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OPPOSE NYSED Waiver Renewal Plan to use Out of Level Testing for SWD!

Thursday, January 23, 2014   (0 Comments)
Posted by: Denise Marshall


Submit your comment to the New York State Department Education (NYSED) by January 27, 2014!

ISSUE: NYSED Proposes to Lower Standards and Expectations for Students with Disabilities by Requesting Out of Level Testing under ESEA Flexibility Waiver Renewal

Comments are due to NYSED on or before January 27, 2014.


The U.S. Department of Education (ED) is allowing states with ESEA Flexibility waivers to apply for one-year renewals. NYSED has an ESEA Flexibility waiver and is applying for a renewal. In preparation to submit its request, NYSED is seeking approval from the NY Board of Regents to include in the state’s proposal a request to"allow districts to administer the State assessments [to students with disabilities] at the students’ instructional grade levels as opposed to their chronological grade levels. The NYSED has written that"out of level” is intended for students with "significant cognitive disabilities that are ineligible for the states alternate assessment”. Note: NYSED never applied to implement the 2% Regulation and therefore never utilized a modified assessment Also, NYSED has aligned with the Partnership for Assessment of Readiness for College and Careers (PARCC) for the general assessment and the NYSED alternate assessment based on alternate academic achievement standards is being developed by the National Center and State Collaborative Project.

COPAAopposes the proposal– to give students with disabilities out of level tests – for the following reasons:

  • ESEA flexibility states were required to assure USED that they would:

o Include students with disabilities in state assessments (20 U.S.C. § 6311(b)(3)(A), (C)(v)); and,

o Develop and administer alternate assessments based on grade-level academic achievement standards or alternate assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities that are consistent with 34 C.F.R. § 200.6(a)(2) and are aligned with the State’s college- and career-ready standards. ( ESEA Flexibility Request form, September 23, 2011)

  • Section 504 of the Rehabilitation Act and its implementing regulations also protect a student’s right to participate in state assessments and prohibits discrimination and the denial of comparable aids, benefits, and services (34 C.F.R. §104.4(b)(1)(i)-(iii)). In order for aids, benefits, and services to be "equally effective,” they must provide "an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement” (34 C.F.R. § 104.4(b)(2)).

  • This proposal INCORRECTLY promotes that most students with disabilities can’t learn or achieve when most students with disabilities are able to learn and achieve, just like all other students, when provided appropriate services and supports.

  • The proposal promotes abuse and overuse of lowered standards by allowing any student with a disability to be tested in out of level tests.

Too many parents and students are not told, or may not fully understand, that when a student with a disability takes a different assessment than their grade level peers, there is no way to compare their performance, no way to accurately measure achievement gaps, and no way to know how well they have grasped the grade-level content. They are no longer on track for a high school diploma.

ACT NOW: It is essential that COPAA members and their organizations submit comments to ensure that NYSED understands that there is local opposition to its proposal.

Suggested comments could include:

"I oppose NYSED’s proposal – to give students with disabilities out of level tests – because it lowers expectations and standards for students with disabilities. NYSED should not propose and support policies that are in direct conflict with Federal law, including the Elementary and Secondary Education Act (ESEA) which requires states, districts and schools to include students in state assessments and provide an alternate assessment on alternate standards for students with the most significant cognitive disabilities. Also, Section 504 of the Rehabilitation Act protects a student’s right to participate in state assessments and prohibits discrimination and the denial of comparable aids, benefits, and services. NYSED should seek to improve the instructional support and services and access to accommodations for students with disabilities rather than subject these students to discriminatory practices that will reduce the likelihood of graduating from high school with a regular diploma. Parents do not want lowered expectations for students!

COPAA submitted comments here

Our Kids Count blog with background on the issue is at http://www.advocacyinstitute.org/blog/?p=377

The NYSED page is at http://www.p12.nysed.gov/accountability/ESEAFlexibilityRenewal.html

The Advocacy Institute submitted comments are athttp://tinyurl.com/kf4coej

A Huff Post article on the issue is athttp://www.huffingtonpost.com/2014/01/17/special-education-testing_n_4613727.html?1389961892

Comments are due by Jan 27th. Comments should be sent to the following emails:

To submit a comment regarding the renewal application or one or more of the amendments, please send them by email to: eseasupport@mail.nysed.gov.  (be sure to put Comments to Elementary and Secondary Education Act (ESEA) Waiver Renewal Amendment in the subject line)

Please also copy the Board of Regents:

RegentTisch@mail.nysed.gov;RegentBottar@mail.nysed.gov;RegentBennett@mail.nysed.gov;RegentDawson@mail.nysed.gov;RegentChapey@mail.nysed.gov;RegentPhillips@mail.nysed.gov;RegentTallon@mail.nysed.gov;RegentTilles@mail.nysed.gov; RegentBendit@mail.nysed.gov; RegentYoung@mail.nysed.gov; RegentCea@mail.nysed.gov; RegentNorwood@mail.nysed.gov; RegentJackson@mail.nysed.gov; RegentCashin@mail.nysed.gov; RegentCottrell@mail.nysed.gov; RegentBrown@mail.nysed.gov;


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