High Stakes Testing napas by VISAKH


									    High-Stakes Testing, Diploma Options, and Students with Disabilities: Negotiating the
                 Quagmire of Politics, Policy, Rhetoric, Law, and Emotion

                                   Leslie Seid Margolis
                                    Managing Attorney
                              Maryland Disability Law Center
           Produced for National Association of Protection and Advocacy Systems
                                     December, 20031


    For anyone practicing special education law today, it is virtually impossible to avoid
discussions about high-stakes testing and, perhaps, diploma options for students with
disabilities. As national attention has increasingly focused on the need for better quality
education of students, many states have responded by developing tests that have become
prerequisites for graduation. Because passage of the tests is required for a diploma, the
granting or withholding of which will have lifelong consequences for a young person, the
tests are known as “high-stakes” tests. The ultimate legitimization of testing as a means
of increasing the quality of education was the passage of the No Child Left Behind Act,
which requires testing annually from third through eighth grades as well as in one year of
high school, although a high school exit exam is not required.

    The idea that testing leads to better education and better outcomes for children is quite
controversial and has divided researchers, policymakers, administrators, and other
decisionmakers. Regardless of the controversy however, it is indisputable that so long as
No Child Left Behind is in place and so long as the majority of states have high school
test requirements, attorneys and advocates will have no choice but to address the reality
of testing, whether they agree with it or not. It will be up to attorneys and advocates to
determine how best to influence those policies it is possible to change, use the law to
attempt to change discriminatory or illegal programs, and use the IEP process to ensure
that students have access to the general curriculum and receive the appropriate
accommodations and modifications that will enable them to take the tests and increase
their chances of passing them.

   Related to testing is the concept of differentiated diplomas, a system to which states
are increasingly turning as requirements for graduation have become more rigorous and
more complicated. Also controversial, this framework entails a variety of diploma
options, each with different requirements.

   This briefing paper will examine the issues of high-stakes testing and differentiated
diplomas as they are currently implemented across the country. The paper will begin

 Produced by the Maryland Disability Law Center with a grant from the Training Advocacy Support
Center (TASC) at the National Association of Protection and Advocacy Systems, Inc. Support for the
development of this document comes from a federal interagency contract with the Administration on
Developmental Disabilities (ADD), the Center for Mental Health Services (CMHS), and the Rehabilitation
Services Administration (RSA).

with a discussion of high-stakes testing program requirements and a brief survey of some
of the key litigation that has challenged such programs. The paper will continue with a
discussion of test waivers, alternate tests, and portfolios. The next section of the paper
will look at differentiated diploma options and some of the policy considerations in favor
of and against differentiated diplomas. The paper will then make some additional
suggestions for attorneys and advocates facing representation decisions and policy
activities regarding high stakes testing and diploma options. The final section will
contain a list of references. It is important to note that high-stakes testing and diploma
options are issues of significant magnitude; a briefing paper can only skim the surface of
these issues and raise more questions than it can answer.

  Overview of Graduation Requirements, High-Stakes Testing, and Related Litigation

   According to “A National Study on Graduation Requirements and Diploma Options
for Youth with Disabilities” (National Center on Educational Outcomes, Technical
Report 36, Prepared by David R. Johnson and Martha L. Thurlow, October 2003,
http://www.education.umn.edu/NCEO/OnlinePubs/Technical36.htm), several states, such
as Florida and New York, have had high-stakes exam requirements since the late 1960s
and early 1970s. In the late 1970s, concerns that students were leaving school poorly
prepared for life as adults led to the minimum competency test movement. Id. at 5.
Despite the fact that between 1973 and 1983, testing spread from two to 34 states, studies
showed that the testing programs did not lead to the reforms in public education that the
testing proponents had hoped would occur. Id. at 6. Further, although the U.S. Office of
Technology Assessment had concluded in a study that the tests were disproportionately
harming minority and low income students and were increasing dropout rates, the
minimum competency test movement served in some ways as a model for the standards-
based reform movement that began in the early 1990s. Id.

