Order Code RL32913
CRS Report for Congress
Received through the CRS Web
The Individuals with Disabilities Education Act
(IDEA): Interactions with Selected Provisions
of the No Child Left Behind Act (NCLBA)
Updated June 15, 2005
Richard Apling
Specialist in Social Legislation
Domestic Social Policy Division
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
The Individuals with Disabilities Education Act (IDEA):
Interactions with Selected Provisions
of the No Child Left Behind Act (NCLBA)
Summary
The Individuals with Disabilities Education Act (IDEA) and the No Child Left
Behind Act (NCLBA) are two of the most significant federal statutes relating to
education. Although both have the goal of improving education — IDEA for
children with disabilities and NCLBA for all children — the two statutes take
different approaches. IDEA focuses on the individual child, with an emphasis on
developing an individualized education program (IEP) and specific services for
children with disabilities, while NCLBA takes a more global view, with an emphasis
on closing gaps in achievement test scores and raising the aggregate scores of all
demographic groups of pupils to specific levels.
On December 4, 2004, President Bush signed P.L. 108-446, which reauthorized
and amended IDEA. Among other things, P.L. 108-446 was aimed at better
coordinating special education with the requirements of NCLBA. Most of these
changes to IDEA become effective on July 1, 2005, for school year 2005-2006.
The relationship of IDEA and NCLBA has become of increasing significance
because of this recent reauthorization of IDEA and guidance from the U.S.
Department of Education (ED) on NCLBA issues related to the education of children
with disabilities. This report will provide a brief overview of IDEA and NCLBA, a
discussion of the intersection of selected provisions of IDEA and NCLBA, and a
discussion of ED regulations and guidance regarding IDEA and NCLBA. The report
concludes with a discussion of possible issues related to the interaction of IDEA and
NCLBA.
This report will be updated to reflect major congressional action or major
regulatory actions by ED.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of Selected IDEA and NCLBA Provisions . . . . . . . . . . . . . . . . . . . . . . 2
Overview of NCLBA and IDEA Assessment and Accountability
Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NCLBA Assessment and Accountability Requirements . . . . . . . . . . . . 3
ED NCLBA Regulatory Requirements . . . . . . . . . . . . . . . . . . . . . . . . . 5
Spring 2005 Policy Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Summary of NCLBA Assessment Requirements . . . . . . . . . . . . . . . . . 7
IDEA Assessment and Accountability Requirements . . . . . . . . . . . . . . . . . . 8
IDEA Assessment Requirements in the IEP . . . . . . . . . . . . . . . . . . . . . 8
IDEA State and Local Requirements on Student Achievement . . . . . . . 9
NCLBA and IDEA Teacher Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
NCLBA Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IDEA Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
IDEA State and Local Personnel Requirements . . . . . . . . . . . . . . . . . 17
Department of Education Non-Regulatory Guidance Regarding IDEA and
NCLBA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Public School Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Supplemental Educational Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Selected Issues and Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Exclusion of Children with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Highly Qualified Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Enforcement of the No Child Left Behind Act . . . . . . . . . . . . . . . . . . . . . . 21
List of Tables
Table 1. Comparison of Definitions of “Highly Qualified” Teachers
Under the Elementary and Secondary Education Act (ESEA) and
Under the Individuals with Disabilities Education Act (IDEA) . . . . . . . . . 15
The Individuals with Disabilities Education
Act (IDEA): Interactions with Selected
Provisions of the No Child Left Behind Act
(NCLBA)
Introduction
The Individuals with Disabilities Education Act (IDEA)1 and the No Child Left
Behind Act (NCLBA)2 are two of the most significant federal statutes relating to
education. Although both have the goal of improving education — IDEA for
children with disabilities and NCLBA for all children — the two statutes take
different approaches. IDEA focuses on the individual child, with an emphasis on
developing an individualized education program (IEP) and specific services for
children with disabilities, while NCLBA takes a more global view, with an emphasis
on closing gaps in achievement test scores and raising the aggregate scores of all
demographic groups of pupils to specific levels.
On December 4, 2004, President Bush signed P.L. 108-446, which reauthorized
and amended IDEA. Among other things, P.L. 108-446 was aimed at better
coordinating special education with the requirements of NCLBA. Most of these
changes to IDEA become effective on July 1, 2005, for school year 2005-2006.
The relationship of IDEA and NCLBA has become of increasing significance
because of the recent reauthorization of IDEA and guidance from the U.S.
Department of Education (ED) on NCLBA issues related to the education of children
with disabilities. This report will provide a brief overview of IDEA and NCLBA, a
discussion of the intersection of selected provisions of IDEA and NCLBA, and a
discussion of ED regulations and guidance regarding IDEA and NCLBA. The report
concludes with a discussion of possible issues related to the interaction of IDEA and
NCLBA.
1 20 U.S.C. §1400 et seq.
2 P.L. 107-110, codified in part at 20 U.S.C. §6301 et seq., §6601 et seq., §6801 et seq.,
§7101 et seq., §7201 et seq., §7301 et seq., §7401 et seq., §7702, §7703, §7707, §7709,
§7714, §7801 et seq.
CRS-2
Overview of Selected IDEA and NCLBA Provisions
IDEA is the major federal law dealing with the education of children with
disabilities. In addition to authorizing funds to help states and local educational
agencies (LEAs) provide special education and related services, IDEA requires the
provision of a free appropriate public education (FAPE) for children with disabilities,
specifying in some detail the provision of services for these children,3 and grants
certain procedural rights to these children and their parents.
One of the major changes to IDEA resulting from the 1997 amendments (P.L.
105-17) involved a series of additions to the act aimed at improving the education of
children with disabilities, as well as continuing to ensure their access to free
appropriate public education. At the child level, this involved various requirements
in the individualized education program linking each child’s education to the general
curriculum and to statewide and districtwide achievement test programs. In addition,
various requirements were added for states and local educational agencies related to
the educational performance of children with disabilities and to improving the quality
and quantity of those who teach children with disabilities. P.L. 108-446 continued
this approach and added provisions to align IDEA with NCLBA requirements.
The No Child Left Behind Act of 2001 (P.L. 107-110) reauthorized the
Elementary and Secondary Education Act (ESEA) and, in doing so, added
requirements aimed at improving the education of all public elementary and
secondary school children, including those with disabilities. Although many of these
requirements directly affect Title I-A of ESEA, aimed mainly at improving education
for disadvantaged children, important requirements impact any state or LEA that
receives Title I-A funds4 and apply to all children served by such states or LEAs.
