By Marion M. Walsh, Esq., Littman Krooks LLP

By now, parents have heard the news.  On December 10, 2015, President Obama signed the Every Student Succeeds Act (“ESSA”), which reauthorizes the Elementary and Secondary Education Act and replaces the No Child Left Behind Act of 2001 (“NCLB”).  This represents a positive development for all students and gives states more flexibility in how to implement standardized assessments for children and continue to set high standards.    In truth, however, ESSA does not dramatically change the federal emphasis on standardized testing.

NCLB revolutionized education.  At its best, NCLB highlighted achievement gaps that many school districts tried to mask for years.  It fought “the soft bigotry of low expectations,” which remains pervasive for minority students, English Language Learners, economically disadvantaged students and students with disabilities.   At its worst, it created an inflexible and regimented system that required annual assessments each year and an unrealistic level of “adequate yearly progress” (AYP).  School and districts that could not make AYP had to implement corrective action plans.

The ESSA removes much of the teeth and corrective action behind NCLB, but the law essentially maintains the status quo, while strengthening important federal objectives. It’s important to note that the federal law still requires annual assessments for all students grades three to eight and one time in high school.

We have provided 10 basics that parents should know about ESSA and its changes and how they affect their children, particularly the most vulnerable children with disabilities. ESSA continues the strong alignment of NCLB with the Individuals with Disabilities Education Improvement Act and continues to push for scientifically based services and more assistive technology for students with disabilities.   We will provide more in the future as regulatory guidance becomes available.

1. ESSA Still Requires Yearly Standardized Assessments and Does Not Directly Address Opt-Outs

To emphasize, for elementary students the ESSA still requires annual standardized testing in reading and math in grades 3-8 (except states may except advanced math students from 8^th grade assessments).    For high school students, the law requires the administration of math, reading and science assessments, at least once between grades 9-12.  The law also requires school districts to administer science assessments not less than one time between grades 3-5, one time between 6-9 and one time between grades 10-12.

With an emphasis that was not codified in NCLB, ESSA requires that states’ measures of student achievement include measures that involve “higher order thinking skills and understanding,” and clarifies that they may be partially delivered in the form of “portfolios, projects and extended performance tasks.” ESSA also contains new specific language, not included in NCLB, that State measures of student achievement must provide for appropriate accommodations such as  the ability to utilize assistive technology for children with disabilities.

Keep in mind that ESSA does give school districts the autonomy to develop their own measures of standardized assessments, which are different than the state-approved assessments, but they must obtain approval from the state.    Districts must notify parents if they utilize assessments that are not state approved.

ESSA aspires to foster parental engagement in the assessment process by requiring school districts to post comprehensive information on assessments.  ESSA allows states and school districts to set policies on opting out to the state and local districts.  States and School districts must provide policies and procedures on parental right to opt out of student participation in assessments.  However, the federal requirement for 95% participation in tests will remain.

2. NCLB Does Not Eliminate the Common Core

Parents must also understand that ESSA does not affect whether states utilize the Common Core or administer Common Core-aligned assessments. NCLB never mandated the Common Core; it only required challenging academic achievement standards.    States led the effort to adopt the Common Core, based on research from the National Governors Association Center for Best Practices and the Council of Chief State School Officers.  However, because of Federal funding incentives in NCLB linked to challenging standards approved by the US Department of Education (USDOE), most states individually and voluntarily adopted the Common Core assessments. ESSA, based on recommendations from the States, continues to have flexibility in academic achievement standards.  The law prohibits the USDOE from forcing or encouraging states towards a particular set of standards or assessments.

3. ESSA Continues Disaggregation of Data from Subgroups

NCLB revolutionized education by requiring states and school districts to shine a light on the achievement of vulnerable subgroups and to disaggregate performance data for students.  In the past, school districts only had to report on students as a whole and could mask achievement gaps between subgroups.    States and school districts must still disaggregate assessment data based on: each major racial and ethnic group, economically disadvantaged students, children with disabilities, English proficiency status, gender and migrant status.    However, ESSA aspires to an inclusive focus for all students, as Title I of ESSA changes the language of NCLB to “improving basic programs operating by state and local educational agencies,” rather than “improving the academic achievement of the disadvantaged.”