   With each testing movement that has sprung up, the question of how to include
students with disabilities has remained troubling. The Individuals with Disabilities
Education Act (IDEA) requires that students with disabilities participate in state and
district assessments, with appropriate accommodations and modifications in
administration if necessary. The IDEA further requires that the test performance of
students with disabilities be reported and that the state develop and administer alternate
assessments for students with disabilities who cannot participate in state and district-wide
assessment programs. 34 C.F.R. 300.138. The No Child Left Behind Act requires
schools and school districts to demonstrate that all students are making adequate yearly
progress as measured by average test scores among other measures. Schools and districts
that do not show achievement gains among students with disabilities, English language
learners, minority students, and low-income students will be subject to district and state

   Additionally, while the No Child Left Behind Act does not require high school
assessments for promotion or graduation purposes, it does require the use of graduation
rate as an indicator for states to use at the high school level to measure whether districts
are making adequate yearly progress. The graduation rate is measured by looking at the

number of students who finish high school in four years with a standard high school
diploma. Id. at 4. On the face of it, this creates problems for schools and districts that
have students with disabilities who use the time between 18 and 21 years of age to
complete high school graduation requirements or meet the requirements for differentiated
diplomas. This is, of course, only one of many problems posed by high-stakes tests for
students with disabilities; this paper can address only some of these problems.

   There have been a number of cases challenging the use of high school exit exams. In
the landmark Debra P. v. Turlington decision, 644 F. 2d 397 (5th Cir. 1981), a group of
African-American students challenged the Florida high school exit exam as being racially
biased, and challenged the lack of sufficient notice and time to prepare for the exam. The
court held that a high school diploma is an implied constitutional property interest. See
also Goss v. Lopez, 419 U.S. 565, 574 (1975). The court further held that the state could
not deprive students of high school diplomas until it had proven the curricular validity of
the exit test, i.e., until it had proven that the test focused on what was currently taught in
Florida‟s classrooms, and until it had proven that the racially discriminatory impact of the
test was not due to the educational deprivation that occurred in the years when Florida
ran a dual school system divided by race. Several years later, the court held that students,
who now had six years notice of the exam, had been afforded the opportunity to learn the
relevant material, given the state‟s remedial programs. Debra P. v. Turlington, 730 F. 2d
1405 (5th Cir. 1984)

    In Brookhart v. Illinois State Board of Education, 697 F.2d 179 (7th Cir. 1983), the
court addressed the question of whether students with disabilities who had received
special education and related services under the IDEA, but who were unable to pass the
state‟s minimal competency test, could be denied high school diplomas. The court
upheld the legality of exit exams under the Individuals with Disabilities Education Act
and Section 504 of the Rehabilitation Act of 1973. However, the court found that the
plaintiffs had a liberty interest sufficient to invoke procedural due process protections,
and that they had been afforded constitutionally inadequate notice of the exit exam
requirement because they had not had sufficient time to be taught, through their IEPs, the
material to be covered on the exam.

    In GI Forum, Image de Tejas v. Texas Education Agency, 87 F. Supp. 2d 667 (W.D.
Texas 2000), plaintiffs challenged the use of the Texas Assessment of Academic Skills as
a requirement for high school graduation. The court held that use of the examination did
not violate Title VI regulations, nor did use of the examination violate the due process
rights of minority students in Texas. The court concluded that the examination was
strongly correlated to the material that was actually taught in Texas‟ classrooms and that
the test was valid and in accord with current educational norms. The court also found
that the test did not perpetuate prior educational discrimination or hold Texas‟ minority
students accountable for the failures of the state‟s educational system. In fact, the court

found, the state was attempting, through the test to identify inequities in the educational
system and to remedy them.2

