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Why We Oppose the New York ESEA Waiver Proposal to Lower Standards for Our Kids

new-york-esea-proposalIn January, New York’s Commissioner of Education, John King, asked the New York Board of Regents to allow a practice we haven’t seen since used anywhere in the nation for over 10 years, called "out-of-level testing." Under this proposal, New York would allow schools to test certain students with disabilities at up to two grade levels below their enrolled grade. NCLD opposes this and we are calling on parents, community members, and other organizations to also speak out against it.


What Will This Mean? First, it’s important to understand what an “out-of-level” test is. Under this rule, eligible students will be given tests at up to two grade levels below their enrolled grade. This means that a student who is in the 6th grade would take the 4nd grade test. Although the proposal requires the school increase the student’s grade each year thereafter—meaning when the 6th grader moves to 7th grade he will take the 5th grade test, there is no requirement to ever ensure that this student is instructed at an performing on their enrolled grade level. So, the logical outcome is that students who get placed on lower level tests, will be permanently behind. Evidence about students who fall behind overwhelmingly demonstrates they dropout of high school.

Next, if a student is proficient on the lower level test, schools will get credit in their accountability systems for this performance. Allowing students to take easier tests makes school performance look better, even when it isn’t.

Who Will This Affect?This proposal will affect a new undefined category of students with disabilities from 4th to 8th grade in New York State. New York is calling this new group that it just made up “students with significant cognitive disabilities who are ineligible for the alternate assessment.” The alternate assessment is aligned to grade level standards but is for students with significant cognitive disabilities. It is already given to approximately one percent of all students, which is 10 percent of students with disabilities; so this new proposal will affect a separate group of students with disabilities, in addition to the 10 percent who are already taking the alternate assessment.

Right now, we don’t know who “students with significant cognitive disabilities who are ineligible for the alternate assessment” are or will be. All we know is that local schools will look at a few factors and determine whether a student is working at grade level and if not, they may recommend that the student be tested against lower standards. If this policy is approved by the U.S. Department of Education, NCLD will advise parents against agreeing during IEP meetings to allow their child to be taken off grade level and placed in this group. Parents will have to take an extremely active role in IEP meetings and understand their right to say no if asked.

Why Are We Concerned?This proposal will set back many students and, if approved for New York, could lead to many more states enacting similar practices. We oppose this proposal for several reasons:

  1. The proposal will allow schools to hide the actual proficiency of many students. For decades federal law has guaranteed students with disabilities the right to access the general education curriculum and to be tested with their grade level peers. It is important to remember that federal law had to include these things because people were not giving these to kids without a legal mandate. These rights are important because historically, due to discrimination, people assumed students with disabilities couldn’t perform at high levels. This mistaken belief meant they never taught students with disabilities at high levels and never even let them try to achieve them.

  2. Testing is one way we know where kids are performing. It isn’t perfect and it isn’t a solution to bad instruction or everything that is wrong with schools. But even if a student with a disability fails a grade level test, that information is important. It tells school leaders and policy makers there is a problem. There is a problem because that child has a right to appropriate services and supports and specialized instruction to help them reach grade level. Accurate test results even when they show failure justify directing better professional development to that student’s team, better accessible technology and even just asking the question—why is this happening? Without this accurate information, students will be allowed to underachieve indefinitely—and really we are just blaming the students for that—we hold no one else accountably. Instead of truthfully looking at the situation and saying—we know this student can achieve, how can we help them? The system decides for them that they can only ever achieve at lower levels so it is okay to hold them back. Underachievement becomes a self-fulfilling prohphecy. We don’t teach them to achieve at grade level, and then we they don’t achieve at grade level we blame them. Testing—for all its faults—helps us hold the system accountable. Allowing a state to just write off students who are hard to teach and say—they can only achieve to x level in life—that is bad policy and it hurts kids.

  3. This proposal will disproportionately impact—hurt—minority and low-income students. Historically, where policies like this have been applied, they hurt African-American and Hispanic students more than their peers. We believe this will happen again in New York with this policy. Check out our talking points to see examples and statistics.

  4. If this policy is enacted, we will lose a generation of students. Once students are given a lower level test, they will be tracked into lower grade levels. There are no provisions in this policy to help students achieve at grade level. There is no monitoring. There is no requirement for a plan to get kids to grade level. There is nothing but blame and discrimination for the students. Because they will never get access to grade level instruction, students will be permanently behind.

We believe that the solution to this issue lies with instruction! We should be talking about how to improve instruction, rather than talking about lower standards. To the extent that students with disabilities in New York are failing to perform at a proficient level on grade level tests, then the state should be making changes and enhancements to their instruction. IDEA protects this right.

We know that the U.S. Department of Education also opposes lower standards for students. In this Huffington Post article, Assistant Secretary of Education, Deb Delisle, went on the record as being opposed to off-grade testing because it lowers standards.

What Happens Now?On February 11th, the Board of Regents approved the plan. You can read coverage of the Board of Regents meeting and the state’s plans in a recent news report. Now, the plan has to be approved by the U.S. Department of Education before it can be implemented.

How Can You Get Involved?We have created what we call “talking points.” This two-page document gives all of our reasons why we oppose the New York proposal to test kids up to two-grade levels lower than their enrolled grade. It gives examples and statistics showing why the proposal would fail, and why similar proposals have failed in other places. We want to share this with all of you and we hope that you’ll share it with your friends, families, and networks. You can use it to keep fighting for our kids and to educate others on this important issue. You can get it here.

Just as we did on the state level, we will be setting up another Action Alert for parents, teachers, leaders, and community members to voice their concerns and send them straight to the U.S. Department of Education. You can join our mailing list to be notified when that Action Alert is up.

We are also providing New York residents with direct access to their Senators and Representatives. If you live in New York, you can use this link to send letters to Senators Schumer and Gillibrand and the New York Representatives in DC. Additionally, if you are active in any education related professional association take our talking points to them, share your and our concerns, and ask them to support us in opposing this plan.

It's Never Too Late to Make a Difference! Even though the Board of Regents has approved the proposal, there are more hurdles for New York to clear. If you haven’t made your voice heard and want to, now is the time! Use our Action Alerts to send letters – every voice counts. We know that providing students with disabilities with an excellent education isn’t simple, but it’s achievable and it’s the right thing to do. We know that with accommodations, supports and high expectations, students with disabilities can succeed. Unfortunately, this proposal leaves students with disabilities permanently behind. Let’s defeat it before it hurts thousands of students in New York and even more across the country.


Lindsay Jones.jpg Lindsay is the Director of Public Policy and Advocacy for the National Center for Learning Disabilities. She leads a team that designs and implements NCLD’s legislative strategy in Washington, D.C., aimed at advancing government policies that support the success of individuals with learning disabilities in school, at work and in life.