In addition, NCLBA continues Title I schoolwide projects for schools serving
relatively high percentages of children from low-income families. These projects
allow for consolidation of federal education funds (including Title I-A and IDEA
funds) to serve all children in a qualifying school. Thus some NCLBA requirements
that might apply only to activities or individuals funded under Title I-A (for example,
Title I teachers and paraprofessionals) can apply to all activities and individuals in
schoolwide project schools (for example, all applicable teachers and
paraprofessionals — including applicable special education teachers and
paraprofessionals).5
3 Among the key requirements of services for children with disabilities are that each child
must have an individualized education program (IEP) devised by a team, which includes
both school personnel and the parents, and that children must be educated with their non-
disabled peers “to the maximum extent appropriate.”
4 Currently all states and a vast majority of LEAs receive Title I-A funding.
5 For further information on NCLBA in general, see CRS Report RL31284, K-12 Education:
Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by Wayne
Riddle.
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Overview of NCLBA and IDEA Assessment
and Accountability Requirements
Overview. NCLBA requires that all states have in place a single state
accountability system aimed at reducing achievement gaps between higher-achieving
students and lower-achieving students, including those children with disabilities who
are lower-achieving. NCLBA permits use of alternative standards-based assessments
for children with disabilities for whom the statewide assessment is inappropriate.
Final regulations, issued in December 2004, clarified that relatively small groups of
the most severely cognitively disabled students (1% of all children tested) can meet
the requirements of the statewide system based on alternative achievement standards.
That is, their scores of “proficient” or “advanced,” based on alternative assessments
and alternative achievement standards, may be counted as such in adequate yearly
progress determination as discussed below. In April 2005, the Secretary of Education
announced a new policy that would permit other children with disabilities who
experience “persistent academic difficulties” (an additional 2% of those tested) to
meet achievement requirements based on “modified achievement standards.” All
other children with disabilities must be assessed based the same achievement
standards that non-disabled children are assessed on (although some of these children
with disabilities may be assessed with alternative assessments).
NCLBA Assessment and Accountability Requirements.6 NCLBA
requires that all states receiving Title I-A funds (currently all states) must have in
place by school year 2005-2006 standards-based assessments in reading and
mathematics for all students in grades 3-8 and standards-based assessments in
science by school year 2007-2008. For children with disabilities for whom these tests
(even with accommodations) are inappropriate, states must provide one or more
alternative assessments.
NCLBA requires that states have in place a statewide accountability system
based on standards of adequate yearly progress (AYP) aimed at reducing
achievement gaps between high-achieving and low-achieving students. These
standards must be applied to specified groups, including children with disabilities,7
as well as to all students in each public school, LEA, and state as a whole. The
ultimate goal of these state systems is that all students reach proficient or advanced
levels of achievement by school year 2013-2014.
6 For further information on NCLBA testing and accountability requirements, see CRS
Report RL31407, Educational Testing: Implementation of ESEA Title I-A Requirements
Under the No Child Left Behind Act; CRS Report RL31487, Education for the
Disadvantaged: Overview of ESEA Title I-A Amendments Under the No Child Left Behind
Act; Adequate Yearly Progress (AYP): Implementation of the No Child Left Behind Act, all
by Wayne C. Riddle.
7 Other specified groups are economically disadvantaged pupils, limited English proficient
(LEP) pupils, and pupils in major racial and ethnic groups.
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AYP standards must be applied to all public schools8 and LEAs in states
receiving ESEA Title I-A funds; however, certain actions — particularly the
corrective actions described in the remainder of this paragraph — have to be applied
only to schools and LEAs receiving Title I-A funds.9 Applicable schools that fail to
meet AYP standards over two consecutive years must be identified as requiring
improvement. Technical assistance is provided to those schools, and public school
choice must be offered to pupils of such schools for the next school year. Choice of
schools must only include those not identified for improvement.10 Following three
consecutive years of failure to meet AYP, pupils from low-income families must be
offered the opportunity to obtain supplementary services from approved providers,
which could include public or private schools, as well as non-profit and for-profit
8 A school must assess at least 95% of relevant pupils — both all pupils and those in each
identified subgroups — in order to meet AYP standards.
9 A large majority of LEAs receive funding under Title I-A. Only those LEAs with very few
poor children (fewer than 10) or very low poverty rates (under 2%) do not qualify.
However, even in LEAs receiving Title I-A funding, approximately 60% of all public
schools qualify for Title I-A funding.
10 ED comments with respect to final NCLBA regulations specify the following regarding
public school choice for children with disabilities:
Under the IDEA, a change in the location of delivery of services, in and of itself,
does not trigger the “change of placement” procedures of the IDEA. The LEA
can allow the school of choice either to implement the IEP that the prior school
developed for the new school year, or convene an IEP team meeting and develop
a new IEP that meets the student’s needs. If the LEA adopts the student’s
existing IEP, none of the “change of placement” procedures apply. However, the
school district must comply with the “change of placement” requirements of the
IDEA if the new IEP will change either the services in the IEP or the extent to
which the student will participate with nondisabled students in academic and
nonacademic activities. Similar rules apply to students who are covered only by
Section 504 and Title II of the ADA [the Americans with Disabilities Act].
LEAs are not required to offer students with disabilities the same choices of
schools as are offered to nondisabled students, but may match the abilities and
needs of a student with a disability, as indicated on the student’s IEP, to those
schools that have the ability to provide FAPE to the student. However, school
districts must offer students with disabilities and those eligible under Section 504
and Title II of the ADA the opportunity to be educated in an eligible school,
namely, a school that has not been identified for school improvement, corrective
action, or restructuring and that has not been identified by the State as
persistently dangerous. Like other students, students with disabilities and those
covered by Section 504 and Title II of the ADA must have the opportunity to
express a preference among at least two eligible schools and that preference must
be considered by the school district in making their assignment. 67 Federal
Register 71756, Dec. 2, 2002.
See also the non-regulatory guidance issued by ED regarding public school choice,
discussed infra at pp. 17-18.