    A later challenge to a statewide exit exam was also unsuccessful. In Rene v. Reed,
751 N.E. 736 (Ind. Ct. App. 2001), 34 IDELR 284, the plaintiffs requested an injunction
to bar administration of Indiana‟s graduation qualifying examination. The plaintiffs
wanted the test to be barred until it represented a fair test of what students with
disabilities had been taught. The court refused to enjoin enforcement of the test. The
court found that the trial court had not erred in finding that plaintiffs had sufficient notice
of the exam and that they had been exposed to the curriculum to be tested, although they
might have benefited from an earlier realignment of their curriculum so it would better
prepare them for the exit exam requirement. The court also held that the trial court had
correctly found that remediation and additional test-taking opportunities were adequate
remedies for any violations of due process that did occur. Finally, the court found that
the trial court did not err to the extent that it found no violation of the IDEA when the
state refused to permit certain accommodations during the graduation qualifying exam,
even though students had those accommodations on their IEPs for other tests.

    A California challenge to the state exit exam produced different results. While the
plaintiffs in Chapman v. California Department of Education, C01-0178OCRB (N.D. Cal
2002), 36 IDELR 91 were not successful in halting administration of the California High
School Exit Exam, or making it a voluntary test, they did obtain a preliminary injunction
in 2002 on behalf of students with learning disabilities. The court ordered that students
be permitted to take the exit exam with any accommodations or modifications their IEP
or Section 504 plan specifically identified for the exit exam or for other standardized or
general classroom testing. The court also required the development and provision of an
alternate assessment to students who were unable to take the exit exam.

    Subsequently, the ninth circuit dissolved portions of the injunction related to waiver of
the assessment and the alternate assessment. The court addressed plaintiffs‟ claims
regarding the overly discretionary nature of the waiver process, which required that
students with disabilities take the exam with accommodations and then apply for a waiver
of the assessment, thereby taking the risk that the waiver might be denied, or that they
take the exam without accommodations and risk failure. Smiley v. California
Department of Education, 45 Fed. Appx. 780, 2002 WL 31001869 (9th Cir. Cal. Sept. 4,
2002) and 53 Fed. Appx. 474, 2002 WL 31856343 (9th Cir. Cal. Dec. 19, 2002). The
state subsequently changed its regulations to make the process less discretionary. If
students with disabilities have an IEP or Section 504 plan, that requires particular
accommodations or modifications for taking the exam, the student has completed or is
progressing toward the completion of sufficient high school level coursework to have
  While not a graduation-related case, another case filed in 2000, Parents for Educational
Justice v. Picard, 2000 WL 526864 (E.D. La. 2000) was a challenge to Louisiana‟s
fourth and eighth grade high stakes testing program, which formed the basis for
promotion decisions. Plaintiffs‟case was dismissed for lack of standing as the test results
had not yet been released when the suit was filed.

attained the skills or knowledge otherwise needed to pass the exit exam, and the student
has received the equivalent of a passing score on the exam with an accommodation or
modification, a waiver will be granted. In a subsequent decision, the district court noted
that the California Board of Education voted during the summer of 2003 to eliminate the
exit exam as a graduation requirement for the classes of 2004 and 2005, but to reinstate it
for the class of 2006. In its decision of September 5, 2003, the court dismissed the
remaining claims of the plaintiff class, the nonorganizational members of which were all
members of the class of 2004 or 2005. Chapman v. California Department of
Education, 2003 WL 22114264 (N.D. Cal. Sept. 5, 2003), 40 IDELR 45.

   A group of students unsuccessfully filed suit in Massachusetts in 2002 to try to halt
administration of the state exit exam. Student v. Driscoll, (No. 02-30152-MAP, W.D.
Mass. 2002). The students argued that the exam discriminated against minority students,
students with limited English proficiency, and students with special needs and claimed
that the test denied them due process. The federal court judge denied a preliminary
injunction and sent the case to state court. The plaintiffs filed a case in state court in
early 2003. Students 1-6 v. Massachusetts Board of Education, C.A. #2003-00071
(Suffolk Superior Ct. 2003). The case was brought on behalf of the graduating class of
2003; the case was still pending as of September, 2003. The original complaint can be
found at http://www.massparents.org/legal/masslawsuit-index.htm and a brief discussion
can be found in “State High School Exit Exams Put to the Test,” published by the Center
on Education Policy, August 2003,
http://www.ctredpol.org/highschooexit/1/exitexam4/pdf at p. 67.

