Join Paul T. O’Neill, an attorney who focuses his practice and scholarship on education law. Currently he is Senior Counsel & Senior Vice President of Edison Schools, headquartered in New York City. Mr. O’Neill advises states, districts, and schools as well as not-for-profit and for-profit organizations on a wide range of education and special education law issues.
Our topic today is high-stakes testing and its impact on students with learning disabilities.
Read more about Paul T. O'Neill, Esq.
Let's begin the discussion.
Question from Deanna Stecker, Early Literacy Specialist:
What distinguishes high-stakes tests from other kinds of test?
High stakes tests are tests with consequences. These consequences come in two flavors -- personal accountability for indivudual students and systemic accountabilty for schools and districts. State graduation exams - also called exit exams -- are an example of assessments that carry personal accountability. In many states, when a student fails the exit exam (and any retests), he or she is denied a diploma. The No Child Left Behind Act (NCLB), the recent reauthorization of the Elementary and Secondary Education Act, the country's main education law, calls for the other kind of accountability -- it holds states and districts accountable for poor student performance, but does not require states to impose personal accountability on students. It does not forbid it either. In order to comply with NCLB, each state has to test students in certain subjects and certain grades and states have broad discretion over what sort of testing they impose. When I use the term "high stakes testing" I usually am referring to tests that carry personal consequences for students, but you should be aware that it can sometimes refer to systemic accountability without a personal element. Other tests -- those with no consequences attached -- are not high stakes tests.
Question from Dell F. MacGregor, parent of 19 year old son, Atlanta, Georgia:
My son ( professionally diagnosed with ADD, SLD, SID, but also with a normal IQ) was to have gone off to college this past September. He had completed, with passing grades, all of the required high school requirements of his local school district. HOWEVER, he had not been able to pass one of the five high-stakes graduation tests (GHSGT) required by the State of Georgia in order to receive a High School Diploma. The sixth time he took the test, after spending the summer in a remediation class, he again did not pass. He was denied the right to go to college because of this test. We applied twice and have been DENIED a waiver to this high-stakes test from the State of Georgia. They tell him to continue to double his efforts and try again. Is this what NCLB intended for my son - to leave him on the doorsteps of the high school?
The situation you describe is in many ways representative of the dangers of high stakes testing programs keyed to a single performance measure. I am sure the state would argue that it cannot raise standards without enforcing them, and they have the right to do so, but the result for individual children often seems in equitable. I admit that this issue has a personal side for me -- I struggled in school with ADHD and math learning disabilites. There was no exit exam in my state when I graduated high school, but if there had been I sincerely doubt that I would have been able to receive a diploma.
Question from Karie Ricketson:
How can they legally require this kind of testing?
State constitutions grant a right to an education (there is, by the way, no federal right to an education) and state laws determine the sorts of testing that apply there as well as the consequences for students who take them. States cannot ignore federal requirements, though -- while there is no federal right to an education, there are federal laws that impact education and court opinions that set precedent for applying those laws. The IDEA, Section 504 and the ADA all fall into that category. So to the extent that a state testing program either conflicts with a requirement of IDEA for example -- this could happen where a state refuses to allow a student with LD any appropriate accommodations on a state test -- a court could determine that the state rule is unlawful and would have to change.
Candace Cortiella (Moderator):
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Question from Julie Rester, Mother, Mississippi:
Please clarify: Is it an option for a parent to request that their child be excluded from a stanardized test?
Parents cannot on their own determine how their child with disabilities participates in standardized testing, because such decisions are made by the IEP team. But the parent has a voice on the IEP team and, if the parent doesnt like the IEP team's determinatin, can call for an impartial hearing on the issue. The IEP team may find that a particular child should be given certain accommodations (extra time, braille test form, etc.) and/or that the child should be given a modified or alternate version of the test. In extreme cases, they may recommend that the child be exempt from the testing altogether. NCLB insists that all students be included in state testing used for NCLB purposes, either by taking a standard test (with accommodations as appropriate) or via an alternante assessment. Parents can always elect to place their child in private school and avoid the public school testing requirements that way.
Question from Denise Thornton, Mother, Stafford, Virginia:
What options do parents have for children who pass all of their classes, yet cannot pass standardized tests which are required by the state for high school graduation?
This question gets at the heart of what many people see as the main problem with high stakes graduation exams -- failure on a single measure of competency can in many cases mean a diploma is withheld. That prospect makes the stakes particularly high.
