NCLD Comments to the Commission on No Child Left Behind
September 25, 2006

James H. Wendorf, Executive Director

Good morning. My name is James Wendorf and I am the Executive Director of the National Center for Learning Disabilities. NCLD is a not-for-profit organization founded in 1977 that seeks to increase opportunities for children, adolescents and adults with learning disabilities (LD). We work with a national network of more than 33,000 parents, teachers and individuals with LD. Our 30-year commitment to children and adults with LD is based on the guiding principle that federal policies should reflect what research tells us. From research we know that:

• Learning disabilities are neurologically based
• They do not go away
• They affect some 5% of the population
• They require early and accurate identification and effective intervention if students with LD are to succeed in school and life
• 2.9 million students are diagnosed with learning disabilities and receive special education services in our schools, representing 45% of students with disabilities nationwide
• The majority of students identified with LD have their primary deficit in the area of reading.

As the IDEA definition of specific learning disabilities stipulates, these students have neurological differences that are not primarily the result of mental retardation, emotional disturbance, or of environmental, cultural or economic disadvantage. Additionally, IDEA eligibility determination criteria requires that a student should not be determined to be a child with a specific learning disability if the determinant factor is lack of instruction in reading or math or limited English proficiency. These definitional and qualifying criteria establish students with LD as competent to participate in general education curricula and achieve at a proficient level or higher when provided with high quality instruction by trained professionals as well as appropriate accommodations. Yet the academic performance of students with learning disabilities is far lower than would be expected:  45% of secondary students are reading more than 3 grade levels below their peers and nearly 40% drop out of high school (NLTS2, 2003). These numbers are on par with the national outcomes for African American and Hispanic students. None of these groups should be marginalized through any relaxation of accountability requirements.

The education of students with LD is the responsibility of the total education enterprise, not just special education. Students with disabilities are general education students first.  Their disabilities define challenges to be overcome by all of education. It is for these reasons that our organization has been a leading proponent of the No Child Left Behind Act and its positive effects for students with disabilities.

NCLD has a special interest in the findings and recommendations of the Commission as it addresses the priorities of the No Child Left Behind (NCLB) law that focus on improving academic achievement for all children, including improving instructional practice for children who struggle with learning. We hope your recommendations will support the strengthening and further alignment of No Child Left Behind and the Individuals with Disabilities Education Act (IDEA). While the IDEA mandates the provision of a free appropriate public education for students with disabilities, it contains no provisions setting high expectations and holding schools accountable for their progress. In fact, in its latest reauthorization of IDEA, Congress once again reminded us that "the implementation of the Act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning." It is NCLB that has provided the long needed elements of school accountability and doing what works to improve results for students with disabilities.

Prior to the enactment of NCLB, states failed to include many or most students with disabilities in their statewide assessment systems, despite a provision added to the 1997 reauthorization of the IDEA requiring them to do so. As reported by Dr. Martha Thurlow in her testimony before you this August, "students with disabilities can achieve proficiency on grade level content standards if individualized services, supports, and specialized instruction are provided and students are making gains." Dr. Thurlow also reported that state directors are reporting to NCEO the improvements that they are seeing in the performance of their students, attributing them to clear participation policies, alignment of Individualized Education Programs (IEP) with standards, improved professional development, development and provision of accommodation guidelines and training, increased access to standards-based instruction, and improved data collection (Thompson, Johnstone, Thurlow, & Altman, 2005). You must urge Congress to support these two laws working together to maximize resources and expertise in the most effective ways to help all students achieve their academic potential.

NCLD has spearheaded activities in support of No Child Left Behind, including several documents that have been used to educate and inform policy makers and stakeholders about the positive and meaningful impact the law is having for students with LD. We are providing several of those documents for your review.

My hope in speaking to you today is that you will make decisive recommendations to the U.S. Congress that will achieve the following:

Maintain students with disabilities as a distinct subgroup for AYP accountability. States, school districts and schools must continue to measure and report the academic performance of students with disabilities as a distinct subgroup.  States must also maintain high expectations for improvement in the performance of students with disabilities toward proficiency, measured - except for a relatively small group of students - according to the same standards as all other students.

In addition to maintaining accountability for this important subgroup, states must be required to adopt policies regarding testing accommodations that are backed by research and allow for a wide range of accommodations in test administration so that the vast majority of students with disabilities can participate in grade-level assessments that produce valid and meaningful results. Currently, many schools are facing negative AYP consequences for utilizing accommodations that invalidate a student's test results because of indefensible accommodation policies, improper training of IEP teams or both.