CRS-5
providers.11 Following five consecutive years of failure, the school must be subject
to “restructuring.” For example, staff could be replaced, or the school could be
converted to a charter school. Similar procedures apply to LEAs that fail to meet
AYP standards. In addition to these corrective actions, states may reward schools
that significantly close achievement gaps among various groups or exceed AYP for
two or more consecutive years.12
With respect to children with disabilities (and other specified groups), each
group must meet or exceed the state’s annual measurable objectives unless a
particular group is of insufficient size to produce statistically valid results or if
privacy rights would be violated.13 In addition, a school or LEA may still meet AYP
standards even if some groups (such as children with disabilities) do not, if the
percentage of the group that is below the proficient level declines by 10% or more
compared to the previous year’s percentage and the group makes sufficient progress
on at least one other indicator.
ED NCLBA Regulatory Requirements. On December 9, 2003, ED issued
a final rule amending the regulations governing Title I of the Elementary and
Secondary Education Act (ESEA) to clarify school accountability for the academic
achievement of students with the most significant cognitive disabilities.14 The rule
emphasizes that all students — including all children with disabilities — are to be
assessed in relationship to the state’s established academic content standards. At the
same time, students may be assessed by different means. Thus the rule clarifies that
the achievement of most children with disabilities will be measured against a state’s
grade-level achievement standards for accountability purposes, while only those with
the most significant cognitive disabilities would be measured against alternative
achievement standards aligned with the state’s academic content standards and
11 ED notes that:
For a student with disabilities, the supplemental educational services agreement
must include a statement of specific achievement goals for the student, a
description of how the student’s progress will be measured, and a timetable for
improving achievement, that are consistent with the student’s IEP.
In addition, ED notes that:
supplemental educational services [must] be “consistent” with IEPs and Section
504 services, but these services are provided in addition to the instruction and
services provided during the school day under the IEP or Section 504 plan and
are not considered part of IEPs or Section 504 plans. 67 Federal Register 71757,
Dec. 2, 2002.
12 See below for a discussion non-regulatory guidance regarding how public school choice
and supplementary services apply to children with disabilities.
13 In states that set minimal group size at a relatively high level, there may be many schools
in which the students-with-disabilities group is too small to actually be included in AYP
determinations.
14 68 Federal Register 68698, Dec. 9, 2003.
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reflecting the professional judgment of the highest learning standards possible for the
students.
The rule would allow states to use test scores based on alternative achievement
standards for students with the most significant cognitive disabilities to calculate
adequate yearly progress (AYP) as long as the percentage of these students at the
school district or state level who are counted as “proficient” or “advanced” does not
exceed 1% of all students assessed (or about 9% of all children with disabilities
according to ED).15 However, if a school district or state can document that the
number of students with the most significant cognitive impairments exceeds 1%, the
district could be permitted to request an exception from the state or the state could
request an exception from ED. The final rule provides some flexibility to states in
defining children eligible for alternative assessments. The rule requires states to
“establish and ensure implementation of clear and appropriate guidelines for
individualized education program (IEP) teams to apply in determining when a child’s
significant cognitive disability justifies assessment based on alternative academic
achievement standards”16
Spring 2005 Policy Announcements. On April 7, 2005, the Secretary of
Education announced additional flexibility in ED’s AYP policy.17 In addition to
permitting up to 1% of tested students to meet AYP by achieving proficiency on
alternative achievement standards, an additional 2% of tested students18 can meet
AYP by achieving proficiency on “modified achievement standards.” ED released
further specifics on May 10, 2005,19 which focused mainly on short-term options, and
proposed regulations have been promised “in the near future,” which will focus more
on long-term options.
In general, this policy is aimed at “students with persistent academic disabilities
and served under the Individuals with Disabilities Education Act ... who are not
likely to reach grade-level achievement because of their disability in the same
timeframe as all other students, but who can make significant progress.” The
Secretary reiterated that proficiency for all other children with disabilities (other than
those who fall under the 1% and 2% caps) “will be measured against grade-level
achievement standards.” In all cases, the individualized education program (IEP)
teams (discussed below) will continue to make the decision about which children
with disabilities will take which assessment.
15 The 1% cap does not apply to individual schools within a school district. If some schools
exceed the cap, other schools would have to have lower caps so that the percentage of all
students reaching proficiency based on alternative standards did not exceed 1% of all
students tested within the LEA.
16 68 Federal Register 68702, Dec. 9, 2003.
17 Summaries of the Secretary’s announcement may be found at [http://www.ed.gov/
news/pressreleases/2005/04/04072005.html] for the press release, and [http://www.ed.gov/
policy/elsec/guid/raising/alt-assess-long.html] for the “full version” of the policy.
18 As with the 1% cap, the 2% cap does not apply to individual schools.
19 See [http://www.ed.gov/news/pressreleases/2005/05/05102005.html].
CRS-7
The May 10 announcement provides short-term or transition options that states
may use for this year only. The first transition option is for eligible states (see below
for criteria) that have not developed modified achievement standards. These states
can calculate “a proxy” percentage that then is added to the percentage of students
with disabilities whose assessment scores were proficient or advanced. This
approach can be applied only to schools or LEAs that failed to meet AYP due solely
to scores of students with disabilities. (That is, all other subgroups of students and
students as a whole did meet AYP.) If the proxy percentage, when added to the
percentage of proficient/advanced students, reaches the current-year threshold for
AYP (known as the annual measurable objective, or AMO), then the school or LEA
is now deemed to have achieved AYP.
The second transition option is for eligible states that have establish modified
achievement standards. This approach is similar to that followed for students
assessed against alternative achievement standards. Up to 2% of the students tested
may be deemed to have made AYP if their results as measured against the modified
standards are proficient or advanced. The May 10th announcement explicitly states
that “out-of-level assessments do not qualify as assessments based on modified
achievement standards.”20
States wishing to take advantage of the new policy “must develop modified
achievement standards and improved alternative assessments as well as agree to
several activities related to assessment, accountability, professional development, and
training for IEP team members and teachers.” To be eligible for this flexibility in the
short term, states must meet relevant Title I and IDEA assessment and instructional
requirements. These include meeting or exceeding the 95% participation rate for
students with disabilities in the AYP determination process; providing appropriate
assessment accommodations for these students; providing alternative assessments for
those students with disabilities for whom the regular assessment (even with
accommodations) is inappropriate; and requiring that the minimum size of the
subgroup for students with disabilities (for ensuring statistical precision and
preserving confidentiality) is the same as that for other groups of students.