To avoid an unfair result, many educators and testing experts advocate the use of multiple measures for graduation decisions and other high stakes tests. If a state were to look to multiple measures of student competency, a student's successful academic record could carry a lot of weight, as could performance on other tests and indicators of competency. Some states have adopted these sorts of broad assessments incorporating multiple measures, but most have not. But what options do parents have when a child does well in school but cannot pass the exit exam? This will vary to some extent by local laws but generally speaking most states allow for multiple opportunities to retake the test; many offer non-standard diploma options (such as an IEP diploma for successful completion of IEP goals, or a "certificate of completion," indicating that the high school program was successfully completed). Such alternate credentials may be acceptable to colleges, the military or employers, though. Some states also have an alternate route to a standard diploma for students who qualify. Indiana has a such a route for students with disabilities of particular sorts. You should look into your state's requirements.
Question from Dr. Robbin Alston, School Psychologist:
Why are students with learning disabilities who are already two and three grade levels behind expected to educatonally participate in high stakes grade-level testing? Is it more symbolism than substance?
Advocates for standards-based reform (raising standards in order to ensure that students are not just passing through school but are actually learning) are often interested in making sure that ALL students are held to high standards, and that includes kids with disabilities. Even those who may have fallen behind academically.
There is disagreement within the disabilities community over the wisdom of this sort of inclusion. Some advocates agree that it is essential that we keep the bar set high for kids with LD and other impairments or else we will perpetuate the lower standards and low performance that has been a problem for students with disabilities throughout our history. [Note: There is an interesting article taking this position in a recent issue of the Smart Kids with LD newsletter, which you can access on smartkidswithld.org.] Many other advocates think this is a terrible practice and one likely to lead to even more failure. These advocates push for protecting kids with disabiliiers from unreasonable standards and high stakes. [Note: Fairtest.org is a website that takes this position with regard to kids in general, and not just those with disabilities]. NCLB, which does not impose high stakes for students but does hold schools and districts accountable for student test performance, very much takes the position that holding all kids -- including those with disabilities -- to high standards is essential, so it seems safe to say that is the current position of the federal government.
Question from Diane Kerchner, Ed. Therapist, The Neurodevelopmental Academy:
If a child with LDs is NOT qualified for Spec. Ed. due to not finding a discrepancy, yet he fails to pass the high-stakes testing required for graduation, is there any recourse?
It sounds as though this is a question about a student who's parents believe him to have LD but for whom the evaluations indicated no LD ("no discrepancy"). I apologize if I am misreading the question.
If such a student were to take a graduation exam (often called an exit exam) and fail to pass, the student would have the same recourse as any other student -- retake the exam, obtain whatever other credential the state offers (e.g. certificate of completion). Representatives of the student could always seek to challenge the testing program, saying that it is not a valid test, was not administered properly or that the student did not have an adequate opportunity to prepare for the test -- if any or all of these are believed to be the case. It is important to note that if the same student WERE found to have LD, the result would be much the same, but that student would be allowed appropriate accommodations on the test, and those could make a big difference in his ability to demonstrate what he knows. It is worth noting that the act of failing an exit exam would not in itself be considered evidence of a learning disability. An IEP team must make that determination.
Question from Lisa Walker, Special Education Manager, Arizona Virtual Academy:
With regard to students with low-incidence disabilities, are IEP teams the ones to determine level of proficieny required on high-stakes tests?
Students with low-incidence disabilities, which is to say, students with serious challenges such as those with severe cognitive disabilities, often participate in high stakes exams differently than do other students. Under IDEA, all states are required to utilize alternate assessments where appropriate. Students with low-incidence disabilities often participate through such alternate means, and these assessments are usually tied to lower academic standards than are the standard exams.
But it is the IEP team and not the parents that determines how a student should participate in an exam program. The parents, do, of course, have a voice on the IEP team and can challenge the determination of the team by requesting an impartial hearing. This question specifically mentions the proficiency level, though -- that is, the performance level considered to be adequate. Neither the IEP team nor the parent sets the proficiency level on state-wide standardized tests -- the state itself makes this determination. A state has the discretion to set a different or lower proficiency level for students with low-incidence disabilities.
Question from Jo Ann Behm, RN, State/Federal Ed Policy Consultant:
If federal law is mandating accountability for all students and attempting to compare apples to apples, how is it legal for states to have such wide disparity over what is considered an accommodation vs. a modification for students with disabilities---invalidating test in some states and not others? Requiring students in some states to apply for complex special waivers to graduate if they used certains 'modification' on a high stakes test, whereas other states find these same 'modifications' perfectly acceptable without punishment or other extraneous requirements on part of the student and/or his or her parents in order to still qualify to graduate. Put another way, how is it morally or legally defensible to 'invalidate' a student's test and lower their score for AYP calculations [as routinely done in California] to the lowest possible score/decile/performance level, if a modification [such as a calculator or word processor/spell & grammar check] was used for large scale high stakes graduation test -- even though the modification was perscribed in accordance with IEP or 504 team decision based on individual student need?
