the individual student through the Individualized
stakeholders attributing the positive impact Education Program (IEP). Despite the concerns
to the fact that “students with disabilities about a potential conflict in these approaches,
were no longer ignored,” and that educators both Congress and the Department of Education
were “becoming aware of what students with saw the two laws as complementary. In fact, in
disabilities are capable of achieving if they are 2005 the Department noted:
held to high standards and expectations.” 26
The civil rights and disability communities Both laws have the same goal of improving
have long held that the ESEA provides some academic achievement through high
important protections for historically underserved expectations and high-quality education
student groups, including students with programs. NCLB works to achieve that
16 National Council on Disabilitygoal by focusing on school accountability,
teacher quality, parental involvement Research Questions Addressed
through access to information and choices in Report
about their children’s education, and the
use of evidence-based instruction. IDEA ■■ How do policies in ESSA impact students
complements those efforts by focusing with disabilities? Specifically, how does ESSA
specifically on how best to help students address students with disabilities through
with disabilities meet academic goals.31 standards, assessment, and accountability?
■■ How do the policies within ESSA amend or
A key aspect of IDEA is to ensure the
align with IDEA?
student has access to and makes progress in
the general education curriculum.32 In November
■■ To the extent that state plans or planning
2015, the Department of Education issued a processes are available, how have states
Dear Colleague Letter to define the general addressed students with disabilities and their
education curriculum further aligning NCLB and families in their plans or planning process?
IDEA.33 Specifically, the Department indicated
that because of NCLB’s requirement(s), the
general education curriculum should be aligned
with the state academic content standards for ■■ How do the policies within ESSA amend or
the grade in which the student is enrolled. As align with IDEA?
such, a student’s IEP should focus on supporting ■■ To the extent that state plans or planning
students in providing access to making progress processes are available, how have states
with the state academic standards. addressed students with disabilities and
As Congress completed the bipartisan their families in their plans or planning
passage of ESSA in 2015, they again upheld and process?
updated provisions of ESSA in alignment with
IDEA and acknowledged that both work together Research Methods
to help support the improvement of outcomes To address these questions, the NCD research
for students with disabilities. Because of this, it team conducted a mixed-methods study
is critical to understand how the policies in ESSA gathering stakeholder perspectives, as well as
can impact students with disabilities. Therefore, in policy and quantitative information.
this report, we consider the following questions.
Qualitative Analysis
Research Questions To gather stakeholder perspectives, the
■■ How do policies in ESSA impact students NCD research team conducted interviews
with disabilities? Specifically, how does and held five forums, four regional and
ESSA address students with disabilities one national. Specifically, the NCD team
through standards, assessment, and conducted 20 semistructured interviews
accountability? with key stakeholders, including Department
Every Student Succeeds Act and Students with Disabilities 17of Education officials, state and local Policy Analysis and Literature Review
administrators, and representatives from To address these research questions, we
disability rights organizations, professional reviewed the statute, related federal regulations,
associations, and parent organizations to and federal Dear Colleague Letters (often
determine perspectives on the potential impact referred to as federal guidance) to assess the
of ESSA on students with disabilities. current policies within ESSA. We focused both
In the second phase of research, we gathered on the policies that explicitly mention students
perspectives from parents and students, through with disabilities and IDEA and on those policies
four regional forums in California, Illinois, Texas, that have the potential to impact students with
and Virginia. NCD recruited participants through disabilities. We also have reviewed research and
the Council of Parent Attorneys and Advocates literature on the impact of standards-based reform
(COPAA)’s member network, local parent on the educational experiences of students with
networks, and state and national partners in the disabilities. Finally, we reviewed some of the initial
forum locations. In total, 72 people participated in state plans to evaluate the inclusion of students
the regional forums. Only 30 percent of regional with disabilities within those plans.
forum participants were COPAA members and With the change in administration—from
70 percent were non-COPAA members. Of the President Obama to President Trump—and
72 participants in the regional forum, 38 percent the start of a new Congress, we have closely
were parents or students of color. monitored and reviewed activity of the
The third phase of data collection occurred Administration and 115th Congress through May
during an online forum at COPAA’s national 2017 and the impact of such activities on ESSA
conference. In total, 58 people participated in the and on students with disabilities.
national forum. Twenty-three percent were people
of color. An additional 23 people responded Limitations
through an email address.34 In addition to the In this study, NCD recruited participants
72 participants at the regional forums, 81 people through COPAA’s member network, local
responded in the national forum and the email parent networks, and state and national
responses. partners in the regional focus group locations.