To assist states, ED plans to provide “needed resources to improve instruction,
assessments, and accountability for all students with disabilities.” Reportedly, $14
million has been set-aside for these purposes for assessment, instruction, and
research.21
Summary of NCLBA Assessment Requirements. In general, the final
rule together with the policy announcement in spring 2005 divides the assessment of
children with disabilities into five groups:
! students assessed with regular assessments based on the grade-level
achievement standards,
20 See [http://www.ed.gov/policy/elsec/guid/raising/disab-options.html].
21 See [http://www.ed.gov/policy/elsec/guid/raising/disability-alt-assess.html].
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! students assessed with regular assessments (with accommodations,
such as testing in a quiet location) based on the grade-level
achievement standards,
! students assessed with alternative assessments based on the grade-
level achievement standards,
! students assessed with alternative assessments based on modified
achievement standards (“proficient” or “advanced” scores on such
tests limited to 2% of all children tested), and
! students assessed with alternative assessments based on alternative
achievement standards (“proficient” or “advanced” scores on such
tests limited to 1% of all children tested).
IDEA Assessment and Accountability Requirements
IDEA Assessment Requirements in the IEP. A key component of the
provision of special education is the IEP, which is based on “a written statement for
each child with a disability” developed, reviewed, and revised by the IEP team. In
addition to specifying the special education and related services the child will
receive, the IEP must peg the child’s educational goals to the LEA’s general
educational goals for nondisabled students, presumably including AYP standards.
The IEP must assess the child’s current level of educational and functional
performance, including how the child’s disability impacts his or her “involvement
and progress in the general educational curriculum.” The IEP must specify the
child’s needs (and how those needs will be met) so that the child can be involved in
and progress in the general school curriculum. Progression must be gauged in terms
of annual measurable goals, presumably including progress in reaching proficiency
on state standards. In addition to annual goals, short-term objectives and benchmarks
are required only for those children with disabilities “who take alternate assessments
aligned to alternate achievement standards.”22 Finally, parents must be regularly
informed on the child’s progress (for example, by report cards) at least as frequently
as other parents are informed of their children’s progress.
As discussed below, IDEA requires states and LEAs to ensure the involvement
of children with disabilities in statewide and districtwide assessments. It is the IEP
team that determines the extent to which the child requires accommodations23 to
participate in these assessments or, alternatively, determines and justifies why the
child is to take an alternative assessment.24
22 Presumably this refers to the severely cognitively disabled as discussed above with respect
to NCLBA regulations.
23 To accommodate a child’s disability, he or she might be allowed to take the assessment
in an alternative, quiet location or might be read test questions and provide verbal responses,
rather than marking an answer sheet.
24 While each IEP team determines whether an individual child with a disability is to be
assessed on modified or alternative achievement standards, such determinations do not
influence how many children may demonstrate AYP based on modified or alternative
standards. As discussed above, ED policy sets percentage caps on these AYP
determinations.
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Despite the various goals and measures required for the IEP, ED has clarified
that the IEP does not guarantee educational progress.
It continues to be necessary to make clear that the IEP is not a performance
contract and does not constitute a guarantee by the public agency and the teacher
that a child will progress at a specified rate. Despite this, public agencies and
teachers have continuing obligations to make good faith efforts to assist the child
in achieving the goals and objectives or benchmarks listed in the IEP, including
those related to transition services.25
IDEA State and Local Requirements on Student Achievement. IDEA
requires states and LEAs to involve children with disabilities in statewide and
districtwide assessment programs, with accommodations as appropriate. In addition,
states (and LEAs with respect to districtwide assessments) are required to have
guidelines for assessment accommodations and for alternative assessments for those
unable to participate in such assessments. Alternative assessments must be “aligned
with the State’s challenging academic content standards and challenging student
academic achievement standards” as required by NCLBA.
States are required to report the numbers of children with disabilities
participating in regular and in alternative assessments together with these children’s
performance on such assessments (if so doing would be “statistically sound” and
would not violate confidentiality requirements). These reports to the public are to be
made “with the same frequency and in the same detail as [a state] reports on the
assessment of nondisabled children.” IDEA requires LEAs to provide states with all
information necessary for the state to comply with these requirements.
IDEA requires states to establish performance goals and indicators for children
with disabilities. These goals and indicators are aimed at promoting the overall
purposes of the Act. In addition, they must be the same as the state’s definition of
AYP under ESEA, as discussed above and address dropout and graduation rates of
children with disabilities, as well as other factors that the state might identify. States
must report annually to the Secretary of Education and to the general public on
progress towards meeting these goals. Such reporting requirements may be tied in
with reporting requirements under ESEA.26
NCLBA and IDEA Teacher Requirements
Overview. The ESEA, as amended by NCLBA, requires that each state
educational agency (SEA) receiving ESEA Title I, Part A funding (compensatory
education of disadvantaged students)27 must have a plan to ensure that all public-
school teachers teaching in core academic subjects28 within the state will meet the
25 64 Federal Register 12598, Mar. 12, 1999.
26 ESEA §1111(b)(2)(C)(v)(II)(cc).
27 Recall that all states currently receive ESEA Title I-A grants.
28 Core subjects are defined as “English, reading or language arts, mathematics, science,
(continued...)
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definition of a “highly qualified” teacher, by no later than the end of the 2005-2006
school year.29
IDEA, as amended by P.L. 108-446, cross-references the ESEA “highly
qualified” definition but makes several additions to the definition as it applies to
special education teachers. The new IDEA definition requires that all special
education teachers — not just those who teach core subjects — must meet certain
requirements. In addition, P.L. 108-446 modifies the ESEA requirements with
respect to two groups of special education teachers: those who teach only the most
severely disabled children and those who teach more than one core subject.
NCLBA Requirements.30 The NCLBA “highly qualified” definition applies
to public school teachers who teach core subjects and differentiates between new and
veteran teachers and between elementary and middle/secondary school teachers. To
be highly qualified, a public elementary or secondary school teacher must meet
the following requirements:
! Every public elementary or secondary school teacher, regardless
of whether he or she is new or experienced, (1) must have full state
certification (a charter school teacher must meet the requirements in
the state charter school law), (2) must not have had any certification
requirements waived on an emergency, temporary, or provisional
basis, and (3) must have at least a baccalaureate degree.
! Each new public elementary school teacher must pass a rigorous
state test demonstrating subject knowledge and teaching skills in
reading, writing, math, and other basic elementary school curricular
areas (such tests may include state certification exams in these
areas).