   Advocates in Oregon settled a lawsuit regarding the validity of accommodations for
state testing, including testing for its certificate of initial mastery, required of all tenth
graders. Advocates for Special Kids v. Oregon State Board of Education, (cite
unavailable, D. Ore. 1999). The complaint is available at
http://www.tlpj.org.briefs/wyrick.htm . For a very brief discussion of the case, see “A
National Study on Graduation Requirements and Diploma Options for Youth with
Disabilities,” http://www.education.umn.edu/NCEO/OnlinePubs/Technical36.htm at 15.3

   At least two lawsuits have been filed and settled against test scoring companies for
errors in scoring exit exams. Students in Minnesota settled a case against NCS Pearson
for alleged errors in a math proficiency exam that kept approximately 340 students from
graduating in 2000 after nearly 8000 students had been told they had failed the exam
when they had, in fact, passed it. The suit settled for $7 million. Minnesota then
contracted with a different company to score its exam. See, e.g., “Students to receive a
total of $7M in testing lawsuit settlement,” The Minneapolis*St. Paul Business Journal,
November 25, 2002,
http://www.bizjournals.com/twincities/stories/2002/11/25/daily4.html See also: “State
High School Exit Exams Put to The Test,”
http://www.ctredpol.org/highschoolexit/1/exitexam4/pdf at p. 67. Likewise, students in
Nevada sued Harcourt Educational Measurement Corporation after the company told 736

  Westlaw and Individuals with Disabilities Education Law Report (IDELR) searches have not produced
full citations for the cases referenced in this paragraph.

sophomores and juniors it had failed the test when they should have passed. The
company agreed to pay a $425,000 penalty and pay for an independent audit team to
assess its performance for the rest of its contract with the state. Id.

   As with so many other aspects of education, high stakes testing is rife with issues that
lend themselves to dispute, especially when states do not take the time to craft careful,
thoughtful policies. The broad scope of the litigation surveyed, ranging from the tests
themselves to accommodations to waivers, from alternate tests to scoring, demonstrates
that there is much about which to be concerned, and much about which to focus advocacy

   According to the National Center for Educational Outcomes (with updates from
personal knowledge), the following states require or will require students with disabilities
to pass a state exit exam in order to receive a high school diploma. The year in
parentheses is the graduating class year the requirement became or will become effective:

Alabama (1985)        Louisiana (1989)                Ohio (1990)
Alaska (2004)         Maryland (1988) new exam (2009) Pennsylvania (local exam)
Arizona (2005)        Massachusetts (2003)            South Carolina (1986)
California (2006)     Minnesota (2000)                Tennessee (2002)
Delaware (2004)       Mississippi (1988)              Texas (1987)
Florida (1983)        Nevada (1999)                    Utah (2005)
Georgia (1994)        New Jersey (1993)               Virginia (2004)
Hawaii (2008)         New Mexico (1987)               Wisconsin (local exam)
Idaho (2005)          New York (2004)                  District of Columbia (2004)
Indiana (2000)        North Carolina (2003)

http://www.education.umn.edu/NCEO/OnlinePubs/Technical36.htm at 17-18. Note that
this list may include both exit exams and end-of-course exams, i.e., exams that are taken
at the completion of a particular course such as algebra and which must be passed in
order to obtain a diploma. This list does not include exams such as those required by
Michigan and Oregon, which are used to identify students who will receive mastery
certificates, but which are not required for a high school diploma. Id.