With this information, we describe The interviewees were based purposefully on
experiences for these populations of students; location and position. Therefore, the qualitative
identify any potential gaps in services, policy, and data identified in the report should not be viewed
research; and make recommendations to improve as generalizable, but rather as perspectives of
opportunities for students with disabilities. individuals within those positions. Additionally,
In all settings, NCD used a semistructured implementation of the law does not begin
question protocol to gain perspectives about until the 2017–2018 school year. As such, the
parent and child experiences with IDEA. Data stakeholder perspectives are prospective in
was recorded and transcribed to identify themes nature and additional studies will be needed to
among the experiences (see appendix for assess the impact of ESSA on students with
protocols). disabilities after implementation.
18 National Council on DisabilityChapter 1: ESSA Provisions Specific to Students
with Disabilities35
T
he goal of ESSA “is to provide all children Additionally, Title I of ESSA permits states
significant opportunity to receive a fair, to develop AAS for students with the most
equitable, and high-quality education, significant cognitive disabilities. AAS must be
and to close educational achievement gaps.”36 aligned to the state’s challenging academic
As noted earlier, ESSA seeks to accomplish this content state standards, promote access
goal by requiring states to establish standards, to the general education curriculum, and
assessments, and accountability systems. ESSA reflect professional judgment of the highest
is designed to support all students, including possible standards achievable. Importantly,
students with disabilities, in expanding educational AAS must align to ensure students are “on
opportunity and improving track to pursue”
students’ outcomes. postsecondary
AAS must align to ensure
IDEA focuses specifically education or
on ensuring eligible students are “on track to pursue” competitive integrated
students with disabilities postsecondary education or employment.40 The law
are provided individualized competitive integrated employment. does not permit states
services and supports to to develop any other
enable them “to be involved in and make progress alternate or modified achievement standards for
in the general education curriculum.”37 students with disabilities other than AAS.41
With the implementation of more rigorous
Standards standards in recent years, one state administrator
Title I of ESSA requires states to set challenging noted, “These days you are seeing real
academic standards in reading, math, and instruction in the standards. Teachers [are]
science that must apply to all public schools empowered.” She added, that as a result, they
and all “public school children.”38 State- are “providing more support on grade-level
designed K–12 standards must align with higher instruction . . . [and] access to more inclusive
education institution entrance requirements settings for our students.”42
without the need for remediation and relevant
state career and technical education standards. Assessments
The law also requires that states adopt language States are required to implement annual
proficiency standards for English learners (EL).39 assessments in reading and math for each grade
Every Student Succeeds Act and Students with Disabilities 19from third through eighth grades and once in education curriculum,47 Congress, in ESSA,
high school.43 States must also test students required that IEP teams have more transparent
in science once in the following grade spans: conversations about assessment decisions.
third through fifth grades, sixth through ninth Specifically, through the IEP process, parents
grades, and tenth through twelfth grades. States must be informed that their child’s performance
must assure that students with disabilities— will be measured against alternate achievement
as defined by IDEA or Section 504—taking standards. They must discuss how the decision
the general assessment must be provided to take the AA-AAS may affect the child
appropriate accommodations, which may include completing requirements for a regular diploma.
the use of assistive technology, “necessary to The state must also ensure that the decision to
measure the academic achievement.” State- assess a student on AA-AAS does not preclude
designed assessments should also be developed, him or her from attempting to complete a regular
incorporating principles of universal design for high school diploma.48
learning (UDL) “to the extent practicable.”44 The law requires states to adhere to a
The law requires the results of students 1 percent student participation cap at the state
to be reported by level for each required
student subgroups States must continue to test and subject.49 This new
(disaggregated) at the statutory cap exceeds
report disaggregated assessment
state, district, and the previous 1% rule
school levels including
data on no less than 95 percent of under NCLB, which
a subgroup for students all students as well as 95 percent capped the counting
with disabilities. States of students in each student of proficient scores.
must continue to test subgroup . . . Under the new cap,
and report disaggregated states must ensure that
assessment data on no less than 95 percent of they do not test students on the AA-AAS more
all students as well as 95 percent of students than 1 percent of all tested students by subject.
in each student subgroup: low-income, race/ Districts do have flexibility if they need to exceed
ethnicity, disability, EL, and any other subgroup the 1 percent participation cap, and states are
established by the state.45 prohibited from applying a cap at the local level.
