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Michelle writes: 

"A student is in the academic track and spends most of his day in the general education classroom with the help of an aide. His work, classroom tests and quizzes, and homework are all modified, per his IEP. Can the school exempt him from part of the SOL (standards of learning)? Since he is following the academic curriculum, he will not take the Alternate Assessment."

"I understood the law to read that the IEP team decides how the student will participate in statewide assessments -- not whether. The school says it is okay for them to exempt a student from part of the state assessment, as long as they explain how they will assess the student's knowledge. This seems to be a violation of the law."

Wrightslaw responds:

Issues relating to assessment and "high stakes testing" are very hot and will get hotter around the country as more states use tests to decide who gets what diploma.

Indiana Case: A few months ago, we published an article about learning disabled seniors in Indiana who asked a judge to issue an injunction so they could graduate. (Read this article about high stakes testing)

On August 24, 2000, Judith Heumann, Secretary of the Office of Special Education and Rehabilitation Services (OSERS) issued a Memorandum about Assessment (OSEP 00-24) to all State Directors of Special Education.

Get a copy of this Memoradum. You can download it from the Wrightslaw site. In essence, OSERS says that excluding children from statewide assessments on the basis of disability "generally would violate Section 504 and ADA."

The Memo cites the Report from the Committee on Labor and Human Resources (May 9, 1997): 

"Children with disabilities must be included in State and district-wide assessments of student progress with individual modifications and accommodations as needed . . . The committee knows that excluding children with disabilities from these assessments severely limits and in some cases prevents children with disabilities, through no fault of their own, from continuing on to post-secondary education." 

"The committee reaffirms the existing Federal Law requirement that children with disabilities participate in State and district-wide assessments." 

Here are some excerpts from this Memorandum: 

"Assessment is often associated with direct individual benefits such as promotion, graduation, and access to educational services . . . assessment is an integral aspect of educational accountability systems . . . Because of the benefits that accrue as the result of assessment, exclusion from assessments on the basis of disability generally would violate Section 504 and ADA."

The Memorandum talks the REQUIREMENT that ALL children participate in State and district-wide testing: 

"Participation of students with disabilities in State and district-wide assessments is not participation just for the sake of participation. Participation in these assessments should lead to improved teaching and learning.  Participation in assessments goes hand in hand with access to the general curriculum."

"Including all children in assessment programs can help to ensure a high quality educational experience for each student by creating high education expectations for all children and accountability for the educational results of all students. It is critically important that schools know how successful they are in preparing all students to meet high standards. Parents need to know this as well."

Download the new Memorandum about Assessment in pdf.

Download the new Memorandum About Assessment in rich text.

With clarification from this new Memorandum, it's hard to see how a school can justify excluding a child with a disability from state testing.

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Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
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Wrightslaw: All About IEPs
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Wrightslaw: All About Tests and Assessments
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Surviving Due Process: Stephen Jeffers v. School Board
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