4. ESSA Removes Most Corrective Measures for Schools and Districts

NCLB mandated corrective measures for schools that did not make adequate yearly progress for all students or for students in any subgroup.     ESSA has removed most of these corrective measures, which included school choice and supplementary educational services.   School districts, however, may offer public school choice if schools are in need of support.  Yet the law still requires that states monitor progress of students and notify schools if students or subgroups of students are underperforming and provide targeted support to improve student outcomes.   The law also no longer allows states and school districts to lump subgroups together to show adequate yearly progress.   However, for lack of compliance with provisions, states or school districts could still face a loss of funding and a state takeover.

5. ESSA Limits Alternate Assessments for Students with the Most Significant Cognitive Disabilities.

ESSA codified existing guidance from the USDOE on limiting the percentage of students who take alternate assessments based on alternate achievement standards.   The total number of students assessment in each subject using alternate assessments must not exceed 1% of the students in the State who are assessed in such subject.    Thus, for example, in a school district of 5,000 students, only 50 students should be tracked on alternate assessments.   The law requires that states and districts inform parents that their children will be taking alternate assessments and the consequences.   ESSA also requires that states must take steps to incorporate universal design for learning in alternate assessments.   The law further states that school districts may not prohibit students taking alternate assessments from attempting to complete the requirements for a full high school diploma.

6. ESSA Requires States and School Districts to Foster Parent and Family Engagement

NCLB required States and Districts to develop parental involvement plans, but ESSA has changed the language on parental involvement to require plans for parent and family engagement.   The shift is subtle but represents recognition that school districts should conduct greater outreach and should not aim just to involve families but engage them in the process of improving their school districts as active participants.   ESSA encourages school districts to engage in meaningful consultation with community stakeholders, such as business leaders, employers and philanthropic organizations, to effectively engage parents.

7. ESSA Emphasizes Preschool Education

The ESSA will allocate $250 million for preschool development grants for economically disadvantaged children, which will be funded by the Department of Health and Human Services and the USDOE.    The law states that providing early education programs is an allowable use of funds and encourages planning for transition from pre-K programs to elementary schools.  The law states that states and school districts can use Title II dollars (funds to prepare, train, and recruit high-quality educators) for early educators.  Districts can use these funds, for example, to provide programs and activities to increase “the knowledge base of teachers and principals on instruction in the early grades, and strategies to measure whether young children are progressing.”

8. ESSA Affirms Protection for Students who Are Homeless

The law amends the McKinney-Vento Homeless Assistance Act.  It requires review of any policy where compulsory residency requirements or other requirements may act as a barrier to the identification or enrollment of homeless children and youths in school and thus strengthens protections for students who are homeless.

9. ESSA Confirms Privacy Protections

The law requires that each State and District provide an assurance that they understand the importance of following the Family Educational Rights and Privacy Act (“FERPA”).  The law references FERPA in key provisions and emphasizes the need to keep testing and other data private.  It also encourages professional development to train school district staff on compliance with FERPA.

10. Law Prohibits Aiding and Abetting Sexual Abuse 

In a tacit recognition of the problem of sexual abuse in schools, ESSA requires that states and school districts have laws and policies prohibiting any school employee from helping a sexual predator find a new job.  Specifically, the law prohibits a school employee, agent or contractor from assisting another school employee, agent or contractor find a new job, if there exists probably cause to believe that such school employee or contractor engaged in sexual misconduct in violation of the law, unless such individual has been exonerated or the matter officially closed.

In general, it remains essential for parents and school districts to advocate for change with their states and school districts.  ESSA provides for increased flexibility, but real change will occur at the state and local level.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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By Nicole Garcia, MS.Ed., Educational Advocate

In New York, this week, students in grades 3-8 will take their English Language Arts and Math. As the testing season begins, the routine of school changes. The introduction of the Common Core State Standards (CCSS) has created even angst and frustration.   Governor Cuomo’s new accountability measures for teachers have created even more pressure for teachers and principals. Many parents believe that there exists too much emphasis on state testing. To help you navigate issues surrounding state testing for your child, we have provided some background.