States may request a waiver from the
Alternate Assessment Aligned with
Department of Education on the 1% participation
Alternate Achievement Standards
cap. In the final assessment regulations, the
(AA-AAS)
Department added clarity on how states may
States may continue to use a statewide AA-AAS
request waivers.50 Specifically, waiver requests
for students with the most significant cognitive
must be submitted 90 days prior to the start of
disabilities.46 A student’s IEP team makes the
the testing window for the subject area in which
determination for inclusion in AA-AAS.
the cap is expected to be exceeded. With ESSA’s
With past implementation raising concerns
implementation timeline, such requests could
that students assessed on AA-AAS increased
be submitted as early as December 2017. State
segregation and prevented access to the general
20 National Council on Disabilitywaivers are reserved for exceptional situations, In utilizing the AA-AAS for students with the
in which states need to assess additional most significant cognitive disabilities, ESSA
students with the most significant cognitive requires the state to meet several conditions in
disabilities with alternate assessments. Waiver addition to those outlined above.52 Specifically,
requests must provide transparent state-level the state must promote involvement and
information on the number and percentage progress in the general curriculum for students
of students, including by subgroup, taking with the most significant disabilities consistent
the alternate assessment. Clarifying language with IDEA. Through the state plan, the state
provided by the Department of Education states: must describe that general and special
educators know how to administer the AA-AAS
Recognizing that a state should do
and how to use appropriately accommodations
everything it can to ensure students are
for students with disabilities on all assessments.
being held to the appropriate standards and
They also must describe how the alternate
that only students with the most significant
assessments incorporate principles of UDL.
cognitive disabilities should be taking the
Finally, to increase the number of students with
alternate assessment
the most significant
aligned with alternate
[M]ost states will need to cognitive disabilities
achievement
participating in and
standards, and to specifically address the overuse of
assessed against the
ensure that it is the AA-AAS and provide technical general assessment for
making substantial
support to districts and IEP teams. the grade in which he
progress toward
or she is enrolled, the
reducing the percentage to fewer than
state must “develop, disseminate information
1 percent, the regulations require a state
on, and promote the use of appropriate
seeking a waiver to have a plan of action to
accommodations.”53
meet the 1 percent limit in the future.51
Stakeholders identified challenges with
Data from 2014–2015 alternate assessments the IEP teams making the decisions on
based on AAS suggests that more than half of assessment in their experience with previous
the states will need to address the 1% cap on implementation of the AA-AAS under NCLB.
participation because in that year they exceeded Parents noted the conversation frequently
the 1% cap. The wide range of participation rates occurs at a young age and ties to decisions on
in the alternate assessment (from less than 0.6% placement. One parent advocate commented,
to more than 2.0%) indicates that some states “Where it becomes contentious is the general
have successfully assessed less than 1% of education [discussion], and deciding the
students on AA-AAS. However, most states will placement of the child, the goals and [whether
need to specifically address the overuse of the they take] the alternate assessment. Schools
AA-AAS and provide technical support to districts are bringing it up to parents in kindergarten,
and IEP teams. first grade, second, third grade. And then, when
the parents try and get the child off of that
Every Student Succeeds Act and Students with Disabilities 21[it’s difficult].”54 Another parent said, “the with disabilities.58 The final regulations make
options were always presented as binary— clear that students with disabilities must be
either life skills class at the expense of permitted to access accommodations on any
academics [and the regular classroom] or life locally-selected assessment in accordance with
skills get pushed aside for academics. Why can’t the state accommodations guidelines under
the child have both?”55 IDEA. The regulations further stipulate that it
With the new requirement for IEP teams is the additional responsibility of the state to
to discuss the options for assessment(s) as ensure that a student who requires and uses
it relates to the child’s access to the general accommodations is not denied any benefit
curriculum and to a regular diploma, both schools afforded to a student who does not need such an
and families will need training and information. accommodation. Finally, a state cannot approve
One local administrator acknowledged the an assessment that offers some students a
benefits of the new statutory language around benefit, such as a college reportable score, that
information during the would not be available to
IEP meetings, “Teachers “[T]he options were always another student taking
[under NCLB] were the same assessment
presented as binary—either
challenged by how to with accommodations.59
manage and navigate
life skills class at the expense States may develop
the conversation with of academics [and the regular computer-adaptive tests,
the parents when the classroom] or life skills get pushed which allows for above
decision for alternative aside for academics. Why can’t the and below grade-level
assessments may take test items; however, for
child have both?”