You raise an important concern, and one without an easy answer. States have the power to create and administer their own testing programs but cannot step over the line drawn by federal law. To the exent that states have drawn differing lines over what is an acceptable accommodation on an assessment, I think there is the possiblity that federal courts may establish a uniform rule.
Question from Nancy R. Tidwell, Founder & President, National Association for the Education of African American Children with Learning Disabilities:
The movement to hold all schools, teachers and students to high standards of teaching and learning is an admirable one but how do we equally serve the many children in our poorest schools who are not now receiving the high quality instruction needed to pass these tests? Raising standards for all students without providing access to knowledge and skills for all students is simply unacceptable . . . the stakes are much too high.
This is not strictly speaking a legal question, but I do want to comment. Like many people involved with education, you are obviously frustrated with the negative effects of high stakes testing (whatever their benefits). It seems to me essential that we do more than just raise the stakes -- testing alone does not raise standards; we have to make a committment to better prepare all students to meet those higher standards. As stakes and standards rise, opportunities for better and supplemental education have to rise as well. In those areas where educational resources are most limited, the need for such services is obviously greatest. That need may ultimately make this into a legal question, as parents may elect to sue states for a failure to provide an adequate education under state law and NCLB.
Candace Cortiella (Moderator):
To help parents better understand and utilize many provisions in the No Child Left Behind Act (NCLB), the National Center for Learning Disabilities and SchwabLearning teamed up to produce a Parent Guide to NCLB. It is available at www.LD.org/NCLB
Question from Jerome J. Schultz, Ph.D. Clinical Neuropsychologist, Director, The Learning Lab @ Lesley University, Cambridge, MA.:
I am very concerned about the level of stress that is generated by the prospect of high stakes testing because of the clear connection between stress and impaired cognitive functioning. This is especially relevant in a discussion of high-stakes testing for students with LD, as test scores may measure the impact of anxiety rather than knowledge. Has test-related stress-desensitization been considered in test preparation programs for LD students?
The issue of stress experienced by students required to take high stakes tests is an important one, but one that is not a legal issue and so outside the scope of this chat and my expertise. I will say this, though -- studies have shown that one of the hidden problems with high stakes tests is the drop-out problem they can create. Students stressed and humiliated by failing or even the prospect of failing such high profile tests in too many cases opt to drop out of school rather than sit through a test, or a repeat of a test, they think they cannot pass. This is a concern that deserves a great deal of attention.
Question from Judy Elliott Asst Supt Long Beach USD:
In CA there is a current statepolicy that if a student requires/needs an accommodation that is non-standard for the state assessments, s/he can use that accom., however the student's score is automatically 'far below basic' regardless of well the student does on the particular test.
So on one hand IEP teams may be making the right decisions for kids, but then the schools are penalized. How does one state, like CA, address this issue?
This is really a question about NCLB -- which strictly speaking is not a high stakes testing program and does not require that states impose high stakes tests. It requires that states impose a broad range of standardized tests, keep careful track of performance data and take steps to remedy underperformance. But states will only include high stakes tests with consequences for individual students in their testing programs if they choose to do so. This question is describing a situation in California whereby students with disabilties are apparently allowed appropriate accommodations on standardized tests but their scores are classified as non-proficient if those accommodations are utilized. I am not familiar with California's practices, but it is important to note that, assuming this is accurate, this practice would not have high stakes implications for an individual student. It would make it harder for the school and district in which the student is enrolled to make AYP under NCLB. Whether or not that is fair or desirable is a matter for the state to decide. From my perspective, it sends an incorrect message -- that accommodations inherently undercut the validity of a test. It also suggests that students with disabilties cannot be proficient if they utilize accommodations. You could argue that both are at odds with the intent of NCLB and IDEA and perhaps could be challenged on that ground.
Question from Jim Wendorf, NCLD:
If my daughter already receives accommodations on school tests (extended time), will she automatically receive them on a high stakes exam?
The IDEA requires that students with identified disabilities receive appropriate accommodations not only in the classroom but on standardized assessments as well. States vary as to how they comply with this requirement -- many simply allow students to utilize whatever accommodations they are allowed in the classroom; others are more restrictive. The extent of accommodations allowed on high stakes tests has been one of the issues frequently litigated in lawsuits challenging state testing programs. In both California and Oregon plaintiffs were successful in getting the right to a broader range of accommodations than the state had previously allowed.