Impose the use of one universal, statistically reliable 'N' size and confidence interval for all subgroups. The requirement to disaggregate performance date for subgroups of students who historically underachieve is a critical element of NCLB's accountability provisions. Special education students, like other subgroups, are an important group educationally and for school assessment and accountability systems. Yet, too many states have been allowed to circumvent accountability for these students through exceedingly large "n" sizes. For example, a Research Report recently released by this Commission's staff indicates that 72% of the students with disabilities in California attend a school that is not required to disaggregate and make AYP for their subgroup because of the large 'n' size used in this state.
 
While unreasonably high "n" sizes do not allow schools to fully escape accountability for special education students - they must still be counted in the whole school calculations for AYP - a recent study by the Center for Assessment found that schools could feasibly ignore the performance of special education students until 2011 or so by virtue of a large "n" size.

This use of high 'n' sizes is further exacerbated by the use of confidence intervals which allow significant numbers of students to never achieve proficiency while ensuring that the school makes AYP. While the use of reasonable confidence intervals can and should be used to deal with reliability issues, they should be utilized in combination with a low 'n' size that results in relatively few schools that need not make AYP for the special education subgroup.

NCLD wants schools, school districts and states focused on closing the achievement for groups of students that historically under-perform academically. This, in conjunction with providing schools the needed research-based support and resources helps put students on a trajectory that leads to academic proficiency.

Infuse Response to Intervention (RTI) throughout NCLB to improve access to early intervention, early identification and improved academic outcomes for all students. IDEA now includes important new provisions that encourage states and school districts to use high quality, research-based interventions as a part of the special education identification process. This process known as RTI, is a multi-step approach to providing services and interventions, typically through general education, to students who struggle with learning at increasing levels of intensity. The progress students make at each stage of intervention is closely monitored. Results of this monitoring are used to make decisions about the need for further research-based instruction and/or intervention in general education, in special education or both. The RTI process has the potential to limit the amount of academic failure that any student experiences and to increase the accuracy of special education identification. Its use may also reduce the number of children who are mistakenly identified as having learning disabilities when their learning problems are actually due to cultural differences or lack of adequate instruction. Information and data gathered by an RTI process can lead to earlier identification of children who have true disabilities and are in need of special education services.

NCLB in its current form has stimulated several RTI models, perhaps most notably the three tiered model developed at the Vaughn Gross Center for Reading and Language Arts at the University of Texas. This model, developed by Sharon Vaughn and her colleagues, is widely used in Reading First as a model for organizing service in schools.

The IDEA 2004 also now allows up to 15 percent of special education funds to be used for the provision of early intervening services for students who have academic or behavioral difficulties but are not identified as having a disability. This is a huge breakthrough for students at risk of having learning disabilities - who traditionally have been required to wait until grade 3 or 4 in order to get special services under the IQ-achievement discrepancy model used for 30 years to identify students with LD. Now, struggling learners can receive intervention as early as kindergarten and first grade instead of waiting until they experience a prolonged and significant period of academic failure. While this is an option for all schools, it is a requirement for schools identified as having over-identification of minorities in special education.

NCLD led the effort to change IDEA and incorporate research-based intervention as a means to both serve and identify students at-risk for LD sooner. We believe strongly that this movement for tailored systems change should be incorporated into NCLB as an organizing and delivery structure. We have
provided a copy of our Parent's Guide to RTI as an attachment to this testimony.

Re-examine the proposed "2 Percent" regulation. To date, NCLD has not seen compelling data or research evidence indicating the need to provide alternate assessment procedures for what will amount to a minimum of 20 percent of students with disabilities. To accommodate the need to address the reality that a very small number of students may have cognitive disabilities that prevent them from working at grade level, even with the very best instruction, the U.S. Department of Education issued the 1 Percent Regulation (which equals 10 percent of students with disabilities) pertaining to students with significant cognitive disabilities.

In school year 2005-2006, the categories of students that did not include cognitive impairments totals 85.3 percent of IDEA-eligible students (www.IDEAdata.org Table 1-3: IDEA Part B Child Count, 2005).  While there may be further need to provide some degree of assessment modifications for additional students with disabilities, the facts do not support the need for a total of up to 30 percent of special education students to be assessed using something other than regular assessments.

There is an overwhelming amount of data supporting the need for more trained special educators, pre-service and in-service professional development for all teachers about research based practice in reading and other content areas, differentiated instruction and the needs of diverse learners. Also, as Dr. Thurlow reported to you: "Prior to NCLB, the use of testing accommodations was about 53% for elementary schools and 44% for middle and high schools (Thompson & Thurlow, 1999). Today those percentages are 65% for elementary schools, 64% for middle schools, and 62% for high schools (Thurlow, Moen, & Altman, 2006). We do not know, as yet, what the percentages should be, but having them closer to the same across school levels is a good sign."