the child off track [for the purposes of ESSA,
a regular diploma]. The new statutory language such assessments must measure and report test
can help. [It gives] more power to the team and results against grade-level academic standards.60
family.”56 States may also allow districts to develop
innovative assessments under the Innovative
Locally-Selected Assessment and Assessment Pilot, which applies to no more than
Computer Adaptive Assessments seven grantees approved by the Secretary of
For the high school assessment, ESSA Education.
includes a new provision permitting districts
to use a nationally recognized high school State Accountability System
assessment, approved by the state, in lieu of Under ESSA, states are required to develop
a state high school assessment.57 To ensure their own statewide accountability system and
these tests are truly “nationally recognized,” use the system to make annual accountability
the regulations clarify they must be given in determinations.61 States must develop a single
multiple states, be recognized by institutions of accountability system based on standards and
higher education, and provide the same benefits establish “long-term goals” for proficiency
to all students—including EL and students in reading and math and graduation rates as
22 National Council on Disabilitywell as state-determined “interim measures major racial and ethnic groups, and students
of progress.” with disabilities. States may continue to set
their own minimum group size or N size for
subgroup disaggregation and accountability
purposes with the caveat that such N sizes are
Measuring School Performance
statistically reliable.
States must use the following indicators
to measure school performance within the Fifth Indicator or Additional Indicator
state accountability system: The indicator of school quality and student
1. Academic achievement as measured by success, frequently called the fifth indicator or
the annual statewide assessments in additional indicator, must be comparable, valid,
English and mathematics reliable, and allow for meaningful differentiation
across schools.63 This indicator can be a
2. A measure of student growth or other
measure related to student engagement,
academic indicator for elementary schools
educator engagement, advanced coursework,
3. For high schools, the four-year adjusted
postsecondary readiness, school climate,
cohort graduation rate and may include
and safety. The selected indicators must be
an extended-year adjusted cohort
statewide and the same for all subgroups of
graduation rate
students, but the indicator may be different
4. Progress in achieving English language by grade span (e.g., high school versus
proficiency for EL elementary school). Since the passage of
5. At least one “indicator of school quality ESSA, as states develop draft consolidated
and student success” implementation plans, representatives from the
business, civil rights, and disability communities
have advocated that states consider these
five questions to guide decisions on this
In determining the performance of schools, new indicator:
ESSA requires that each of the first four
indicators have substantial weight in the system 1. Is the indicator focused on students?
and, taken together, the first four indicators must
2. Can the indicator be measured by the
have “much greater weight” than the indicators
student group?
selected for the “additional” indicator in the
accountability system calculation. The Secretary 3. Is the indicator aligned with readiness for
of Education is prohibited from prescribing any post–high school success?
indicators or the weights for any of the indicators
4. Does the indicator differentiate between
in the system.62
schools?
The performance of students must be
described in the aggregate and disaggregated 5. Can the indicator hold the weight of
for low-income students, EL, students from accountability?64
Every Student Succeeds Act and Students with Disabilities 23School Improvement as a consistently underperforming school in
Within the accountability system, the indicators the state. With this new policy and limited
are used to identify, differentiate, and report on all opportunities for clarity from the Department of
public schools. At least every three years, states Education, the provision could be implemented
must identify schools for comprehensive support in as many ways. As states submit their plans,
and improvement. The schools identified must it will be critical to analyze their proposals for
include the following: determining underperforming subgroups and
the requirements of districts to oversee support
■■ The lowest-performing 5 percent of schools and intervention in identified schools.
receiving Title I funds in the state Reflecting on the shift in ESSA back toward
■■ All high schools with graduation rates below the states, Dr. Thomas Hehir, former director
67 percent of the Office of Special
Education programs,
■■ Schools where As states submit their plans, it will
noted, “We still have
a subgroup is be critical to analyze their proposals guardrails in inclusion
consistently
for determining underperforming in accountability
underperforming
subgroups and the requirements systems. . . . It wasn’t
the same as the
of districts to oversee support and that long-ago kids
lowest 5 percent of
weren’t even tested.
schools and does intervention in identified schools.