! Each new public middle or secondary school teacher must
demonstrate a high level of competency in all subjects taught by (1)
passing rigorous state academic tests in those subjects (may include
state certification exams in those subjects), or (2) completing an
academic major (or equivalent course work), graduate degree, or
advanced certification in each subject taught.
! Each experienced public elementary, middle, or secondary
school teacher must meet (1) the requirements just described for a
new teacher (depending upon his or her level of instruction), or (2)
28 (...continued)
foreign languages, civics and government, economics, arts, history, and geography.” ESEA
§9101(11).
29 The relevant sections of ESEA are §1119 regarding qualifications for teachers and
paraprofessionals, and §9101(23), the definition of “highly qualified.”
30 This section was adopted from CRS Report RL30834, K-12 Teacher Quality: Issues and
Legislative Action, by James B. Stedman.
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demonstrate competency in all subjects taught using a “high
objective uniform state standard of evaluation” (HOUSSE).31
As part of this plan, each Title I-funded state must establish annual measurable
objectives for each local educational agency (LEA) and school that, at a minimum,
include annual increases in the percentage of highly qualified teachers at each LEA
and school to ensure that the 2005-2006 deadline is met, and an annual increase in
the percentage of teachers receiving high quality professional development.
Each LEA receiving Title I, Part A funding must have a plan to ensure that all
of its teachers are highly qualified by the 2005-2006 deadline. In addition, beginning
with the first day of the 2002-2003 school year, any LEA receiving Title I funding
must ensure that all teachers hired after that date who are teaching in Title I-
supported programs are highly qualified.
Questions have been raised about the scope of the application of these
requirements, the meaning of some of the requirements, and the ability of different
kinds of districts to meet them. The U.S. Department of Education (ED) has sought
to address some of these concerns through regulation, non-regulatory guidance, and
other means. Early in the implementation of these provisions some asked whether
they apply to all teachers, including special education teachers, or those not teaching
core academic subjects. Final regulations for the Title I program — published
December 2, 2002, in the Federal Register — apply these requirements only to core
academic subject teachers. ED noted that these requirements would apply to a
special education teacher providing instruction in a core academic subject.
In March 2004, ED announced that additional flexibility could be applied in the
implementation of these requirements with regard to teachers in small rural school
districts, science teachers, and to teachers teaching multiple subjects.32
! For small rural districts, ED now provides that teachers teaching
core academic subjects who meet the highly qualified requirements
in at least one of the subject areas they teach may have an additional
three years to meet these requirements in the other subjects they
might teach. States decide whether to offer this flexibility to eligible
rural districts.
! For science teachers, states determine whether science teachers need
to be highly qualified in each science field they teach (e.g., biology
31 Among requirements, the state-set HOUSSE must provide objective information about
teachers’ content knowledge in all subjects taught; be aligned with challenging state
academic and student achievement standards; be applied uniformly statewide to all teachers
in the same subjects and grade levels; and consider, but not be based primarily on, time
teaching those subjects. It may use multiple measures of teacher competency.
32 A two page fact sheet on these new policies is available at [http://www.ed.gov/nclb/
methods/teachers/hqtflexibility.html]. A more detailed letter to each of the chief state
school officers, dated Mar. 31, 2004, is available at [http://www.ed.gov/policy/elsec/
guid/secletter/040331.html].
CRS-12
and chemistry) or highly qualified in science in general, based on
how the state currently certifies teachers in these subject areas.
! For teachers of more than one core subject, ED allows states to
design their HOUSSE procedures to allow a teacher to go through
the process a single time to demonstrate competency in multiple
subjects.
IDEA Requirements. P.L. 108-446 links its definition of “highly qualified”
(§602(10)) to the definition in §9101(23) of the ESEA but modifies that definition
as it applies to special education teachers. Most notably, it addresses concerns that
have been raised about certain groups of special education teachers, such as those
who teach more than one core academic subject.33
As noted above, the ESEA definition of “highly qualified” applies only to
teachers of core academic subjects and differentiates between new and veteran
teachers and between those teaching at the elementary level and above the elementary
level. Thus, under ESEA, the “highly qualified” definition would have applied only
to those special education teachers who teach core subjects (albeit this is probably
most special education teachers).
P.L. 108-446 provides additional requirements and options to the definition with
respect to special education teachers.34 (See Table 1 below for a summary of these
requirements.) First of all, to be highly qualified under IDEA, all special education
teachers (whether they teach core subjects or not) must hold at least a bachelor’s
degree and must obtain full state special education certification or equivalent
licensure (§602(10)(B)). Special education teachers who have emergency,
temporary, or provisional certification do not meet the IDEA definition. In addition,
P.L. 108-446 modifies the ESEA requirements with respect to two groups of special
education teachers: those who teach only core subjects exclusively to the most
severely disabled children and those who teach more than one core subject. (If
the teachers in these two groups meet the IDEA criteria, they are considered to have
met the ESEA requirements.)
Both new and veteran special education teachers who teach core subjects
exclusively to children with disabilities who are assessed against alternative
achievement standards under ESEA (i.e., the most severely cognitively disabled)35
can, of course, meet the definition of highly qualified by meeting their applicable
ESEA standards.36 Alternatively, new, as well as veteran, teachers of these students
33 P.L. 108-446 cross-references the ESEA definition of “core subjects” (§602(4)).
34 P.L. 108-446 does not amend the ESEA definition of “highly qualified.”
35 As discussed above, the ESEA requires that nearly all students must be held to the same
high state achievement standards. One exception with respect to children with disabilities
is that those who are the most severely cognitively disabled can be held to alternative
achievement standards.
36 That is, special education teachers at the elementary level can passing a rigorous state
subject matter and teaching skills test, and special education teachers at the middle school
(continued...)
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at the elementary level may meet the highly qualified definition by demonstrating
“competence in all the academic subjects in which the teacher teaches based on a
high objective uniform State standard of evaluation” (i.e., HOUSSE).37 Teachers of
these students at levels above elementary school can meet the definition by
demonstrating “subject matter knowledge appropriate to the level of instruction ... as
determined by the State, needed to effectively teach to those standards [i.e.,
alternative achievement standards]” (§602(10)(C)(ii)).