The No Child Left Behind Act

In January 2002, President George W. Bush signed into law the No Child Left Behind Act of 2001 (NCLB), which represented a re-authorization of the Elementary and Secondary Education Act of 1965 (“ESEA”). NCLB required all states to develop assessments tests in basic skills to receive federal funds. School districts must administer assessments to all students (on selected grade levels) or risk losing federal funding. NCLB expanded the federal role in public education and increased accountability for teachers and schools. Students must be tested in science at least one grade in elementary, middle and high school. Depending on which state, testing occurs from February through April. NCLB is overdue for re-authorization (since 2007) and Secretary Duncan has proposed a blueprint, but Congress has not reauthorized the law yet.

New York Adopted Common Core State Standards as NCLB Assessments

Every state, including New York, has put in place testing and standards in core subjects to comply with NCLB requirements.  For ELA and math, New York, like most other states, adopted the CCSS in 2010 and first implemented the CCSS exams—as the NCLB assessments– in the Spring of 2013.   The CCSS aspire to create a “common core of standards that are internationally benchmarked, aligned with work and post-secondary education expectations, and inclusive of the higher order skills that students need…”   Essentially, the tests are aligned to prepare students for the skills measured by the ACT and SAT and prepare them for a globally competitive marketplace. Yet, in New York, students had to take the CCSS with little preparation and most teachers did not receive training, the first year that the tests were given. Only 33% of students in New York State achieved proficiency.

Supporters of the CCCS assessments believe the test provides a measure of accountability for what goes on in the classroom, as well as greater rigor. The more rigorous standards help students meet basic proficiency levels and to achieve skills to become “college and career ready.” Supporters also believe teachers will perform to ensure that children will be prepared and score well on the state test.

But many parents and educators have been highly critical of the exams.   They have observed that scores do not convey additional portions of the curriculum and do not include measurement of progress in enrichment programs. Critics contend that the tests do not measure whether a student is learning critical thinking skills or how engaged students are in the learning process.  Teachers have little time for other subjects. Recent accountability measures for teachers have exacerbated this pressure. Also, many parents are concerned that teachers “teach to the test” and must necessarily eliminate enriching opportunities and creative lessons from the curriculum.  More information about the CCSS can be found on the New York State Education Department website.

Most School Accountability Measures Have Been Waived in New York

In the past, schools and school districts that did not show students making adequate yearly progress (“AYP”) toward achieving proficiency could be subject to federal sanctions (e.g., offering school choice, loss of federal funds, possible complete restructuring of the school, or closing the school). In 2012, President Obama waived most of these sanctions for approximately 32 states, including New York. Yet each state still holds schools accountable for results. Test scores provide an indication of how students are performing and are reported by State Department of Education to compare groups of students from year to year.

New York State Alternative Assessment

Children with the most severe cognitive disabilities, as set forth in their Individualized Education Programs (IEPS), may take alternate assessments. In New York, students with alternate assessments on their IEP take the New York State Alternate Assessment (NYSAA). Students with severe cognitive disabilities may demonstrate their performance toward achieving the New York State P-12 CCSS in English language arts and mathematics on the NYSAA.

The Committee on Special Education (CSE) for each student will determine eligibility for participation in the NYSAA. Only a very small percentage of students should take alternative assessments. More information about NYSAA is available on the state education website at: http://www.p12.nysed.gov/assessment/nysaa/.

What Can Parents Do?

1. Know when and what testing will be offered. Don’t ignore the obvious step of understanding when and what testing your child will be taking. Testing begins this week in New York in Grades 3-8. School calendars should indicate when the tests are administered. In grades 3-8, each child will take the English Language Arts (ELA) and Mathematics assessments. Children will also take Science and Social Studies assessments, in fourth and fifth grades and may again take it in eighth grade. Speak with your teacher in the beginning of the year to find out.

2. Reassure your child to prevent stress.   Parents should keep their children calm and prevent any stress and anxiety.   The CCCS assessments should not be a primary or major factor in any promotion decisions, so parents should reassure their children.

3. In the fall, ask for an information session on the test and the results from the prior year. Because New York State does not release the results of assessments to school districts and parents until the following school year, many parents may forget to follow up. When you receive the assessment results, ask the school principal to hold an information session about the test and the results. Parents may misunderstand the purpose of these assessments and how to read the results. An educator would be able to clarify in “parent terms” what the results mean. Once parents are given clarity about the assessments, they may have a better understanding of their child’s strengths and areas of need.