The downside is how
not improve after a
they will play out in 50 different accountability
state-determined number of years
systems because so much discretion is at the
The state is required to determine the state-level.”65
number of years for intervention and the exit
criteria. Once identified, the district determines State Diploma Options and Students
the school’s improvement plan. The state must with Disabilities
review school progress after four years. ESSA defines both a regular high school diploma
In addition to the identification of the schools and an alternate diploma. While the definition
for comprehensive support and improvement, for a regular high school diploma is not new,66
the district must the definition of an
identify and oversee alternate diploma is
targeted support and
While the definition for a regular new to the law. The
improvement in any high school diploma is not new, the definition gives states
school when one or definition of an alternate diploma is the option to create a
more subgroup is new to the law. diploma for students
underperforming. In who cannot meet the
this case and for these schools, the district requirements of a regular diploma. The purpose
determines when intervention begins and of defining the alternate diploma was to ensure
ends except if the school is then identified that the requirements are still aligned to the state
24 National Council on Disabilitystandards and to the requirements for a regular
diploma. States have asked for a way to count
students with the most significant cognitive
disabilities as graduates and this provides one
pathway for states to do so.
Because students with significant cognitive
disabilities typically receive IDEA services
through age 21 (or beyond if allowed by
state law), ESSA stipulates that a student
must receive the alternate diploma within
the time period that a student is eligible to
receive services under IDEA. Importantly, a
general equivalency diploma, certificate of
completion, certificate of attendance, or similar
lesser credential cannot count as an alternate
diploma.67
While it is too early to know which states68
will develop an alternate diploma that meets
the requirements of ESSA, one stakeholder
said, “States are still making sense of the new
policy and there seems to be interest. There
are some positives to developing the alternate
[diploma] such as: the opportunity to count Disciplinary Practices, Including the
students positively in graduation [rates]; and, Use of Seclusion and Restraint
it provides an opportunity for states [to work]
Within the state plans, ESSA also requires
with stakeholders to develop a meaningful
states to include a description of how they will
diploma.”69
support districts “to improve school conditions
Parents are also clearly seeking more
for student learning, including through reducing—
information and better options for their children
(i) incidences of bullying and harassment;
with regard to diplomas and diploma options.
(ii) the overuse of discipline practices that
One parent said, “in our state, a special
remove students from the classroom; and (iii)
education eligible child usually graduates
the use of aversive behavioral interventions
with the lowest level diploma. This inhibits
that compromise student health and safety.”72
them towards attending a university after
The ESSA Conference Report clarifies that the
graduation.”70 Another family member noted
term aversive behavioral interventions means
concerns about her brother being educated
seclusion and restraint.73
in “an alternative curriculum,” adding that
Parents from the forums emphasized
he was then only eligible for a certificate of
concerns related to discipline in schools. One
completion.71
Every Student Succeeds Act and Students with Disabilities 25use of seclusion and restraint and exclusionary
Disciplinary Practices discipline.78
In 2013–2014, 70,000 students with Professional Learning and Curricular
disabilities were subjected to seclusion and Supports
restraint, and students with disabilities had ESSA’s Title II (Preparing, Training, and Recruiting
more than double the suspension rate of High-Quality Teachers, Principals, or Other School
students without disabilities. Leaders) provisions eliminate the “highly qualified
teacher” requirements under NCLB and replaced
it with the requirement that states assure
teacher certification or licensing requirements
parent described that after multiple suspensions are aligned with the state’s challenging
and a “lack of effort by the school to find academic standards.79 ESSA made conforming
solutions,” they ultimately felt their child was amendments to IDEA regarding teachers
“type cast” as a “bad student” and removed and assures that special education teachers
him from school.74 Another parent said her son must obtain full state certification as a special
was frequently removed from the class for education teacher; have not had special education
disciplinary reasons adding he was “missing a certification or licensure requirements waived on
lot of instructional time, [and] as a result he fell an emergency, temporary, or provisional basis;
way behind.”75 In 2013–2014, 70,000 students and hold at least a bachelor’s degree.80 ESSA also
with disabilities were subjected to seclusion and eliminated the ESEA waiver requirement that
restraint, and students with disabilities had more states implement teacher evaluation systems.