The U.S. Department of Education's NCLB guidance states that students should be allowed accommodations that are similar to those routinely provided to them in the classroom and in any case should not be introduced for the first time during an assessment. So the short answer is that you should expect to receive similar accommodations on a high stakes exam but need to look to state law for the details.
Question from Cindy Zautcke, policy advisor, Institute for the Transformation of Learning at Marquette University:
Could you compare high stakes testing with the kind of accountability systems charter school authorizers are using? Does quality charter school accountability adequately deal with the concerns about high stakes testing?
I suppose you could look at them as parallel measures -- both charter schools and high stakes tests focus on accountability for results. For charter schools, it is the school that is held accountable for low student performance (this is systemic accountability) whereas high stakes tests such as exit and promotion exams hold students personally accountable.
Question from Cassandra Archie, NAEAACLD:
(1) Who benefits from high stakes testing, and who is harmed? (2)No Single Measure - How can we incorporate other meassures to determine if a student has met the state standards? (3) Will the use of high stakes testing disproportionatley increase the number of African American children being referred for special education services?
Perhaps we can say that if high stakes tests are successful in raising overall student achievement then society in general will benefit from those tests. Individual students who respond well to the challenge of such tests will benefit as well. Many students who cannot meet that challenge -- especially those who have not been given adequate educational support and/or opportunities to prepare for the testing -- are likely to be harmed.
To the extent that state testing programs are geared towards rigorous "world class" standards, rather than minimum standards, the injury rate, so to speak, tends to be higher for all students and for those with disabilities in particular. That is to say, when the tests are harder, more children fail. It may be worth considering whether, in the face of serious consequences for failing students, it is prudent to set the bar so high. Testing programs that impose a lower uniform passing rate with incentives (such as an honors diploma) for higher achievement may be a way to avoid some of the downside to struggling students without giving up on standards-based reform. The second part of your questions deals with the use of multiple measures, which I address in my response to another question. The third part of your question raises the issue of the downsides of high stakes testing for African American students in particular. A few words about that: One consideration is possible test bias -- there have long been concerns about cultural biases embedded in standardized tests and about the negative impact of such biases on the ability of African American students to perform well and show what they know on such tests. This seems to me an important issue that gets to the validity of an assessment and needs to be taken very seriously and rooted out wherever possible. But you specifically raise the question of whether an increase in high stakes testing is likely to lead to an increase in special education referrals of African American students. Such referrals are made by teachers, parents and other individuals in response to indicators of potential learning problems. In some instances poor performance on standardized tests lead to a referral. This is not in itself a problem -- it would be a mistake to ignore warning signs of learning problems. It does become a problem if students are misplaced in special education, though. Where students perform badly as a result of a failure of the school to adequately educate them and/or where the students have not had an adequate chance to prepare for the test, poor test performance may be a red herring -- it may give the illusion that a student is struggling due to a disability. This may make it more likely that an evaluation team would find a disability where none really exists, and that is a concern, especially with regard to African American students, who have historically been overrepresented and misplaced in special education in large numbers.
Question from Cindy Tordoff, parent of learning disabled high school student:
How can it be legal to test learning disabled students on subjects that they have not been taught, nor test them on writing skills that they have not yet obtained? How will this be addressed, and how can it be justified?
It is not legal to test students (with disabilities or otherwise) on subjects they have not been taught. It may be Ok to test them on skills they have not obtained -- if they have had an adequate opportunity to master those skills and been given appropriate accommodations.
There have been numerous court challenges to high stakes exams, many of them brought by representatives of students with disabilities, and a variety of different legal theories have been used in those suits. One of the most successful has been the first point you raise -- you can't test what you do not teach. Courts have generally been receptive to that argument where the facts back it up. Another successful argument relates to lead time - students must be given adequate notice that a high stakes exam will be imposed. If they do not get sufficient notice, it is not fair to impose consequences for failure. Some case law suggests that students with disabilties are entitled to additional notice beyond that required for other students. Here is a quick summary of what courts have said so far about the participation of students with disabilities in high stakes tests: - Students with disabilities must be included in all state and district-wide testing; - Assessments must fairly test the material that was supposed to be, and actually was, taught;- All students are entitled to adequate advanced notice of each test and its consequences and must have an adequate oppportunity to prepare. Students with disabilities may require longer lead time than others; - Students with disabilities are entitled to reasonable accommodations and/or alternate assessments as appropriate.
