Something Fairly Amazing Happened
on December 9, 2003
Whitney, Research Editor, Wrightslaw
Congress has reauthorized the Elementary and Secondary
Education Act (ESEA), the statute formerly known as No Child Left
Behind. The new statute, Every Student Succeeds Act, was signed into law by President Obama on December 10, 2015.
December 9, 2003, the U.S. Department of Education published the final regulations
about alternative assessments for students with significant cognitive
regulations affect how school districts and states will make AYP (Adequate
Yearly Progress) calculations. The regulations do not affect who may
or should take alternative assessments or who will be tested against
alternative assessment standards. The IEP team, which includes the
childs parents, will still decide how any child with an IEP
But that is not the noteworthy part.
regulations contain a new requirement that the school will tell parents
the significance of any testing decision the IEP team makes that will
affect the childs ability to earn a regular diploma. For example,
if the team is considering modifications on state testing that will
invalidate the test and would result in the child not being able to
pass an exit exam, they must tell the parents.
This is significant, but is not the part that stopped me in my tracks.
interesting item, but not a surprise, is that while the regulations
are specifically about significant cognitive disabilities, they do
not include a definition of significant cognitive disabilities.
But that is not what I am referring to either.
me, the noteworthy event on December 9, 2003, was not the new regulations
at all. It was the Federal Register notice that published these new
word appeared in the Federal Register that I did not expect to see.
The word is in this section that describes what is required by No
Child Left Behind. It is one small word - the word best.
Individuals with Disabilities Education Act (IDEA), section 504 of
the Rehabilitation Act of 1973, and title I require inclusion of all
students with disabilities in the State assessment system. Title I
further requires that the assessment results for all students (and
all students with disabilities, among other groups) who have been
enrolled in a school for a full academic year be used in calculating
AYP for the school, and that the assessment results of students who
have been in a district for a full academic year be used in calculating
AYP for the district and the State. System accountability should be
just that--accountability for everyone in the system. Students with
disabilities are a part of the student body. Most of these students
spend the majority of their time in general education classrooms,
and receive instruction from regular classroom teachers. Regardless
of where students receive instruction, all students with disabilities
should have access to, participate in, and make progress in, the general
curriculum. Thus, all students with disabilities must be included
in the measurement of AYP toward meeting the State's standards."
critical elements in title I as amended by the NCLB Act ensure that
schools are held accountable for educational results, so that the
best education possible
is provided to each and every student (emphasis added).
Three critical elements--academic content standards, academic achievement
standards, and assessments aligned to those standards--provide the
foundation for an accountability system ensuring that students with
disabilities reach high standards. State assessments are the mechanism
for determining whether schools have been successful in teaching students
the knowledge and skills defined by the content standards. States
are required to hold all students to the same standards except that
these regulations permit States to measure the achievement of students
with the most significant cognitive disabilities based on alternate
been wondering if the No Child Left Behind law is too good to be true.
first heard the President talk about this law, he was making a speech
about a bill that would be introduced. I was only half listening. But
when I heard him say all, I started
to pay more attention. Then I read his speech on the Internet. It really
did say all.
there would be a lot of talk in Congress. I thought a watered-down version
would emerge from Congress and things would not change. The next thing
I knew, the President was on television again. He was talking about
enacting the No Child Left Behind Act.
we waited for the regulations. Surely the regulations would water
down the law. But they did not.
Of course, the law would never be enforced. But it has been, most
of the time.
have met some of the people who are charged with helping the states
comply with the law. They are the real deal. But that must just be
a fluke, too. The U. S. Department of Education will not stand up
to states and force them to comply with the law as it is written.
They would never really mean to, and succeed in, educating all
children. Not really all.
Register notice. It is long. Print it out and highlight the important
parts. Read all the way through to the comments the U. S. Department
of Education received when they asked for public comment on the proposed
See how these final regulations came about. See the thought process.
Pay attention to the language used.
really do mean all.
release (December 9, 2003)
from U. S. Department of Education
Sheet (2 pages)
Register, Volume 68, Number 236 (December 9, 2003)
reported in Federal Register (html)
reported in Federal Register (PDF)
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Meet Sue Whitney
Sue Whitney of Manchester, New Hampshire, works with families as a special education advocate and is the research editor for Wrightslaw.
In Doing Your Homework, Suzanne Whitney gives savvy advice about reading, research based instruction, and creative strategies for using education standards to advocate for children and to improve public schools.
Her articles have been reprinted by SchwabLearning.org, EducationNews.org, Bridges4Kids.org, The Beacon: Journal of Special Education Law and Practice, the Schafer Autism Report, and have been used in CLE presentations to attorneys.
Sue is the co-author of Wrightslaw: No Child Left Behind (ISBN: 978-1-892320-12-4) that was
published by Harbor House Law Press, Inc.
She also served on New Hampshire's Special Education State Advisory Committee on the Education of Students/Children with Disabilities (SAC).
Sue Whitney's bio.
Copyright © 2002-2022 by Suzanne Whitney.