[*PG1139]HIGH-STAKES TESTS AND STUDENTS WITH DISABILITIES
Abstract: Federal statutes require states to establish high educational standards and to create and administer standards-based assessments for all students, including those with disabilities. Although states can include most students with disabilities in these tests by providing them with accommodations, including students for whom these adaptations are insufficient to allow for meaningful participation in the tests has been more difficult. When designing and administering these tests, policy-makers must guard against unfairly denying educational opportunities to any student in an effort to set higher standards for the general population. Alternate assessments must be based on the individualized goals and objectives of each student who requires such an assessment in order to comply with constitutional requirements and non-discrimination policies.
In 1983, the controversial report A Nation at Risk1 sounded as a warning cry to educators, parents and legislators about the state of education in the United States.2 The report, which purported to demonstrate conclusively that children in the United States were far behind their peers in other countries, sparked a firestorm of education reform that continues today.3 A major offshoot of that reform was the reauthorization of the Elementary and Secondary Education Act as the Improving American Schools Act (“IASA”).4 IASA included requirements for states to establish high standards and to create and administer standards-based assessments for “all students,” including [*PG1140]those with disabilities.5 These assessments often are called “high-stakes” assessments, in part, because many states require a passing score in order to graduate from high school.6 Although IASA provides rough guidelines for developing assessments to meet the needs of bilingual and limited English proficient students, it provides no such framework for students with disabilities.7 The Federal Department of Education defines a child with a disability as:
[A] child evaluated . . . as having mental retardation, a hearing impairment including deafness, a visual impairment including blindness, serious emotional disturbance . . . , an orthopedic impairment, autism, traumatic brain injury, an other [sic] health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.8
Notwithstanding the fact that states have been able to include most students with disabilities by providing them with accommodations or modified tests,9 states continue to struggle to include students [*PG1141]for whom these adaptations are insufficient to allow for meaningful participation in the tests. Researchers estimate that about 85% of students who are eligible for special education services can participate in large-scale high-stakes assessments with or without accommodations.10 Although the remainder—those students who can not participate in these assessments even with accommodations—represents only one-half to two percent of the total student population,11 the Individuals with Disabilities Education Act (“IDEA”) requires that these students be included in state-wide assessment initiatives using alternate assessments by July 1, 2000.12 This Note examines the various federal statutes relating to high-stakes assessments and explores how states might include students who require alternate assessments in those statewide assessment initiatives. In 1995, seventeen states required students to pass an exit exam to receive a diploma.13 By 1999, (according to one estimate) twenty-six states projected to use tests as conditions for graduation by 2003 and six states already use tests as conditions for grade promotion.14 Some states have even adopted a two-tiered system, giving one type of diploma to students who pass state-wide tests and another type to those who do not.15 Since nearly every state cur[*PG1142]rently is grappling with this issue, this Note focuses on Massachusetts, and uses its efforts as a case study. While other states may take different approaches to high-stakes tests than Massachusetts, the issues surrounding the inclusion of students with disabilities are substantially the same.
Part I of this Note examines the federal statutes that underlie the development of high-stakes tests.16 Part II then explains the issues that states must contend with when developing such tests—including due process and non-discrimination concerns.17 Part III describes Massachusetts’s high-stakes testing initiative: the Massachusetts Comprehensive Assessment System (“MCAS”).18 Part IV applies the examination of due process and non-discrimination concerns to the MCAS and makes recommendations concerning how states should deal with students who require alternate assessments.19 Finally, Part V proposes recommendations for states in constructing and administering alternate assessments.20
Although the administration of education traditionally is considered a state role,21 the federal government maintains tremendous influence over state and local education agencies through its spending power22 and its efforts to protect the general welfare.23 Congress [*PG1143]influences education primarily by passing appropriations—laws requiring specific state action in exchange for federal funding—that bind only the states that choose to accept federal funds.24 All fifty states and the District of Columbia currently receive federal funds under IASA and the Individuals with Disabilities Education Act.25
The Goals 2000 Educate America Act (“Goals 2000”) and IASA were among Congress’ major responses to A Nation at Risk.26 Together, the acts stand for the principle that all children can learn and achieve high standards and are entitled to participate in a broad and challenging curriculum.27 The acts also establish requirements for states accepting their funds. Namely, states must create and implement education improvement plans that include processes for developing and adopting curriculum standards for “all students.”28 The requirement that these plans apply to “all students” explicitly includes those with disabilities.29