New and veteran special education teachers who teach two or more core
subjects exclusively to children with disabilities may qualify as highly qualified by
meeting the requirements in each core subject taught under applicable ESEA
provisions. Alternatively veteran special education teachers teaching two or more
core subjects may also qualify as highly qualified based on the ESEA HOUSSE
option (§602(10)(D)(ii)), which may include a single evaluation covering multiple
subjects.38 Finally, newly hired special education teachers teaching two or more
core subjects who are already highly qualified in mathematics, language arts, or
science are given two years from the date of employment to meet the highly qualified
definition with respect to the other core subjects taught. This could occur through
the HOUSSE option (§602(10)(D)(iii)). This two-year window is the only exception
to the 2005-2006 deadline (ESEA, §1119(a)(2)),39 explicitly applied to special
education teachers, for meeting the “highly qualified”definition under either IDEA
or ESEA.
Regarding other classifications of special education teachers, one can infer that
those who do not teach core subjects would meet the IDEA definition if they meet
the IDEA criteria for all special education teachers (full certification and at least a
bachelor’s degree). With respect to special education teachers who provide only
consultative services to other teachers, the Conference Report observes that:
a special education teacher who provides only consultative services to a highly
qualified teacher ... should be considered a highly qualified special education
teacher if such teacher meets the requirements of §602(10)(A).... Such
consultative services do not include instruction in core academic subjects, but
may include adjustments to the learning environment, modifications of
instructional methods, adaptation of curricula, the use of positive behavioral
36 (...continued)
and high school level can pass such a test or earn a degree or take a minimum number of
courses in the relevant core subject or subjects.
37 Under ESEA, the HOUSSE option is available only for veteran teachers (ESEA
§9101(23)(C)(ii)).
38 The Conference Report notes that the use of options, such as a single evaluation of
multiple subjects “must not ... establish a lesser standard for the content knowledge
requirements of special education teachers compared to the standards for general education
teachers.” H.Rept 779, 108th Cong., 2nd sess. 171 (2004).
39 See §612(a)(14)(C).
CRS-14
supports and interventions, or the use of appropriate accommodations to meet the
needs of individual children.40
The apparent intent is that consultative teachers who do not provide direct instruction
in a core subject need only meet the requirements of having obtained at least a
baccalaureate degree and be fully state certified as a special education teacher.
Other special education teachers who teach only one core subject would appear
to have to meet the relevant criteria under the ESEA definition (in addition to the
overarching IDEA certification and degree criteria) and would then also be
considered highly qualified under IDEA.41 Finally, §602(10)(E) provides that the
definition does not create a right of action based on an employee’s failure to meet the
“highly qualified” requirements of the act.
40 H.Rept. 779, 108th Cong., 2nd sess. 171 (2004).
41 See H.Rept. 779, 108th Cong., 2nd sess. 171 (2004) regarding new and “not new” special
education teachers teaching one core subject.
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Table 1. Comparison of Definitions of “Highly Qualified”
Teachers Under the Elementary and Secondary Education Act
(ESEA) and Under the Individuals with Disabilities
Education Act (IDEA)
Category of teachers
ESEA definition
IDEA definition
Covered teachers
All teachers of “core subjects”
All special education teachers
including special education
teachers teaching “core
subjects”
All covered teachers
Hold at least a baccalaureate
Hold at least a baccalaureate
degree
degree
Obtain full state certification or
Obtain full state special
pass the state licensing exam or
education certification or pass
fulfill requirements in state’s
the state licensing exam or
charter school law for teachers
fulfill requirements in state’s
in charter schools
charter school law for teachers
in charter schools
Cannot have an emergency or
Cannot have an emergency or
temporary certification
temporary certification
New elementary teachers
I n
a d d i t i o n t o g e n e r a l
In addition to general
requirements for all covered
requirements for all covered
teachers above:
teachers above:
pass rigorous state tests on
for special education teachers
subject knowledge and teaching
teaching core subjects, same
skills in reading, math, and
with two exceptions:
other basic el e mentary
curriculum
1. elementary school special
education teachers teaching one
or more core academic subjects
o nly t o child ren with
disabilities held to alternative
academic standards (most
severely cognitively disabled):
may demonstrate academic
subject competence through “a
high objective uniform State
standard of evaluation” (the
HOUSSE process)
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Category of teachers
ESEA definition
IDEA definition
2. new special education
teachers of two or more
academic subjects who are
highly qualified in either
mathematics, language arts, or
science:
have two-year window in which
to become highly qualified in
the other core academic
subjects and may do this
through the HOUSSE process
(including a single evaluation
for all core academic
subjects)baccalaureate degree
New middle/high school
In addition to general
In addition to general
teachers
requirements for all covered
requirements for all covered
teachers above:
teachers above:
demonstrate high level of
for special education teachers
competency in academic
teaching core subjects, same
subject(s) taught by passing
with two exceptions:
rigorous state tests or obtaining
a degree or the equivalent in
1. new middle or high school
subject(s) taught
teachers teaching one or more
core academic subjects only to
children with disabilities held
to alternative academic
standards (most severely
cognitively disabled):
may demonstrate “subject
matter knowledge appropriate
to the level of instruction being
provided, as determined by the
State, needed to effectively
teach to those standards”
2. new special education
teachers of two or more
academic subjects who are
highly qualified in either
mathematics, language arts, or
science:
have two-year window in which
to become highly qualified in
the other core academic
subjects and may do this
through the HOUSSE process
(including a single evaluation
for all core academic subjects)
CRS-17
Category of teachers
ESEA definition
IDEA definition
Veteran teachers at all levels
I n a d d i t i o n t o the general
In addition to the general
requirements for all covered
requirements for all covered
teachers above:
teachers above:
meet new-teacher standards or
for special education teachers
demonstrate competence in
teaching core subjects, same
academic subjects taught based
with certain modifications:
on “high objective uniform
state standards of evaluation”
(HOUSSE)
1. veteran middle or high
school teachers teaching one or
more core academic subjects
o nly t o c h ild ren with
disabilities held to alternative
academic standards (most
severely cognitively disabled):
may demonstrate “subject
matter knowledge appropriate
to the level of instruction being
provided, as determined by the
State, needed to effectively
teach to those standards”
2. veteran teachers at any level
who teach two or more core
academic subjects only to
children with disabilities:
may demonstrate academic
subject competence through the
HOUSSE process (including a
single evaluation for all core
academic subjects)
T e a c h e r s p r o v i d i n g
If these teachers do not teach
Meet only the general
consultative services
“core subjects,” they are not
requirements for all covered
subject to ESEA requirement to
teachers above
be deemed “highly qualified”
Source: Congressional Research Service.
