IDEA Series Every Student Succeeds Act and Students with Disabilities National Council on Disability

IDEA Series Every Student Succeeds Act and Students with Disabilities National Council on Disability
IDEA Series
Every Student Succeeds Act and
   Students with Disabilities

 National Council on Disability
        February 7, 2018
IDEA Series Every Student Succeeds Act and Students with Disabilities National Council on Disability
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 ( or contact NCD to request an alternative format using the following
information: 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.
IDEA Series Every Student Succeeds Act and Students with Disabilities National Council on Disability
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.


Clyde E. Terry

(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   ■
2   National Council on Disability
National Council on Disability Members and Staff

                  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

                  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   3
4   National Council on Disability

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

                                        Every Student Succeeds Act and Students with Disabilities    5
6   National Council on Disability

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                                                                  7
Chapter 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 Disability
Executive Summary

  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

10   National Council on Disability
List 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   11
The 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 Disability

         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          13
performance 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 Disability
policies 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        15
ensures 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
                                                          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
                                                          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
                                                          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 Disability
goal 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                 17
of 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 Disability
Chapter 1: ESSA Provisions Specific to Students
with Disabilities35

       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         19
from 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
                                                         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 Disability
waivers 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
                                                                            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
  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 Disability
well 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
    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          23
School 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
                                     for determining underperforming                    in accountability
                                     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 Disability
standards 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
   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
                                                     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

                                        Every Student Succeeds Act and Students with Disabilities        25
use 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 Disability
flexibility 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        27
28   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

                                                      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
                                                      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         29
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