To help measure progress, Goals 2000 requires that state improvement plans include a process for developing and implementing reliable state educational assessments.30 These assessments must be aligned with state curriculum standards, involve multiple measures of student performance and “provide for participation of students with diverse learning needs.”31 Goals 2000 also establishes National Educa[*PG1144]tion Goals, which help guide states in creating their own educational goals and standards.32 Once states establish educational standards, IASA requires the participation of all students in state assessments “with reasonable accommodations” necessary to measure the achievement of students with “diverse learning needs” relative to the state’s standards.33 These assessments, the statute provides, “shall be the same assessments used to measure the performance of all children,” shall provide “coherent information about student attainment of the standards” and shall be used in a way that ensures that they are “valid, reliable, and . . . consistent with relevant, nationally recognized professional and technical standards.”34 Moreover, the results of these assessments must provide interpretive and descriptive information and must be disaggregated within each state, local school district and school, including a comparison of scores for students with disabilities as compared to nondisabled students.35 Congress intended this disaggregation to “help schools ensure that all types of students are making progress towards meeting the state standards.”36
In 1997, two years after Congress reauthorized IASA, it also reauthorized IDEA.37 Under IDEA, Congress defines “special education” as “specially designed instruction . . . to meet the unique needs of a child with a disability.”38 Thus, Congress identifies the purpose of IDEA as ensuring that all children with disabilities receive educational services that are “designed to meet their unique needs.”39 The primary tool for accomplishing this goal is the Individualized Education Plan (“IEP”). An IEP is a written document that includes a statement of the child’s present levels of educational performance and a description of the ways in which the child’s disability impacts his or her educational progress.40 The IEP also must contain a “statement of measurable goals, including benchmarks or short-term objectives,” related to meeting the child’s needs as well as a statement of the special education programs and services to be provided.41
The IEP is developed by a team that must include at least the parents of the child; at least one of the child’s regular education teachers (if the child is or may be participating in the regular education environment); at least one special education teacher; a representative of the local education agency who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the local educational agency; and an individual who can interpret the instructional implications of evaluation results if one of the other individuals can not do so.42
In developing an IEP, the IEP team must consider “the strengths of the child and the concerns of the parents for enhancing the education of their child” along with the results of the most recent evaluations of the child.43 Moreover, the team must review the child’s IEP at least annually to determine whether the annual goals for the child are [*PG1146]being achieved and must revise the IEP to address any lack of expected progress and the results of any reevaluation.44
In addition, IDEA, like IASA and Goals 2000, reaffirms that state education reform initiatives must fully include students with disabilities.45 A student’s IEP, developed by a team of educators and the student’s parents, must describe both the nature and extent of a student’s participation in the state reforms.46 The IEP also must specify the modifications and accommodations that the student requires in order to participate in state or district-wide assessments.47 Moreover, IDEA requires states to include students with disabilities in performance goals, assessments and the reporting of test or assessment results.48
Even absent statutes like Goals 2000, IASA and IDEA, which specifically target education, Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and the Americans with Disabilities Act (“ADA”) have significant implications in student participation in educational programs and activities and in the creation and administration of standardized assessments for students with disabilities.49 Because Section 504 and the ADA both were promulgated under Congress’ 14th Amendment powers, states, districts and schools are bound by their requirements even if they do not accept federal funds.50 Section 504 requires states to include students with disabilities in any program that receives federal financial assistance, including any public education program or state-wide assessment initiative.51 The regulations promulgated under Section 504 and the ADA explicitly prohibit the [*PG1147]use of “criteria or methods of administration which have the effect of subjecting individuals to discrimination” on the basis of a disability in all educational institutions that receive federal funds.52 These regulations also require that programs and services for students with disabilities be equally as effective as those provided to their nondisabled peers in terms of affording an opportunity to obtain the same result, gain the same benefit or reach the same level of achievement.53
Notwithstanding Section 504’s requirement that schools include students with disabilities in high-stakes assessments, in 1981, in Jackson County Schools, the U.S. Department of Education Office for Civil Rights (“OCR”) held that exempting students with disabilities from participating in West Virginia’s Statewide Achievement Test did not violate Section 504.54 On April 7, 1981, OCR received a letter of complaint alleging that the Jackson County Schools were preventing students with disabilities from participating in the test.55 The complaint claimed that this action deprived the students of their “right to be viewed as normal,” prevented students from being ranked among their peers, and prevented students in segregated programs from demonstrating academic success.56 The Office for Civil Rights found that Jackson County Schools was not in violation because “1. the majority (79.4%) of eligible handicapped students participate[d] in the test; and 2. those eligible students who [did] not participate [were] excluded on the basis of individual, not categorical, decisions. . . .”57 This holding, however, may not reflect the agency’s current interpretation. The July 2000 draft of a resource guide concerning the use of high-stakes tests notes that state and district-wide “assessments provide valuable information which benefits students, either directly, such as in the measurement of individual progress against standards, or indirectly, such as in evaluating programs. Given these benefits, exclusion from assessment programs based on disability generally would violate Section 504 and [the ADA].”58