Question from David Haselkorn, Dean, Lesley University:
What impact is school adequacy litigation likely to have in coming years on the provision of services to ld students in terms of accomodations, access to qualified teachers, etc.? (I'm thinking particuarly of recent litigation in New York, California, and Ma.)
This question refers to law suits brought against states by representatives of parents who believe that their children are not receiving an adequate public education, in violation of state law. Such suits have become widespread in recent years and plaintiffs have been successful in many courts. Adequacy suits are likely to become even more numerous now that NCLB has essentially promised that every child is entitled to an education that will allow he or she to reach the state's standard of proficiency. It seems likely that at least some such suits will include requests for greater access to accommmodations, highly qualified teachers, etc.
Question from Dr. Jana Echevarria, Professor, California State University, Long Beach:
Many English learners with learning disabilities benefit from some support in their native language. What provisions exist to ensure such support?
ELL students do not have the same assurances for accommodations as do students with disabilities, so states are left to themselves to determine what types of accommodations they will allow. I did a little digging and am attaching the links to two web resources that get at this issue and provide a wealth of useful information -- one is a research study done by NCEO at the University of Minnesota: http://education.umn.edu/NCEO/OnlinePubs/MnReport6.html and the other is a helpful guide issued by the state of Illinois: http://www.isbe.state.il.us/spec-ed/PDF/BMChapter8-7-12.pdf
Question from LD Teacher in Frederick County Virginia.:
I'd like to know why this important chat is taking place during the day when teachers, students and most parents obviously cannot participate. I suppose the administrators and politicians will be participating and isn't that why we have the problems with the unrealistic expectations for many students with disabilities and high stake testing in the first place.
We plan to have more chats in the future at various times on different subjects. This time was chosen as it is the peak time for our Web site traffic, but we are open to suggestions for other times. Please send feedback on topics and times to email@example.com. Thanks!
Question from Jo Ann BEhm, RN, State/Federal ED policy consultant:
Would it be a potential civil rights violation to deny Section 504 students same assortment of test related accommodations or modifications or variations [state differs in terminology] that are made available to IEP students---if appropriate for the 504 student and used for classroom tests as determined by their 504 Planning team? This is especially germane because 'transition' from IEP to Section 504 is often exercised between middle to high school or later two years of high school in anticipation of college. Frequently need for test related accommodations/modifications do not disappear when one moves from grade to grade, secondary to post-secondary, or 'exits' special ed services under IDEA. Please comment on consistency and continuity of test related accoms/mods/variations between IEP & 504's and state's obligation to provide and articulate. Jo Behm (son age 20 on 504 in CA Community College with all test related accoms used in high school in place)
Section 504 accommodations should be available in assessments as well as in the classroom, but there will be local variations as to how such accommodations are allowed. A good resource on this may be the report of the blue ribbon panel that was convened to advise the court in a recent high stakes testing case in Oregon -- A.S.K. v. Oregon State Board. The report issued by this panel address a variety of concerns, and makes its findings applicable to students with disabilities under Section 504. I dug up the link: http://www.ode.state.or.us/opportunities/grants/sig/statewide-assessment/report.pdf
Question from Andrew J. Barling, M.A., Director-Stockdale Learning Center, Bakersfield, CA:
How does the newly minted reauthorization of IDEA impact the NCLB?
The reauthorized IDEA is big news -- it was a long time in coming and will have a big impact on students with LD. NCLB is a little less new but also has an enormous impact on special education students and teachers. They come together at a number of significant areas -- student participation in testing, accommodations, teacher credentialing -- but your question about how one law affects the other and this is really outside the scope of our high stakes discussion. It should certainly be the subject of another discussion. Take a look at the resources on the website of the National Association of State Directors of Special Education (NASDSE) -- www.nasdse.org.
Candace Cortiella (Moderator):
That concludes our discussion for today. Thanks to everyone for the thoughtful questions and thanks to Mr. O'Neill for his time today.
A transcript of today's chat will be available at LD Talk.org very soon. We will provide replies to many of the additional questions we received for today's chat via the transcript. Check back for information on the next LD Talk event! Thank you!
Question from Dell F. MacGregor, parent of 19 year old denied high school diploma:
You just said states "cannot step over the line drawn by federal law". What is that line?
One of the questions I just answered included a short list of factors to consider when determining if a particular test program meets legal standards. Anyone who is interested in getting a fuller understanding of the legal backdrop might want to look at a law review article I did a year or so ago entitled "High Stakes Testing Law & Litigation." It was published in the BYU Journal of Education and Law and is on their website at http://www.law2.byu.edu/jel/v2003_2/ONeill.pdf