IDEA State and Local Personnel Requirements. IDEA requires that
states ensure that personnel serving children with disabilities are “appropriately and
adequately prepared and trained.” Regarding special education teachers, states must
insure that all are “highly qualified” by the deadline specified in the ESEA.42
Regarding providers of related services (for example, speech pathologists and
physical therapists), states must ensure that their qualifications “are consistent with
any State-approved or State-recognized certification, licensing, registration, or other
comparable requirements that apply to the professional discipline” and that they
“have not had certification or licensure requirements waived on an emergency,
42 See ESEA §1119(a)(2).
CRS-18
temporary, or provisional basis.” Regarding paraprofessionals, IDEA requires that
states “are appropriately trained and supervised, in accordance with State law,
regulation, or written policy.”43
Department of Education Non-Regulatory Guidance
Regarding IDEA and NCLBA
Public School Choice. Non-regulatory guidance was issued by ED relating
to public school choice on February 6, 2004. This guidance provides that school
districts must offer students with disabilities the same opportunity as children without
disabilities to be educated in a school that has not been identified as in need of school
improvement and has not been identified as persistently dangerous. “However, an
LEA is not required to offer students with disabilities the same choices of schools as
it offers to nondisabled students. In determining the choices available to such
students, the LEA should match the abilities and needs of a student with disabilities
with those schools that have the ability to provide the student FAPE. Such students
still must be offered the opportunity to choose from among two or more schools.”44
The draft guidance also noted that the movement of a child with a disability to a
school of choice does not “in and of itself” trigger IDEA’s change in placement
procedures. The new school can adopt the existing IEP and the change of placement
procedures do not apply. However, “[t]he IDEA statute and implementing
regulations contain specific requirements regarding ‘change of placement’
provisions, and LEAs must comply with these requirements when they are
triggered.”45
Supplemental Educational Services. ED has also issued non-regulatory
guidance regarding supplemental educational services. Supplemental educational
services are defined as additional academic instruction designed to increase the
academic achievement of students in low-performing schools. ED’s draft guidance
provides that “an SEA and each LEA that arranges for supplemental educational
services must ensure that eligible students with disabilities and students covered
under Section 504 may participate.”46 Once parents select a provider for their child,
43 NCLBA also aims to upgrade the qualifications of certain paraprofessionals. In “targeted
assistance” Title I schools, only those paraprofessionals who provide instructional services
(as opposed to those who provide computer support or personal-care services) and are paid
by Title I-A funds are covered. However, all instructional paraprofessionals in schoolwide
project schools are covered. In general, all covered paraprofessionals must have earned a
high school diploma or a recognized equivalent. Those hired after Jan. 8, 2002, must have
completed at least two years of higher education and obtained an associate’s degree or met
“rigorous” state or local standards. Those hired before Jan. 8, 2002, must meet equivalent
requirements by Jan. 8, 2006.
44 [http://www.ed.gov/policy/elsec/guid/schoolchoiceguid.doc].
45 Ibid.
46 Each provider of supplemental educational services does not necessarily need to be able
to serve children with disabilities or children covered under Section 504. However, LEAs
(continued...)
CRS-19
the LEA must enter into an agreement with the provider that has certain provisions
including a timetable for improving the student’s achievement. In the case of a
student with a disability, this timetable is to be consistent with the student’s IEP.47
Selected Issues and Litigation
The provisions of NCLBA emphasizing that all children (including children
with disabilities) should be held to the same high standards to the maximum extent
possible have given rise to numerous questions by commentators about its
relationship with IDEA, with many of these questions arising from the different
philosophical approaches taken to education in IDEA and NCLBA.48 The 2004
IDEA reauthorization, the most recent ED regulations, and the recent enforcement
flexibility announced by ED appear to address some of these concerns. However,
several law suits are pending regarding NCLBA49 with one specifically addressing
the interaction between IDEA and NCLBA. In addition, the ED’s new enforcement
policy has itself generated some issues.
Exclusion of Children with Disabilities
One area of concern is that the inclusion of children with disabilities in the
assessment and accountability requirements of NCLBA will lead to the exclusion of
these children from the mainstream curriculum — a trend that federal special
education legislation has aimed to thwart. As one commentator has noted, NCLBA
requires annual tests and states that if a child with a disability is given an out-of-level
test and the state reports these children as “below proficient,” it would be counted
against the school’s performance. “Such ties to testing could exacerbate a problem
that parents often talk about — principals who try to push special education students
46 (...continued)
must ensure that services with the necessary accommodations are available, and if no other
provider makes them available, the LEA must do so itself or through contract.
[http://www.ed.gov/policy/elsec/guid/suppsvcsguid.doc].
47 Ibid.
48 The Council for Exceptional Children has published a detailed chart that takes sections
of NCLBA and then looks at the implications for special education. Council for Exceptional
Children, No Child Left Behind Act of 2001: Implications for Special Education Policy and
Practice, Jan. 2003, [http://www.cec.sped.org/pp/side-by-side09_04_02.pdf].
49 The National Education Association (NEA) and school districts in Michigan, Texas, and
Vermont have filed suit in U.S. District Court for the Eastern District of Michigan asking
for a judicial order prohibiting ED from threatening to withhold federal money if a state has
to spend more to comply with the NCLBA than it receives from the federal government.
Complaint for Declaratory and Injunctive Relief, School District of the City of Pontiac et
al. v. Spellings, No. 2:05-CV7-1535 (filed Apr. 20, 2005). See Bess Keller, “NEA Files ‘No
Child Left Behind’ Lawsuit,” Education Week, Apr. 20, 2005. For a discussion of the legal
issues involved, see CRS General Distribution Memorandum, A Legal Analysis of Section
9527(A) of the No Child Left Behind Act, by Jody Feder.
CRS-20
out of their schools because they bring down their test scores.”50 The December 9,
2003, regulations address this concern. First, the performance of the most severely
cognitively disabled children would be judged on alternative achievement standards,
with those performing at the proficient and advanced levels of these alternative
standards counted toward achieving AYP. In addition, out-of-level assessments will
meet the alternative achievement standards “if they are aligned with the State’s
academic content standards, promote access to the general curriculum and reflect
professional judgement of the highest achievement standards possible.”51 Finally, the
1% cap for including performance on alternative assessment standards for calculating
AYP does not apply at the school level. The new Education Department enforcement
policy which gives the states more freedom in how they test children with disabilities
may also address this issue. Thus, there might be less incentive to segregate children
with disabilities in separate schools or separate classrooms to ensure that school-level
AYP is met.