[*PG1148] Like Section 504, the ADA also has significant implications in the design and administration of high-stakes tests for students with disabilities.59 Title II of the ADA prohibits states, school districts, schools and all other public entities from excluding from participation, denying benefits, aids or services to, or discriminating against a qualified individual with a disability.60 The ADA provision on testing requires that schools and states offer assessment in a “place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”61 In addition, Title III of the ADA provides that these prohibitions apply to public accommodations, privately-operated services and private testing companies that write tests; they do not apply, however, to religious entities operated by religious organizations.62 The Department of Justice, which is responsible for enforcing Title III, issued regulations specifically covering assessments by private secondary schools.63 These regulations require the private entity to ensure that the examination is selected and administered “so as to best ensure that, when the examination is administered to a person with a disability . . . the examination results accurately reflect the individual’s aptitude or achievement level . . . rather than reflecting the individual’s impaired sensory, manual, or speaking skills.”64
Although Congress provides guidance and financial incentives, states retain primary responsibility for setting educational policy. Indeed, IASA charges states with establishing standards and state-wide assessment systems,65 and IDEA makes it a state’s responsibility to provide all students with disabilities a free and appropriate public education.66 Thus, state governments, not Congress, ultimately decide how to implement IASA and IDEA and ultimately design and administer [*PG1149]high-stakes assessments.67 Because each state is, in many ways, free to design its own state-wide assessment system, each system is somewhat unique.68 In light of the broad authority retained by states to administer education policy, it is instructive to examine several important considerations for states—including constitutional and statutory concerns as well as the standards and guidelines set forth by scholars and education associations—as they design and implement state-wide high-stakes assessment systems.
According to Arthur Coleman, former Deputy Assistant Secretary for Civil Rights at the United States Department of Education, the “job of the educator is to help students achieve their full potential. This educational mandate is no less present during classroom instruction than it is when educators administer tests and evaluate.”69 Coleman also adds that tests, when properly used, “help students achieve their full potential.”70 In addition, the National Research Council (“NRC”)71 has recognized the value of testing programs, stating that “[b]lanket criticisms of tests are not justified.”72 The NRC believes that when tests are used in ways that meet the relevant professional [*PG1150]standards “student scores provide important information that, combined with other sources, can lead to decisions that promote students learning and equality of [educational] opportunity.”73 Thus, when designing and administering high-stakes tests, policy-makers and the educational community must guard against unfairly denying educational opportunities to any student in an effort to set higher standards for the general population.74 Because of this tension between civil rights concerns and the practice of setting high standards, disagreements over the participation in and use of high-stakes tests often implicate due process considerations that require judicial intervention.75
When considering a due process claim in the context of a school’s denial of a diploma due to a student’s failure on a high-stakes test, courts generally have held that in states where attendance is compulsory, students have a cognizable property right at stake: namely, a legitimate entitlement to public education.76 In addition, most courts have held that the opportunity to receive a high school diploma is also a constitutionally protected interest.77
Once a constitutionally protected interest is identified, federal courts first consider whether the purpose of the testing program is “legitimate and reasonable.”78 Courts consistently have deferred to educational judgments made at the state level provided that these judgements are “reasonable, rational, or not arbitrary.”79 Next, courts examine whether students and parents received adequate notice of the test and its consequences.80 This requirement of adequate notice is intended to provide a reasonable transition period so that curricula and classroom instruction can be aligned to the standards being [*PG1151]tested and students can prepare adequately for the test itself.81 The actual time period that is required for adequate notice depends on a variety of factors, including “the alignment of curriculum and instruction with material tested, the number of test taking opportunities provided to students, tutorial or remedial opportunities provided to students, and whether factors in addition to test scores can affect high-stakes decisions.”82
In conjunction with the question of adequate notice, courts consider whether the test is “fundamentally unfair.”83 Ultimately, the question of fairness is a matter of whether students have actually been taught the material covered by the test.84 As Coleman describes this analysis, “courts question whether [the tests] are administered appropriately, and are aligned with the instruction students have received so that they provide meaningful conclusions about the students.”85 Thus, the courts’ consideration of fundamental fairness is closely related to an examination of the validity of the test.86 Tests are considered valid when they actually measure what they say they measure and lead to legitimate inferences that are appropriate and meaningful.87
