3/15/05 -- Texas has agreed to let school districts exempt many more special education students than allowed under federal rules on testing under the No Child Left Behind Act.
The issue is expected to lead to a showdown between Texas Education Commissioner Shirley Neeley and U.S. Education Secretary Margaret Spellings, who helped craft the Texas assessment, as well as NCLB.
The U.S. Education Department has not formally responded to Texas’ action yet. Possible sanctions include withholding federal funds or imposing a fine.
Under the federal regulations issued by the U.S. Education Department to implement NCLB, schools may offer alternate assessments to as many students with disabilities as require them. However, the total number of scores that can be used to meet the adequately yearly progress (AYP) target cannot exceed more than 1 percent of the total number of students being assessed.
In 2004, only 86 of the 1,227 school districts in Texas (7 percent) failed to make AYP. But the number would have been much higher if the Texas Education Agency (TEA) hadn’t granted appeals from 431 districts. The state approved 381 of those appeals (88 percent) based on the 1 percent cap.
Of the 1,061 appeals approved for individual schools, 81 percent were granted based on the 1 percent cap.
In Houston, for example, the Houston Chronicle reports that 26 schools failed to make AYP, but the number would have risen to 77 if TEA hadn’t allowed appeals based on the 1 percent rule.
The state sought a waiver of the 1 percent rule last April, but the U.S. Education Department denied the request.
“We completely agree with the goals of NCLB,” says TEA spokesperson Debbie Ratcliffe. “We didn’t do this to be defiant. We think we have the authority to do this under the law.”
“The way we read the law, we think the [U.S. Education Department’s] ability to withhold federal funds is based solely on whether the AYP list was issued by the deadline,” Ratcliffe says. “States have control of the appeals process. . . . The 1 percent cap is not in the law; it’s in the regulations.”
According to Ratcliffe, when students took the tests last year, the 1 percent rule hadn’t been issued. “So we advised districts to do whatever is best for the students.”
Districts followed state guidelines and also had to comply with the Individuals with Disabilities Education Act (IDEA), which requires states to create alternative assessments. Under IDEA, students with disabilities have individualized education programs that often call for alternative tests.
“It’s a fairness issue,” Ratcliffe says. “It’s not fair to tell students to take an alternative test, then require them to take a test they aren’t prepared for and call them failures.”
Marty De Leon, legislative counsel for the Texas Association of School Boards, agrees that “counting these children as failures is unfair” and “sends the wrong message.” The 1 percent cap should be expanded, he says, and “there needs to be more flexibility.”
Ratcliffe also says it’s unfair that the rule on the 1 percent cap took effect immediately, while many other provisions of NCLB, such as those on highly qualified teachers, are being phased in over several years.