                     Waivers, Alternate Assessments, and Portfolios

    Several states have developed appeal or waiver processes for waiving the exam
requirement for students who repeatedly fail the state exam. Some states are very
specific about the requirements that must be met; other states are less specific. Some
states have state-level requirements but others have a district-level alternate route to a
regular diploma. See “State High School Exit Exams Put to the Test,” Center on
Education Policy, August 2003, http://www.ctredpol.org/highschoolexit/1/exitexam/4/pdf
at 73-74. Several states, such as New York and Virginia, permit substitute tests, such as
Advanced Placement, International Baccalaureate, SAT, and others to substitute for the
exit exam. Id. at 74. New Jersey has an alternate assessment that is available for all
students, not just special education students, who have failed the regular state exit exam

but who have met all other graduation requirements. The state education commissioner
has recommended, however, that this alternate exam be terminated because of concerns
that it is not rigorous enough. Id. at 75.

   Ohio provides an alternate administration of the exit exam to certain students in the
form of an oral administration of the test (except for the writing test). Id. Some states
will exempt students from taking an exit exam if the students moved to the state from
another state in which they passed an exit exam or an end-of course exam. Id. At least
partly as a result of the Chapman litigation, California has an objective process by which
students may seek waivers of the exam. Previously, if students met certain requirements,
they could petition for a waiver, which might or might not be granted. Under revised
regulations, if they meet the requirements, the waiver is granted.

   The issue of how to handle students with disabilities who do not pass the exit exams
remains difficult. In Massachusetts, legislation passed that would have allowed students
with disabilities who repeatedly failed the exit exam but met other graduation
requirements to obtain diplomas, but the bill was vetoed. In Florida, similar legislation
passed in 2003, permitting students who meet graduation requirements but fail the exit
exam in 10th and 11th grades to obtain a diploma if a special education committee
determines that the test cannot accurately measure the student‟s skills because of his or
her disability. Id. at 77.

   Other states have developed alternate ways of demonstrating mastery of the skills
tested by the exit or mastery exam. Oregon, for instance, uses a portfolio method, and
has developed guidelines for students using this alternate assessment method in the form
of a juried assessment manual. See,
http://www.ode.state.or.us/asmt/administration/juried/ . Portfolios are collections of
student work, often in the form of projects or papers that demonstrate the student's
mastery of the subject matter. Vermont instituted portfolios a number of years ago as
part of its fourth and eighth grade testing efforts; at least in the early 1990s, studies found
problems with the reliability of scoring of the portfolios. See, e.g.,
http://www.fairtest.org/examarts/winter94/K-VT.html . Presumably, however, much has
been learned about how to score portfolios over the last ten years. Additionally, many
progressive school reform advocates embrace portfolios as a creative way of allowing
students to demonstrate knowledge of curriculum. See Resource section at the end of this
document for more information.

                              Differentiated Diploma Options


   As more and more states have imposed exit exams for graduation, they have been
faced with the reality of low pass rates, particularly by students of color but even more
particularly by students with disabilities. In the field test of Maryland‟s high school
assessment administered in 2003, for instance, while the overall results were
disappointing, only 2 out of 10 students with disabilities passed the exam. The reality of

low pass rates has caused states to consider the ramifications of potentially large numbers
of students not being able to receive high school diplomas. This has led in some states to
the creation of the use of differentiated diplomas, i.e., diplomas with different
requirements. Diploma options include honors diplomas, occupational diplomas,
standard diplomas, IEP diplomas, certificates of participation, and others. Id. at 30. The
creation of different diplomas, however, raises many policy issues and questions, not the
least of which is: What is the meaning of a high school diploma?

                      An Overview of Differentiated Diploma Issues

    There are policy arguments both for and against a single diploma and multiple
diplomas. Cutting in favor of a single diploma, proponents would argue that high
standards for all students are maintained and that the diploma stands for an accepted level
of achievement that is clear to employers, postsecondary education institutions, and
others. Proponents would also argue that more students with disabilities would graduate
with a standard diploma. Id. at 25 and 31. Arguments against granting a single diploma
include the likelihood that the dropout rate may increase for students who cannot meet
graduation requirements, fewer students with disabilities may receive the standard
diploma because they will be unable to meet the exit exam requirement, the standard
diploma “may be perceived as too general or „watered-down‟ in order to accommodate
the full range of student abilities” or states may revise their standards downward in order
to ensure that students with disabilities meet the requirements for a standard diploma. Id.
at 31 and 25.