In addition to due process concerns, states must guard against establishing systems that discriminate under Title VI of the Civil Rights Act of 1964 (“Title VI”),88 Title IX of the Education Amendments of 1972 (“Title IX”),89 Section 504 and the ADA.90 Those who [*PG1152]wish to challenge statewide assessment systems under these statutes and their accompanying regulations need not even allege that the state intended to discriminate against them; rather, they need only show that the tests yield results that have the effect of discriminating.91 When addressing these kinds of discrimination claims in the context of high-stakes assessments, the courts look first to determine whether an assessment leads to a disparate adverse impact on any particular group.92 Thus, even if intentional discrimination is lacking, “a violation of [the discrimination statutes] may occur if . . . a test that is used to deny a student educational benefits or opportunities has a statistically significant adverse impact upon a group of students based on race, national origin, sex, or disability.”93 This means that an individual who claims that a test is discriminatory must show by statistical analysis that the success rate for members of a protected class is “significantly lower (or the failure rate is significantly higher) than would be expected from a random distribution.”94
Even if the test has a disparate impact, the state or school district administering the test has the opportunity to show that the testing practice is educationally necessary and therefore justified.95 A test is more likely to be considered educationally necessary if it meets the professional standards that apply in the context of the intended use.96 If the test is found to be educationally necessary, it still may be challenged if “there is a less discriminatory and practicable alternative that as effectively would serve the educational objectives that support the use of the test in the first instance.”97 Costs and administrative burdens may be considered when assessing whether the alternative practice is feasible and equally as effective in fulfilling the institution’s [*PG1153]goals.98 In sum, if a test is valid, used appropriately and is the most effective and practicable tool to achieve a legitimate educational purpose, it can survive a discrimination claim even if some subset of students is disproportionately denied opportunities as a result of the test’s use.99
Two cases in particular illustrate the way courts deal with challenges to testing systems under the Constitution and non-discrimination statutes. In 1981, in Debra P. v. Turlington, the Court of Appeals for the Fifth Circuit held that Florida could not impose a requirement that students achieve a passing score on a state-wide assessment before they could receive a diploma unless the State could show that it had afforded the students an opportunity to learn the information required by the test.100 The court noted that absent such a showing the test was unlikely to be a valid instrument for measuring mastery of the state standards.101 Moreover, the court found that if the test covered “matters outside the curriculum, its continued use would violate the Equal Protection Clause.”102 In analyzing the test under the Equal Protection Clause, the court said that “[i]f the test by dividing students into two categories, passers and failers, did so without a rational relation to the purpose for which it was designed, then the Court would be compelled to find the test unconstitutional.”103 Similarly, analyzing the plaintiffs’ due process challenge, the court found that “the state administered a test that was, at least on the record before us, fundamentally unfair in that it may have covered matters not taught in the schools of the state.”104
Likewise, in 1983, in Brookhart v. Illinois State Board of Education, the Court of Appeals for the Seventh Circuit held that a local school district violated the due process rights of eleven students with disabilities when it notified students of a high-stakes test only a year and a half before requiring them to pass the examination in order to receive a high school diploma.105 Although the court determined that [*PG1154]the students had a liberty interest in receiving a diploma, it rejected the students’ claims that the high-stakes testing requirement violated the Education for all Handicapped Children Act (“EAHCA”) (now IDEA) and Section 504.106 With regard to EAHCA, the court held that the test requirement did not deny the students a free and appropriate education because a diploma was an educational outcome that did not reflect the student’s access to educational services.107 Moreover, the district did not violate EACHA’s regulation mandating that no single procedure be used as the sole criterion for determining an appropriate educational program because the district also required students to earn seventeen credits and complete state requirements in order to graduate.108
In its examination of Section 504, the court found that “[a]ltering the content of [the test] to accommodate an individual’s inability to learn the tested material because of his handicap would be a ‘substantial modification’” that was not required under the statute.109 Thus, although Section 504 required the school district to modify the test so that students with disabilities could “disclose the degree of learning [they] actually [possess],” that statute did not preclude denying a diploma to students who did not pass the modified test.110
States continue to struggle to include students with disabilities in their assessment initiatives. Although a few states, notably Kentucky (where 99% of students participate in the state’s assessment system)111 and Maryland, have made strides in including students with disabilities, many, including North Carolina and Florida, continue to exclude them altogether.112 When students with disabilities are included in the assessments, there is often a public outcry over dramatic drops in scores.113
Given these considerations, in 1999, the NRC published a report on high-stakes tests.114 In the chapter on disabilities, the NRC begins by sketching the relevant federal statutes, focusing on the 1997 amendments to IDEA, which provide that states must “have policies and procedures to ensure that students with disabilities are included in . . . assessment programs, with appropriate accommodations when necessary.”115
Despite IDEA’s mandate that students with disabilities be included in large-scale assessment programs, the NRC states that “many students with disabilities have traditionally been exempted from large-scale achievement tests.”116 According to the NRC, exclusion persists because educators and parents are confused about the availability of modifications or accommodations or are concerned about subjecting these children to the stress of testing.117 Additionally, officials sometimes have “excused” children with disabilities from a testing requirement in an effort to raise their schools’ average scores.118 Parents and educators also remain concerned about the potential mismatch between test content and student curricula as well as difficulties in administering certain tests to students with severe disabilities.119
