On January 16, 2018, the U.S. Department of Education rejected New York’s application for a waiver of sections 1111(b)(1)(B) and (b)(2)(B)(i) of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), 20 U.S.C. § 6311(b)(1)(B), (b)(2)(B)(i), provisions demanding that states hold all students, with or without disabilities, to the same academic standards, and administer the same grade-aligned assessments to all students. See https://www2.ed.gov/admins/lead/account/stateplan17/waivers/nybelowgradetestingforswdltr.pdf.

The New York State Education Department (NYSED) asked for a waiver of these parts of the law so that children with disabilities enrolled in grades four through eight could be assessed using reading-language arts and math assessments for lower grades, as long as the assessments were for not more than two grades below the child’s chronological grade level. NYSED thought the use of the below-grade-level assessments would give teachers better information about what a student’s level of understanding and performance actually is, so as to facilitate better instruction. The waiver would apply to only a small number of students, those who have the most significant cognitive disabilities, but who are not eligible for the New York State Alternate Assessment (NYSAA). As the NYSED’s website comment on the waiver stated, “Currently these students, who are not eligible for the NYSAA, must take a grade level exam, even if these students are unable to correctly answer any of the questions on the exam.” See http://www.nysed.gov/news/2017/state-education-department-releases-waivers-related-state-essa-plan-public-comment.

Jason Botel, the Principal Deputy Assistant Secretary of Education, signed the letter issuing the denial. The letter’s explanation emphasized the importance of high standards for students with disabilities:

After reviewing NYSED’s request, I have determined that the State has not demonstrated the requested waiver would advance student achievement or how it will maintain or improve transparency in reporting to parents and the public on student achievement and school performance, as required under 8401(b)(1)(C). ESEA section 1111(b)(1)(B) requires the State educational agency to apply the same challenging academic content standards and aligned academic achievement standards to all public schools and public school students in the State; holding all students to the same, high standards is critical to ensuring the State will advance student achievement and that all students graduate high school with the knowledge and skills they need to succeed in college and the workforce.

The letter continued by suggesting that the availability of alternate assessments aligned to alternate academic achievement standards for students with the most significant cognitive disabilities ought to be enough of a departure from the uniform regime to accommodate students not properly assessed under grade-aligned achievement standards:

Further, ESEA section 1111(b)(2)(B)(i)(I) requires that, with the exception of alternate assessments aligned to alternate academic achievement standards for students with the most significant cognitive disabilities, the assessments administered by the State must be the same academic assessments used to measure the achievement of all public elementary and secondary students. Waiving these requirements would undermine the intent of the statute that States set high expectations that apply to all students and hold schools accountable for reaching those expectations. The Department supports these requirements as necessary to ensure that teachers and parents of all students, including children with disabilities, have information on students’ proficiency and progress in reading/language arts and mathematics.

The importance of this development for IHOs depends on its impact on the meaning of free, appropriate public education, or FAPE. Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 69 IDELR 174 (Mar. 22, 2017), said that for a child not fully integrated in the general education classroom and not able to achieve at grade level, “his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Id. at 1000. It would hardly be a surprise if, in the debate over what “appropriately ambitious” means, the child’s performance on school- and district-wide assessments would be raised. With the denial of the proposed waiver, the assessments on which these arguments would be based will likely remain either grade-aligned assessments (administered with accommodations as needed) or the NYSAA.