    With respect to multiple diplomas, proponents argue that states can better maintain
higher academic standards for their regular diplomas when other diploma options are
available, more students receive some type of diploma when a variety of diplomas are
available, and dropout rates may decrease because students with disabilities may be
motivated by the diploma options available to them. Id. at 31-32. On the other hand,
opponents of multiple diplomas are concerned that expectations for students with
disabilities are decreased, that non-standard diplomas are viewed as substandard, that it
may be more difficult for students with disabilities to obtain access to the general
curriculum, that it is very difficult to explain the meaning of different diplomas and their
requirements to students, parents, and others, and that the meaning of the diplomas is not
clear to employers, postsecondary education institutions, and others. Id. at 32. These are
all valid concerns; states, however, do not seem to be worried about the need to research
or address these concerns prior to adopting either high-stakes testing programs, or
programs such as differentiated diplomas as a means for addressing the fallout from those
high-stakes testing programs.

   The following states currently offer multiple diploma options to students. Options
include an honors diploma, regular or standard diploma, IEP or special education
diploma, certificate of attendance, certificate of achievement, occupation diploma, or
other type of diploma. Not all states award all types of diplomas.

Alabama        Iowa               North Carolina       Washington

Alaska          Louisiana          North Dakota          West Virginia
Arkansas        Maryland           Ohio                  Wisconsin
Colorado        Michigan           Oregon                Wyoming
Connecticut     Mississippi        Rhode Island          District of Columbia
Delaware        Missouri           South Carolina
Florida         Montana            South Dakota
Georgia         Nebraska           Tennessee
Hawaii          New Mexico         Utah
Illinois        New York           Virginia

Id. at 14-15.

The National Center on Educational Outcomes has noted a general trend since 1995 for
states to increase the number of diploma options although some states have reduced the
number of options. Id. at 15. Interesting, but perhaps not surprising, is the fact that very
few states involved postsecondary education institutions and employers in discussions
about diploma options, despite the significance of high school diplomas in the
postsecondary education and business worlds. Id. at 15-16. One role advocates can play
as the process unfolds in their states is to raise questions about the state‟s proposed
actions regarding differentiated diplomas. Why is the state choosing to take its proposed
course of action? What does it hope to accomplish? Are these outcomes likely? What
are the possible consequences? Have other states taken similar actions? What happened?
What can the state do differently to avoid the problems that have faced other states?

                                 Thoughts about Litigation

    In addition to the general fact that these are difficult times in which to litigate, recent
litigation has not been particularly effective in halting high-stakes testing programs, and
standing has often been an issue for plaintiffs. However, if a state is proceeding rapidly
to develop such a program, advocates may be able to use landmark cases such as Debra
P. and Brookhart to argue that students, particularly students with disabilities, have not
been given sufficient time to learn the material that will be tested and that the curriculum
and the test have not been aligned. This argument is more likely to be effective if the
implementation time for the test is short. Many states, however, are phasing their tests in
over a number of years and delaying the link between passage of the test and a diploma
by five or six or more years. This is likely to make a Debra P.-type challenge difficult.
Other potential areas of challenge may be an overly-discretionary test waiver process
such as the one that California had prior to the Chapman case, or a multiple diploma
framework that limits particular types of diplomas only to students with or without
disabilities. Lack of access for students with disabilities to the general curriculum or lack
of an alternate assessment are additional issues that might be worth pursuing either
through litigation or as policy initiatives.

          Policy Approach to High-Stakes Testing and Differentiated Diplomas:

    The following list of issues to address and questions to ask is offered as a guide to
help attorneys and advocates begin to consider the kinds of legal policy issues that arise
in the area of high stakes testing and differentiated diplomas. Particularly if attorneys
and advocates step into the policy arena and try to influence state policy on these issues,
it will be important to develop positions regarding these issues.