[*PG1156] The report points out that “[b]ecause about 50 percent of students with disabilities have been excluded from state and district-wide assessments . . . there has been a shortage of key indicators of success for these students.”120 This exclusion, according to the NRC, leads to school systems that have not “established meaningful educational goals for children who, it is now clear, can achieve at higher levels than society has historically assumed.”121
To provide for the increased inclusion of students with disabilities in high-stakes tests, the NRC points out that since July 1, 1998, all IEP’s must include either a statement of the modifications that a student will require to participate in state-wide assessments or a statement of why the assessment is inappropriate for the student if he or she will not participate.122 For students who are excluded from statewide assessments, the state must ensure “development of guidelines for their participation in alternate assessments.”123 These alternate assessments must be developed and conducted by July 1, 2000, and states must have a mechanism for reporting the resulting scores.124 In addition, the considerations with respect to non-discrimination, due process and validity that apply to large-scale high-stakes assessments in general apply with equal force to these alternate assessments.125
Although standards for identifying disabilities vary greatly across the nation, the NRC asserts that, overall, students with disabilities make up ten percent of the school-age population.126 In addition to this population, Section 504 and the ADA entitle an unknown number of students who may not qualify for specialized education services under IDEA to reasonable accommodations on high-stakes tests. Therefore, the legal rights afforded students with disabilities have a significant effect on state high-stakes assessment systems.127
Although the NRC identifies some accommodations that commonly are used in schools today, it does not make any suggestions about how to increase the number of students with disabilities participating in these assessments.128 Rather, the NRC merely points out that [*PG1157]a significant question exists and that research on the issue is scarce.129 Drawing on an earlier report,130 the NRC identifies four conclusions concerning students with disabilities and high-stakes tests.131 First, disabilities can lead to unpredictable distortions in test scores.132 Second, some accommodations may inflate artificially and inappropriately the scores of some students.133 Third, the most common accommodation—providing additional time—is not appropriate in every case; moreover, the effectiveness of this accommodation merits more research.134 Finally, “although individuals with disabilities are entitled to reasonable accommodations that do not alter the content being tested, current knowledge and testing technology are not sufficient to allow the design of such accommodations.”135 Thus, two of the NRC’s recommendations are particularly relevant here.136 The first is that “[m]ore research is needed to enable students with disabilities to participate in large-scale assessments in ways that provide valid information. This goal significantly challenges current knowledge and technology about measurement and test design and the infrastructure needed to achieve broad-based participation.”137 The second important recommendation is that “[b]ecause a test score may not be a valid representation of the skills and achievement of students with disabilities, high-stakes decisions about these students should consider other sources of [*PG1158]evidence such as grades, teacher recommendations, and other examples of student work.”138
Since 1954, the American Educational Research Association, the American Psychological Association and the National Council on Measurement in Education have been responsible for publishing professional standards for educational and psychological testing.139 The APA Standards seek to “promote the sound and ethical use of tests and to provide a basis for evaluating the quality of testing practices.”140 One of the essential tenets of the APA Standards with regard to high-stakes tests is that no single test should be used to make a high-stakes decision about a student.141
A key question posited by the APA Standards, and underlying both due process and non-discrimination claims, as described above, is whether the test is valid for the purposes for which it is being used for all students taking the test.142 According to the APA Standards, validity is the “most fundamental consideration in developing and evaluating tests.”143 The process by which tests are designed and administered must ensure that the inferences that are meant to be drawn from the test are based on sound scientific principles.144 In the context of high-stakes tests, a test and the inferences drawn from it are considered invalid if students have not been taught the material on the test.145 Said another way, if the content of instruction and [*PG1159]teaching methodology provide students with a chance to learn the material on the test, the test is more likely to be considered valid, reliable and fair.146 This means that tests may be valid for one group of students—or one kind of inference—and invalid for another.147 Thus, Standard 13.1 states that “[w]hen educational testing programs are mandated by school, district, state, or other authorities, the ways in which test results are intended to be used should be clearly defined.”148 Such a clear definition helps identify both intended and unintended consequences of high-stakes decisions based on test results. Once the test is in use, evidence gathered about these consequences provides important feedback about the validity of the test results “or it can raise concerns about an inappropriate use of a valid test.”149 For example, significant differences in placement scores based on race or gender should trigger further inquiry about the test and how it is being used to make placement decisions.150 In this situation, the validity of the test could be compromised if scores are “substantially affected” by irrelevant factors that the test is not intended to measure.151