4. Become educated on the assessments and support available. Parents should reach out to their child’s teacher to find out if he or she will be offering extra support for testing. This may include more homework or staying after school. The parent can correspond by email and sending a letter to school, or leaving a message for the teacher with the office. Parents can find out if their child is entitled to Academic Intervention Services (AIS). AIS is designed to help students achieve the learning standards in ELA and mathematics and supplements the general curriculum. AIS can be given throughout the day or after school. New York State has provided Guidance  on cut scores to school districts on when they must offer AIS services, since most students in New York State are not yet proficient on the CCCS. Parents should also become educated on the goals of the assessments and support the skills measured by the CCSS. Guidance for parents and families on the CCCS is available.

5. Consider whether your child should opt out of testing. Today, more parents are considering this option.  School districts discourage opting out, as schools must show a certain level of participation on the exams or could risk state funding and educators are concerned about the lack of assessment data.   Parents should work with their local PTA/PTSA to find out information on removing their child from state testing. Review carefully the pros and cons of opting out. Many advocacy groups have set forth information on opting out.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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By Marion Walsh, Esq., Littman Krooks LLP

Last week, New York State students participated in the English Language Arts assessments.  Math assessments will occur Wednesday, April 30 – Friday, May 2.   This is the second year that students in New York will take assessments based on Common Core Learning Standards (CCLS).  Westchester County Executive Rob Astorino has stated publically that he planned to have his children opt-out of these assessments.

Before making the same decision for your child, you should understand the purpose of the tests and any consequences of opting out for your child.

CCLS is Required in New York as Part of Assessment Scheme

The CCLS assessments represent only one part of required No Child Left Behind Act (NCLB) testing.  NCLB requires states to administer tests in English Language Arts (ELA) and Mathematics in grades 3-8 and at least once in grades 10-12. It also requires states to administer testing in Science at least once during grades 3-5, 6-9 and 10-12.  In New York, the State Education Department Office of State Assessment coordinates, develops, and implements the assessment program.  New York implemented CCLS as part of NCLB assessments last year. The tests primarily at issue in the opt-out movement include testing in ELA and Mathematics for grades 3-8, as it is only these assessments that incorporate CCLS at this time.

There are consequences for your school district if the district does not meet testing participation rates. NCLB requires a 95% rate for all students and subgroups or the district could lost Title I funding.

Understand Your Rights

Most school districts will respect your right to have your child decline to take the assessments.   As a matter of terminology, legally, New York State does not have a statutory opt-out provision and there exists no right to opt-out.  New York State law does not require parental consent before school districts administer building level assessments to the general population.

Consider the impact of Opting Out

Before you decide to have your child opt-out, consider the impact of that decision on your child. On the one hand, the decision may empower your child and send an important statement.

Keep in mind that the Common Core now constitutes the general curriculum in New York and, in order to advance from grade to grade and achieve a high school diploma, your child will have to progress in this curriculum.   If your child is struggling on Common Core assessments, you will need data to present to his/her teacher to get needed support or services.  School districts also need to know how students are doing in order to improve these tests, improve the curriculum and improve student performance. The school and the parents need all the evidence they can get on what is working and not working, particularly for children who are struggling in school.   If your child has a disability or you believe that your child may have a disability, it can be even more important to get this data.   The Common Core assessments have lofty aspirations and many problems but educators cannot improve the assessments without data.

Make certain that the decision to opt-out will not negatively impact your child. Understand that your child has been working toward these assessments for the year.  Telling your child not to take them may devalue their work in school.

Your child will be taking many different types of assessments for many years, such as the SAT and ACT and, possibly, tests for admission to professional schools (MCAT, LSAT).  You may prefer to have your child to learn coping skills on difficult tasks rather than opting out.   In addition, opting out of the assessments could also impact your child’s placement and services for the following year.

Before having your child opt-out, consider the following steps:

1. Talk to your child’s teacher and the school principal about the reasons you do not want your child to take the assessments and ask about more support.
2. Understand the consequences for your child and the school district.
3. Make certain that opting out will not make your child more anxious by feeling singled out.

As an Alternative, Consider Advocacy:

New York State has indicated that it wishes to receive guidance and input on improving common core assessments and wants to hear from parents. The State Board of Regents has already adjusted the implementation of the CCLS in New York and will continue to do so.