   There is a critical point to be made, however, and that is the difference between the
ideal and the real world. In the ideal world, P&A attorneys and advocates might be able
to convince state officials to eliminate high-stakes graduation tests or to develop a
meaningful test that is absolutely fair to students with disabilities. In the real world,
however, states have plunged or are plunging into the world of high stakes testing with
seemingly little thought for the long-term consequences. The ability of attorneys and
advocates to stop the process is probably nil. The ability of attorneys and advocates to
influence the process may be more promising, depending on where states are in the
process and on how amenable state policymakers are to being influenced. Policy work
should be considered as a viable alternative to, or tool to be used with, litigation.

General Strategy:

1) Attend state board of education meetings

   a) Testify if possible: It is important to raise issues and questions publicly. Even if
      questions are not answered or are not answered satisfactorily, it is important to
      ask them.

2) Advocate for an open process. High-stakes testing and differentiated diploma options
   are issues of great importance and they are highly emotional issues for many people.
   Ask the board of education to make the department of education solicit public input
   as it carries out its responsibilities to write regulations, develop policies, etc. For
   example, as a result of testimony by the P&A at a state board of education meeting
   asking for a public regulatory process, the Maryland State Department of Education is
   convening a task force of special education advocates and others for two half-day
   meetings prior to drafting regulations to develop a framework for differentiated

3) Maintain working relationships with state department of education personnel if
   possible. At some point, it may be necessary to choose litigation with the state over
   policy work because both will not be possible. However, if policy work is
   productive, maintain relationships and continue to ask questions and raise issues
   privately as well as publicly. Keeping issues on the table ensures that they will not be
   forgotten and preserves them should litigation become necessary.

Issues to Address/Questions to Ask:

1) Relationship between high stakes tests/access to general curriculum:

Do students with disabilities have access to the general curriculum? If not, what are the
barriers? Have students with disabilities received inadequate instruction? Have teachers
failed to make curriculum adaptations or modifications? Have teachers failed to
differentiate instruction? Is the problem systemic, i.e. inadequate teacher preparation? In
other words, have teachers been inadequately prepared to teach students with disabilities
how to learn academic course material? Is the problem related to lack of compliance
with least restrictive environment requirements? Have students with disabilities been
placed in separate settings in which they have not had access to academic curriculum
course offerings?

Strategy: Try to determine if students with disabilities have had sufficient access to the
curriculum on which they are now being tested. Have they been taught that curriculum by
teachers who have been adequately trained to make that access meaningful? It may be
possible to use the Debra P. and Brookhart rulings to argue that more time is necessary
before an exit exam can be a graduation requirement for students with disabilities if those
students have not had the opportunity to be taught the material that will be covered by the

   A more difficult issue, however, is the lack of access caused by inadequate teaching.
Many general education teachers simply do not understand how to make the academic
curriculum accessible to students with disabilities and many special education teachers do
not possess subject content knowledge. This creates tremendous problems for students
with disabilities who are expected to master the general curriculum and could do so if
they were taught in a way that took account of their unique educational needs, as the
Individuals with Disabilities Act requires.

    While teacher preparation is a systemic problem that cannot easily be fixed, it can and
should be raised in the context of high-stakes testing policy work as well as in the context
of least restrictive environment work and, probably nearly every other policy issue
addressed statewide. Is it possible to halt or slow down the high-stakes testing process by
using inadequate teacher preparation and lack of access to the general curriculum as
policy arguments? Advocates in Maryland were not successful in using this argument to
advocate for a delay in linking high school assessments to diplomas for students with
disabilities in 2009; however, the argument has resonated with state department of
education officials and advocates will continue to make this argument in every context
possible to press for the creation of a portfolio as an alternative to the high-school
assessment, in ongoing efforts to improve the quality of education for students with
disabilities, and in ongoing efforts to improve the quality of teacher preparation

2) Multiple diplomas:

If the state has or is considering a differentiated diploma framework: Do students with
and without disabilities have access to the full range of diplomas? Are any diploma
options open only to students with disabilities? Do these options appear to be
discriminatory, either in favor of or against students with disabilities? Does the multiple

diploma framework preserve high standards for all students or does it seem designed to
lower expectations and, therefore, achievement levels necessary to graduate? Does the
framework permit the IEP team to make the decision at any time about whether or not a
student is diploma-bound and, if so, which diploma the student is working towards, or
does the framework force the team to make a decision early and narrow the options open
to a student for his or educational program at an early point in his or education? What do
the different diplomas mean? Are the different diplomas accepted by businesses?
Institutions of higher education? The military?