In addition to validity concerns, which apply in all testing situations, the APA Standards also recognize that high-stakes tests involve additional, unique considerations.152 When all students of a particular age or in a given grade are required to participate in an assessment, Standard 11.23 recommends that “users [of the test] should identify individuals whose disabilities . . . [indicate] the need for special accommodations in test administration and ensure that these accommodations are employed.”153 The Comment that accompanies this standard notes that “[a]ppropriate accommodations depend on the nature of the test and the specific needs of the test taker.”154 In addition, Standard 10.8 urges that those responsible for decisions about test use with potential test takers who may need modifications should [*PG1160]“(a) possess the information necessary to make an appropriate selection of measures, (b) have current information regarding the availability of modified forms of the test in question, (c) inform individuals, when appropriate, about the existence of modified forms, and (d) make these forms available to test takers when appropriate and feasible.”155
Moreover, Standard 10.10 urges that “any test modifications adopted should be appropriate for the individual test taker” and that a “test professional needs to consider reasonably available information about each test taker’s experiences, characteristics, and capabilities” that may affect test performance.156 Like the NRC, the authors of the APA Standards recognize that although “more valid results may be obtained through the use of a test specifically designed for use with individuals with disabilities”157 it may be difficult to find a substitute test “for which scores can be placed on the same scale as the original test.”158
The National Center on Educational Outcomes (“NCEO”), an organization which studies testing practices, addressed this difficulty in its recommendations on alternate assessments for students who are unable to participate in high-stakes tests with accommodations.159 The NCEO advocates alternate assessments that are “designed to assess achievement toward pre-determined standards.”160 The NCEO clearly states that such assessments can and should maintain high standards for achievement by students with disabilities.161 To account for the individualized needs of students who are likely to require alternate assessments, the NCEO recommends that “[b]roadly defined goals, such as appropriate communication skills and independence in a number of areas (transportation, self-care, etc.) which are important for all students” should be the focus of the assessments.162
Following the Massachusetts Supreme Judicial Court’s decision in 1993, in McDuffy v. Secretary of Executive Office of Education, which held that the Commonwealth’s education financing system failed to satisfy the state constitutional duty to cherish the public schools,163 the Commonwealth responded with the Massachusetts Education Reform Act of 1993 (“MERA”).164 MERA requires that “the [state education] system shall employ a variety of assessment instruments”165 that are “criterion referenced, assessing whether students are meeting” the standards set by the state Board of Education.166 These assessments developed into what is now known as the Massachusetts Comprehensive Assessment System (“MCAS”).167 MCAS and the Massachusetts Curriculum Frameworks, the Commonwealth’s name for its learning standards,168 are the Commonwealth’s answer to IASA and Goals 2000, which require the development and adoption of curriculum standards for all students.169 The Curriculum Frameworks themselves have been the subject of recent controversy as revisions continue to [*PG1162]meet with resistance from teachers, parents and policymakers.170 This is particularly significant when considering whether the Commonwealth has provided adequate notice of what will be assessed by MCAS. Courts require adequate notice in order to provide a reasonable transition period so that curricula and classroom instruction can be aligned to the standards and students can prepare for the test itself.171 Although the actual time period required for adequate notice depends on a variety of factors, changing standards are obviously more difficult to align with instruction. 172
MERA does not specifically address the participation of students for whom modifications and accommodations would be insufficient to allow participation in the assessment, but does provide that:
As much as is practicable, especially in the case of students whose performance is difficult to assess using conventional methods, such instruments shall include consideration of work samples, projects and portfolios, and shall facilitate authentic and direct gauges of student performance. . . . The assessment instruments . . . shall recognize sensitivity to different learning styles and impediments to learning. The system shall take account on a nondiscriminatory basis the . . . particular circumstances of students with special needs.173
Because Massachusetts receives federal funds under IDEA to help fund its programs for students with disabilities, the IEP requirements, which require schools to specify the modifications and accommodations that a student will need to participate in state or district-wide assessments, apply in Massachusetts.174 The Massachusetts analog to the federal IDEA is commonly referred to as Chapter 766, after the chapter of the original act under which it was passed.175 Massachusetts regulations also require an IEP team to consider the general curriculum, the learning standards of the Massachusetts Curriculum Frame[*PG1163]works, and the district curriculum and to spell out in the IEP the specially designed instruction that will enable the student to progress effectively in the content areas of the general curriculum.176