Highly Qualified Teachers
Another area of concern is the application of NCLBA personnel standards to
special education teachers. P.L. 108-446 specifically addresses this issue in its
definition of “highly qualified” which was discussed previously. Although this helps
to align IDEA with NCLBA, the definition has been criticized by some as leading to
anomalous results such as long time, highly regarded special education teachers not
being considered highly qualified.52 In addition, the more stringent requirements may
exacerbate the existing shortage of special education teachers.53 On the other hand,
it could be argued that all children, especially children with disabilities, should have
highly qualified teachers.
Litigation
Litigation is already pending concerning an alleged conflict between NCLBA
and IDEA. On February 3, 2005, the Ottawa Illinois High School District 140 filed
suit in U.S. district court alleging that the NCLBA’s special education subgroup
goals conflict with IDEA’s requirement for an individualized education program.
The complaint notes that the NCLBA requires school districts “to employ categorical
and systemic change if they have not, or any school within the district has not, met
or exceeded State standards within various subgroups, including a subgroup of
special education students, as assessed by a standardized test administered to all
50 Allison L. Bruce, “No Child Act Stirs Special ED Fears,” The Post and Courier
(Charleston, SC), Feb. 17, 2003, p. 1B.
51 34 C.F.R. Part 200; 68 Federal Register 68700, Dec. 9, 2003.
52 See, e.g., Christine Samuels, “Subject Qualification Vexing for Teachers in Special
Education,” educationweek.org, Feb. 16, 2005, at [http://www.edweek.org/agentk-12/
articles/2005/02/16/23idea.h24.html].
53 See, e.g., Associated Press, “Special Education Teachers Needed, Officials Say,”
Indianapolis Star, Mar. 28, 2005, at [http://www2.indystar.com]; Mike Sherry, “Law
Could Drive Some Out of Special Education,” Kansas City Star, Mar. 22, 2005, at
[http://www.kansascity.com/].
CRS-21
students within the district.”54 The plaintiffs, which include special education
students and their parents, allege that this requirement “does not allow for the
individual differences of these groups, specifically the needs of students with
disabilities....”55 As one commentator observed, the suit describes the relationship
between the two laws as placing school districts “between a rock and an IEP.”56
Enforcement of the No Child Left Behind Act
What ED officials describe as their new approach to implementing NCLBA to
allow states additional alternatives and flexibility if they can show they are raising
student achievement has raised additional policy and legal issues. Due to the nature
of the flexible standard, there is some ambiguity concerning what state actions would
suffice to meet NCLBA requirements. A joint statement by Representatives Boehner
and Miller stated that the Secretary’s approach “if carried out fairly and without
favoritism, could help iron out some of the difficulties in implementing the law. We
agree with her that every effort must be made to ensure smooth and effective
implementation, but we firmly believe that the effort must be based on the law as it
is written, not on a smorgasbord of different waivers for different states and
districts.... If the law is implemented with too much variety from state to state, the
progress we are making on boosting achievement and improving accountability with
be cut short.... It is imperative that the Department assess flexibility requests evenly,
objectively, and fairly.”57
A recent report by the National Conference of State Legislatures described the
relationship between IDEA and NCLBA as containing “inherent conflicts.”58 The
report contains a number of recommendations including providing states flexibility
in determining the percentage of special education students who can be tested
according to their ability, not their grade level. The Department of Education’s
proposed changes, discussed previously, were described as “encouraging” by the
National Conference’s executive director.59
The relationship between IDEA and NCLBA has not been seen as problematic
by all. Some disability groups view the assessment standards as a key civil rights
issue for children with disabilities. In a letter to Secretary Spellings, the Center for
54 Complaint, Board of Education of Ottawa Township High School District 140 v.
Spellings, Case No. 05 C 0655 (N.D. Ill. filed Feb. 3, 2005).
55 Ibid.
56 Stew Magnuson, “Two Federal Lawsuits Against NCLB in Works: Illinois Districts to
Challenge Law on Technical, Not Political, Grounds,” Education Daily, vol. 38, Jan. 18,
2005, p. 1.
57 Statement of Rep. Boehner and Rep. Miller on Secretary Spellings’ Announcement on No
Child Left Behind, Apr. 7, 2005 [http://edworkforce.house.gov/press/press109/first/04apr/
spellings040705.htm].
58 National Conference of State Legislatures, Task Force on No Child Left Behind, Final
Report 26, Feb. 2005.
59 “NCSL Statement on Department of Education’s Raising Achievement Initiative,” Apr.
7, 2005 at [http://www.ncsl.org/programs/press/2005/pr050407.htm].
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Law and Education and other groups argued against providing flexibility regarding
the calculation of annual yearly progress (AYP) under NCLBA. The letter stated in
part:
The educational achievement of these students, particularly those with
disabilities, who were previously denied participation in the general educational
curriculum, cannot be expected to turn around overnight. States, LEAs and
schools must be held accountable for accelerating the education of all these
students who are capable of learning and making progress toward the standards
set for all. Because some members of these protected student groups may not
currently be functioning or receiving instruction at grade level is no excuse for
failing to hold individual schools and school districts accountable to teach these
students so they too may attain the same achievement standards expected of all
other white, non-disabled, economically advantaged, English proficient
students.60
The letter also argued that any change in the AYP calculation should be subject to
rulemaking procedures and that a change that results in teaching a student with a
disability to lower standards, except for those with the most severe cognitive
disabilities, violates Section 504 of the Rehabilitation Act,61 and the Americans with
Disabilities Act (ADA).62
60 Letter to Secretary Spellings from the Center for Law and Education, the Advocacy
Institute, the National Down Syndrome Congress, the National Coalition of Parent Centers,
the National Council on Independent Living (NCIL), the National Down Syndrome Society,
TASH, dated Mar. 23, 2005, reprinted at [http://www.advocacyinstitute.org/resources/
Spellings_AA_CAP.pdf ].
61 29 U.S.C. §794. Section 504 prohibits discrimination against an individual with a
disability in any program or activity that receives federal financial assistance, the executive
agencies, and the U.S. Postal Service.
62 42 U.S.C. §12101 et seq. The ADA prohibits discrimination in employment, public
services, public accommodations and services operated by private entities, transportation
and telecommunications. For a discussion of the ADA see CRS Report 98-921, The
Americans with Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy
Lee Jones.