A notice in the Federal Register seldom elicits more than a yawn from anyone but a few affected bureaucrats and the special interests organized to hound them. But the Department of Education's regulations for educating and testing disabled students under NCLB deserve much wider attention. They embody a subtle but significant step toward reforming special education and a further indication of the Department's commitment to the improved education of every child. [See http://www.ed.gov/news/pressreleases/2003/12/12092003.html.]
The specific question addressed in these new regulations is, "How should states and districts educate and assess the most cognitively disabled students within the federal government's accountability framework?" But answering that question reveals much about one's understanding of the responsibility of schools toward disabled students as well as one's view of content standards, achievement standards, and assessments. Considering the ossified politics of special education and the mounting backlash against NCLB, the implications of any decision made by the Department in this domain would have been significant.
Start by recalling special education's place within NCLB. During the bill's consideration, President Bush and congressional leaders focused public attention on the racial achievement gap, yet the academic achievement of disabled students became an equally important component in the law's final language. In particular, when states and districts disaggregate achievement results, both racial and disability categories must be reported, and the consequences for failing to make progress on either front are identical.
In terms of principle, these requirements plainly demonstrate that the law intends to leave NO child behind. And as education policy, they make more big assertions. First, students with IEPs can also become proficient in the essential skills that schools are designed to impart, like reading and math. Second, schools, districts, and states must fully commit to educating, assessing, and reporting on the academic progress of their disabled pupils.
Thanks to the NCLB-generated data that's now flowing in, we know more about the "disability gap," one of the most underreported stories in education today. On average, disabled students lag farther behind their non-disabled classmates than African American and Hispanic students lag behind their white classmates. For example:
" In Maryland, 66 percent of 8th graders in regular education are proficient or advanced in reading, while only 20 percent of special education students reach the same level.
" In Connecticut, 41 percent of 8th grade special education students are "below basic" in writing, but only 6 percent of regular education students fall in the same category.
" In Wisconsin, 78 percent of 10th graders in regular education are at or above proficient in reading. Only 27 percent of special education students reach these same levels.
" In New Jersey, 77 percent of 11th graders in general education are proficient or advanced in math, but only 26 percent of special education students achieve the same results.
As states began to calculate "Adequate Yearly Progress," they noticed that the disability gap was causing even some of their "best" suburban schools to miss the mark. Unfortunately, rather than redoubling their efforts to deliver a better education to a disadvantaged class of students, many state and local education leaders complained about the NCLB requirements themselves, either disgracefully arguing that the gap was evidence of NCLB's heartlessness or cynically suggesting that lawmakers were naive to have such high expectations for children with disabilities. Many have called for the special education category to be removed from AYP determinations and even for abolishing assessments of special needs students.
As this opposition strengthened, the Department of Education was facing a related and critically important policy question: how to address the concern that a small percentage of special education students - mainly those with the most profound disabilities - in truth cannot reasonably be expected to meet grade-level proficiency standards or be tested in the same way as their peers. How to balance these contending considerations? Would the Department allow states to use lower standards for all students with IEPs? Would it allow states to exempt from testing as many special-needs students as they chose? Would it take steps toward removing special education from AYP calculations altogether?
Thankfully, no. The Department held fast and found a solution that recognizes the realities of special education while remaining faithful to standards, assessments, and universal accountability.
The new rules allow states to use alternative academic standards and assessments when determining the proficiency of students with the most significant cognitive disabilities. A cap is set, though, so only one percent of all students (about 10 percent of disabled students) may have their scores on alternate standards be counted toward the state's AYP requirements. In plain English, this means that 99 percent of students in a grade - regardless of race, gender, SES, or disability - must be taught a curriculum aligned with the state's rigorous content standards and assessed accordingly. The most cognitively disabled students - but not more than 1 percent of the students in a grade - may be held to a different academic standard, though they, too, must be taught an appropriate, challenging curriculum and be assessed on their progress in mastering it.
Three important lessons should be taken away from this episode. First, these regulations represent another battle won against the "soft bigotry of low expectations." All children can learn, all children should be challenged, all schools must take seriously their responsibility to educate all of their students.
Second, the disability gap is real, and it is serious. According to the federal government, only 10 percent of disabled students should be held to a standard different than non-disabled students. So why is there a 30 percent, 40 percent, or 50 percent gap in some districts and states between the achievement of disabled and non-disabled students?
Third, and most importantly, IDEA itself has allowed the disability gap to widen. IDEA has been the patrolman monitoring the education of disabled students for nearly 30 years. While it has done a fine job of guaranteeing equal access to public schooling, it has not resulted in equal education for students with disabilities. One may deny that IDEA's provisions have contributed to the disability gap, but it is irrefutable that this gap has continued on IDEA's watch. Isn't it time to remedy that?
In the months to come, as Congress completes work on IDEA's reauthorization, one question should keep members awake at night: "How can the federal government enable states, districts, schools, and teachers to overcome the real education problem faced by disabled youngsters - the disability achievement gap - instead of focusing on rules and procedures?"
Here's one idea: allow a school, district, or state to sign a "charter" with the U.S. Department of Education promising to reduce the disability gap in exchange for flexibility over IDEA rules.
Too controversial, you say? Just put it in the federal register . . . no one will notice.
Andy Smarick is director of the Charter School Leadership Council and a former Congressional aide.