In the spring of 1999, the Massachusetts Department of Education (“DOE”) published a guide to aid teachers and parents in administering the MCAS to students with disabilities.177 The DOE guide defines students with disabilities as “students who have Individualized Education Plans (IEPs) or a plan of instructional accommodations provided under Section 504 of the Rehabilitation Act of 1973.”178 The Guide states that the purpose of the MERA is “to ensure that all students are provided an opportunity to learn the material covered by the Massachusetts Curriculum Framework [sic] standards.”179 The Guide also provides a list of accommodations that might be appropriate when administering MCAS and notes that some students could be allowed to take an alternate assessment.180 With regard to alternate assessments, however, the Guide states that “[t]he Department [of Education] anticipates that few students with disabilities will participate in MCAS through alternate assessments,181 and intends to closely examine schools that report significant increases in the number of students who participate in alternate assessments from one year to the next.”182 In order to facilitate reporting of scores, a critical aspect of the federal mandate and the MCAS system, the Guide promises that the Department of Education will collect data from individual student participation in alternate assessments in 1999 through MCAS Alternate Assessment Student Report forms completed by schools during MCAS administration.183
[*PG1164] The Massachusetts Department of Education is currently working to develop an alternate assessment for students for whom an on-demand paper-and-pencil test like the MCAS is inappropriate and has set aside $2,550,000 over the next three years for the project.184 Until now, IEP teams have been free to design alternate assessments for these students.185 Beginning with the 2000–2001 school year, however, “schools and school districts will begin using a new statewide format: the MCAS Alternate Assessment.”186 Although the AERA Standards and NRC’s report on high-stakes tests both suggest that current technology does not allow scores from such alternate assessments to be normed along with scores from regular administrations, the DOE plans to include results of the MCAS Alternate Assessment “in school and school district MCAS reports beginning with their first administration.”187 The DOE is unequivocal in its intent to require students who participate in this assessment to achieve a specific score in order to graduate, stating that “[s]tudents with disabilities who demonstrate the required level of performance through the MCAS Alternate Assessment will have the same opportunity to meet the state’s graduation requirements as students who demonstrate the required level of performance on the standard MCAS tests.”188 While this intention is laudable in that it maintains the focus on high expectations for students who take the Alternate Assessment, the Participation Guidelines provide no information about how the Alternative Assessment will be validated or normed.189 Moreover, the DOE clearly wants to discourage the use of the Alternate Assessment, noting that “[t]he Department intends to examine closely those schools and districts where the number of students taking alternate assessments is unusually high and/or fluctuates from one year to the next.”190
Tests, when properly used, can improve the overall quality of education by informing decisions that promote learning.191 When states use tests which are intended to set higher standards for education overall as gatekeepers for promotion or high school graduation, however, they run the risk of unfairly denying educational opportunities to individual students.192 Students with disabilities have unique qualities that augment this risk of unfair denial of educational opportunities when high-stakes tests are misused.193
Because of the nature of their disabilities, it may take students with disabilities longer to learn the material than is typically allotted in general education.194 This slower pace must be considered when implementing large-scale high-stakes testing.195 Moreover, classroom instructional techniques affect high-stakes testing; while special educators are skilled at accommodating instruction to fit students’ strengths, these instructional practices are not always appropriate in the context of large-scale testing and may hamper students with disabilities when they are faced with high-stakes tests.196 Finally, some students are not exposed in any meaningful way to the types of accommodations that are in high-stakes testing.197 Because of their effects on students with disabilities, high-stakes tests are subject to due process and non-discrimination challenges.198 While these problems are inherent to all high-stakes tests, Massachusetts’ efforts with MCAS and the MCAS Alternate Assessment are instructive in examining these and deriving a more effective approach by which to include students with disabilities in high-stakes testing programs.
Courts often have held that the opportunity to receive a diploma is a constitutionally protected interest.199 In considering whether Massachusetts’ use of the MCAS to determine eligibility for a diploma unconstitutionally denies students that right, a court would first try to identify the objectives of the MCAS “in clear terms.”200 The two most [*PG1166]common objectives are (1) to monitor student performance over time and inform educators about appropriate interventions and/or courses of action for improved learning; and (2) to act as a gatekeeper “so that failure has particular and real consequences for the students taking the test”—most often denial of promotion or of a high school diploma.201 Massachusetts seems to offer a third possibility: to monitor the effectiveness of individual schools and school districts.202 Even though MCAS appears to be intended for all three of these objectives, the most controversial is its role as gatekeeper for receipt of a high school diploma.203 Nonetheless, courts generally defer to the judgement of a state legislature in these types of policy decisions.204 Thus, a court would probably have to acknowledge that the Commonwealth’s objectives are legitimate and reasonable.205
Second, a court would consider whether students, parents and educators received adequate notice of the test and its consequences.206 Given the current controversy over the Curriculum Frameworks, the standards upon which the MCAS is based, and the on-going revisions to them, it is difficult to imagine how any student could receive adequate notice of what the test will cover.207 Although the high-stakes consequences for students do not take effect until 2003,208 some teachers and administrators are already feeling reper[*PG1167]cussions from the first two administrations of the MCAS.209 Moreover, the state has failed to explain how alternate assessments will factor into the aggregate scores for the school and the district and whether students who take alternate assessments are eligible for a high school diploma.210