Strategy: Try to determine if the diploma framework has the unintended result of
categorizing students at any early age and placing them into programs that may lower
expectations based on their disabilities or perceived achievement levels. Try to
determine if the diploma framework discriminates against students by making certain
diploma options available only to students with or without disabilities. Determine if legal
grounds exist for challenging diploma options that are only available to students with
disabilities; the notion of disability-only diplomas runs counter to the basic premise of
participation of students with and without disabilities in education activities together.

   Advocate for a diploma framework that includes meaningful diplomas for all students.
While multiple diplomas may be helpful to students with disabilities, the diplomas must
carry weight with the community at large. This can only happen if the state involves the
community in the process. Advocate for an open process. Form alliances with other
advocates, with parents, and with other organizations to the extent possible. Try not to let
the state department of education or the board of education develop diploma regulations
or policies without public involvement. Waiting for a public comment period once
regulations are drafted, while not impossible, is very late for meaningful public input; the
state‟s incentive to revise its draft regulations will be minimal.

3) Portfolios:

   Does the state have an alternate assessment or an alternative method of allowing
students to demonstrate mastery of the curriculum? What does this method look like?
How is it scored? Is the scoring system reliable and consistent? Can the portfolios be
measured against the assessments? Can these measurements and the diploma decisions
made as a result stand up to a legal challenge?

Strategy: Determine if a portfolio option is a viable alternative to a high stakes test for
the purpose of earning a regular diploma. Look at the systems developed by other states
and by school reform leaders as models.


“A National Study on Graduation Requirements and Diploma Options for Youth with
Disabilities,” National Center on Educational Outcomes, David R. Johnson and Martha
L. Thurlow, October, 2003,

“High Stakes Testing for Students: Unanswered Questions and Implications for Students
with Disabilities,” National Center on Educational Outcomes, Karen Langenfeld, Martha
Thurlow, and Dorene Scott, January, 1997

“Do High Stakes Graduation Tests Improve Learning Outcomes? Using State-Level
NAEP Data to Evaluate the Effects of Mandatory Graduation Tests,” The Harvard Civil
Rights Project, Monty Neill, Ed.D., Executive Director, National Center for Fair & Open
Testing (FairTest) and Keith Gayler, Harvard Graduate School of Education,

“State High School Exit Exams Put to the Test,” Center on Education Policy, August
2003, http://www.ctredpol.org/highschoolexit/1/exitexam4/pdf
“The Use of Tests When Making High-Stakes Decisions for Students:A Rsource Guide
for Educators and Policymakers,” United States Department of Education, Office for
Civil Rights, December, 1999.

“Errors in Standardized Tests: A Systemic Problem,” National Board on Educational
Testing and Public Policy,” Kathleen Rhoades and George Madaus, Lynch School of
Education, Boston College, May, 2003,

Oregon Department of Education Office of Assessment and Evaluation, Juried
Assessment Manual, 2003-2004, Guidelines for students using an alternate assessment
path to meet any of the CIM [Certificate of Initial Mastery] standards,



“None of the Above: Right Answer, Wrong Score: Test Flaws Take Toll,” Diana B.
Henriques and Jacques Steinberg, May 20, 2001 (originally in New York Times),

“None of the Above: When a Test Fails the Schools, Careers and Reputations Suffer,”
Jacques Steinberg and Diana B. Henriques, May 21, 2001 (originally in New York
Times), http://www.fairtest.org/nattest/times%20stories%205-01.html


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