than double the suspension rate of students States may use Title II funds to implement such a
without disabilities.76 Previous NCD reports system if they choose.
have recommended Congress pass legislation ESSA’s Title II, Part A (Teacher and Principal
to establish uniform standards on seclusion and Training and Recruiting Fund) and Title IV, Part
restraint in schools to “ensure the safety and A (Student Support and Academic Enrichment
dignity of every student.”77 Grants) are now block grants to states and
These new provisions in ESSA state plan districts. The allowable uses of funds are
are critical in ensuring states address these flexible and interchangeable between these
discrepancies. Yet, in early analyses of ESSA two programs as long as the state and district
state plans, it appears that states are merely can show how activities are aligned with state
restating the statutory language rather than standards, the growth or improvements for
describing what they will do to support districts teachers and principals, and how data will be
as required by the law. In some ESSA plans, used to improve the activities. In the case
states describe implementing Positive Behavior of a school district, they must also show
Interventions and Supports (PBIS), which may be the state how they will prioritize funds to
beneficial. However, the plans do not ensure that provide support to personnel in the state’s
such implementation targets and decreases the lowest performing schools.81 Because of the
26 National Council on Disabilityflexibility offered through federal law and the planning model], we can take the requirements
requirements to provide comprehensive and of ESSA and IDEA and merge them. We have
targeted improvement support to identified what we refer to as the Integrated Accountability
schools, states and districts could invest in System whereby districts submit data
training to support Multi-Tiered Systems of electronically and we can do a data analysis of
Support (MTSS) including PBIS, UDL, and other all requirements to help identify where to put
evidence-based programs that support the the professional learning resources and identify
learning of all students, including students with which districts and schools may need corrective
disabilities. action. We use data to make decisions about
In explaining how using data to support the where our resources are going to go to support
targeting and allocation of resources works to every student having improved outcomes.”
both the state’s and the students’ advantage, ESSA was designed with this flexibility and
one state administrator said, “[Because of our accountability at the state level in mind.
Every Student Succeeds Act and Students with Disabilities 2728 National Council on Disability
Chapter 2: Other Policy Considerations
Federal Funding of ESSA and School of students they enroll and the characteristics of
Choice those students (e.g., EL, low-income, or students
O
with disabilities). If a student leaves one school
n May 23, 2017, the President
and moves to another, the receiving school is
released the fiscal year 2018 (FY2018)
given the money designated for the student. In
budget, which provides $59 billion in
comparison, the current funding model used by
discretionary funding for the Department of
most states-to-school districts provides funds
Education. This represents $9 billion in cuts
based on staffing ratios and through specific
or a 13 percent reduction below the FY2017
funded programs. Under the predominant
level.82 In the President’s FY2018 budget, the
model, when a student changes schools, all or
state Title I formula for ESSA is reduced by
most of the funding
$1 billion; however, the
stays with the local or
Administration has added Under the pilot, districts would
original public school.
an additional $1 billion
provide funding to schools based on The FY2018 budget also
to a specific program in
Title I—the Furthering
the number of students they enroll includes $250 million
and the characteristics of those for competitive awards
Options for Children to
through the Education
Unlock Success (FOCUS) students . . .
Innovation and Research
program, which would
(EIR) program to provide scholarships for
support the establishment and expansion of
students from low-income families to attend the
systems that differentiate funding based on
private school of their parents’ choice.
student characteristics and allow the funds a
student generates to follow the student to a
school of choice.83 The funding and FOCUS Charter Schools
program builds on a new pilot program included ESSA currently authorizes public school choice
in ESSA that allows up to 50 school districts to through Title IV, Part C (Expanding Opportunity
adopt a weighted student funding formula that Through Quality Charter Schools).85 In the
would combine federal, state, and local dollars reauthorization, the charter school program
into a single funding stream tied to individual was amended to address concerns that charter
students. Under the pilot, districts would
84
schools are under enrolling and underserving
provide funding to schools based on the number students with disabilities.86 Specifically, the
Every Student Succeeds Act and Students with Disabilities 29You can also read