While we recognize there are some students who are working far below grade level in reading, math or both, we know that students can be provided accommodations to overcome barriers of poor decoding or computational skills, so that they can be taught and master other grade-level skills and gain knowledge in the breadth and depth of grade level content that challenge them appropriately. With these accommodations, they gain access to understanding the meaning and functioning of text or problem-solving strategies, while they still work on the basic skills. If they work only on the basic level reading or mathematics skills, before they move on to other skills, they are likely to needlessly lag farther behind their peers, and miss many of the most engaging and content rich curricular activities provided their peers. Recent research has documented that a continued focus on standards, access to the grade-level curriculum, and high expectations is most likely to result in improved performance among students with disabilities [Donahue Institute, 2004; Ford Foundation, 2004].  The 2 Percent policy is not likely to help more students make progress towards the academic success they should be encouraged to achieve.

There is no evidence to support the assertion that there is any valid way to determine which IDEA-eligible students can achieve grade-level proficiency and which cannot, thereby making the decision to exclude any group of students, by virtue of their disability category, IQ, or any other characteristic, both arbitrary and discriminatory. [See, e.g., Expectations for Students with Cognitive Disabilities: Is the Cup Half Empty or Half Full? Can the Cup Flow Over? NCEO Synthesis Report 55.]  We also know from NCEO data that states have focused on how to make assessments more accessible - through better accommodations policies and by applying universal design principles to assessments - not by changing the construct that is to be measured or reducing the grade-level content that is being assessed. Identifying ways to improve assessments for students with disabilities has resulted in improving assessments for all of their students.

This access to grade-level assessment translates to access to the general curriculum. These are positive gains. We should support the momentum and keep states moving along this path. We urge the Commission to reject policies, such as the pending 2 Percent regulation, that do result in students with disabilities being eliminated from grade level curriculum and assessments and support policies that keep students with disabilities on a path more likely to lead to graduation with a regular high school diploma.

Incorporate a growth model into the NCLB accountability system. NCLD appreciates the work of the Commission related to the national discussion regarding the possible use of growth models.  We support the major tenets included in your report. There are schools that are working diligently to facilitate the growth of students with disabilities toward high standards. They should be recognized for the effort if that effort results in significant growth toward state standards. However, any growth model that might become part of AYP determinations in NCLB’s reauthorization should be subject to the same criteria established by the U.S. Department of Education for pilot programs. These criteria contain important principles that will protect students with disabilities from once again being held to lower or different standards and expectations than other students. They are:

• Ensure that all students are proficient by 2014 and set annual goals to ensure that the achievement gap is closing for all groups of students
• Set expectations for annual achievement based upon meeting grade-level proficiency, not based on student background or school characteristics
• Hold schools accountable for student achievement in reading/language arts and mathematics
• Ensure that all students in tested grades are included in the assessment and accountability system, hold schools and districts accountable for the performance of each student subgroup, and include all schools and districts
• Include assessments in each of grades three through eight and high school in both reading/language arts and mathematics, must have been operational for more than one year, and must receive approval through the NCLB peer review process for the 2005-06 school year. The assessment system must also produce comparable results from grade to grade and year to year.
• Track student progress as part of the State data system; and
• Include student participation rates and student achievement on a separate academic indicator in the state accountability system.

While incorporating growth models into NCLB accountability for all students appears to have many desirable characteristics, we would reject the use of growth models as an alternate way of including students with disabilities in the assessment and accountability system. This would include any proposed use of a student's IEP for assessing progress or having the IEP team define or determine what that progress is. States must set high level expectations and standards for all students and define what accelerated growth looks like for all students falling below grade level. Every student needs to be on the trajectory to be proficient.

NCLD recognizes that schools are facing challenges in implementing NCLB, but the challenges must be met. The desired result -- all students proficient in reading and math by 2014 -- is aggressive and requires significant changes in how education is delivered. For students with learning disabilities, this law has provided opportunities never realized through IDEA. By setting high standards and holding states accountable for student performance, we are creating a new era of learning and achievement for students who are able to learn when provided robust and responsive instruction and support. By raising expectations, increasing access to the general curriculum, and eroding the dual system of education that has limited the academic achievement of this group of students for too long, we can expand academic opportunity and help students reach the goals of receiving a regular high school diploma, having access to college or entering meaningful job training. 

NCLD is ready to assist you as you complete your work. I thank you for this opportunity today.