Third, the court also would have to determine whether the MCAS is “fundamentally unfair” to the student or students who are challenging it.211 This inquiry would focus on whether students have had the opportunity to learn the material being tested.212 In the case of students with disabilities who, like the plaintiffs in Brookhart and Debra P., could be denied a high school diploma even though they have achieved their IEP goals and objectives, this denial certainly would rise to the level of fundamental unfairness.213 This unfairness would arise, in part, because there is an inherent conflict between the IDEA/Chapter 766 requirement of an individualized plan214 based on the achievement of personal developmental and educational goals and the IASA requirement that states develop standards applicable to “all children.”215 The IASA requirement presumes that these standards will be appropriate for all children, while the special education statutes recognize that all children are unique.216 Although it is certainly true that all students can learn,217 the same standards and curriculum might not be equally appropriate for all students. This is not to say that educators should not have high expectations for all students, including those with disabilities. Indeed, the United States Congress explicitly found that educational programs for students with disabilities are made more effective by “having high expectations for such children and ensuring their access in the general curriculum to [*PG1168]the maximum extent possible.”218 When referring to the IASA standards, however, Congress noted that students with disabilities first must “meet developmental goals” set out in the student’s IEP—thereby recognizing the significant differences in students’ ability to learn.219 While an effective teacher can include students with disabilities in regular education lessons that concentrate on state learning standards, the focus of instruction for these students often remains these personal developmental goals.220
Students with disabilities, then, might need to concentrate on more basic skills throughout their prolonged school careers (students with disabilities are entitled to continue to attend public schools until they graduate or turn twenty-two).221 If these skills are the focus of their education, as determined by the IEP Team and implemented by school professionals, these students cannot be said to have been afforded an opportunity to master state learning standards; requiring them to meet the state standards would thus be fundamentally unfair.222
To some extent, the MCAS Alternate Assessment is an effort at resolving these tensions.223 The Participation Guidelines, which are intended to guide IEP teams in determining how a student will participate in MCAS, however, focus on the method of administration—whether students should have access to a particular accommodation when taking the test—rather than on the particular subject-matter on which the student actually should be assessed.224 Insofar as this is the case, the MCAS Alternate Assessment fails to resolve either the tension between IASA/MERA and IDEA/Chapter 766 or the due process concerns about fairness.
These same tensions give rise to some concerns about the validity of the MCAS as a gatekeeper for receipt of a high school diploma. In Debra P., the Court of Appeals for the Fifth Circuit recognized that the validity of a high-stakes assessment turned on whether the test measured “things that are currently taught” to the students who are being [*PG1169]assessed.225 Similarly, the APA Standards note that “[i]n addition to modifying tests and test administration procedures for people who have disabilities, evidence of the validity for inferences drawn from these tests is needed. Validation is the only way to amass knowledge about the usefulness of modified tests for people with disabilities.”226 Instruction for students with disabilities generally focuses on their IEP goals and objectives.227 In effect, the IEP is a kind of curriculum guide for these students. To the extent that IEP goals and objectives diverge from state standards, students with disabilities are not afforded an opportunity to learn the material on the MCAS.228 Since the IEP Team must consider the student’s unique capabilities and needs there are bound to be a significant number of students for whom instruction focusing on state learning standards remains a distant hope. This is not to suggest that IEP Teams ought to have lower expectations for these students, but rather that the concept of high expectations is shifted somewhat because of the uniqueness of the student.229 Students with unique needs should be held to high expectations that consider both those needs and the specific educational program that the student receives pursuant the IEP.230 When students have not been taught the material on a test, the test is generally considered invalid for use with those students.231
Under the regulations that interpret Title VI, Title IX, Section 504 and the ADA, a test may be challenged if it has the effect of discriminating against a particular group of students.232 Even in the absence of intentional discrimination, a test that is used to deny an educational benefit—like a diploma—may violate these statutes if the success rate for members of a protected class is “significantly lower (or the failure rate is significantly higher) than would be expected from a random distribution.”233 Educators and legislators are obligated to monitor the results of the assessments to determine whether there are [*PG1170]significant disparities among student groups.234 Although “[t]here is no rigid mathematical threshold regarding the degree of disproportionality required” the statistical disparity must be sufficiently substantial to raise an inference that the challenged practice caused the disparate results.235 Responsible educators admit that two administrations of MCAS is insufficient evidence upon which to base any conclusions, but data collected thus far indicates that students with disabilities fail the MCAS at a much higher rate than other students.236 Thus, MCAS is most likely discriminatory in violation of the ADA and Section 504.
Clearly, states must improve their abilities to provide meaningful assessments and reports for students with disabilities. For students who typically are excluded from state-wide assessments, however, the need for improvement is even more dramatic because these students will not be considered when decisions are made about how to improve programs, which may lead to the denial of educational oppor[*PG1171]tunities that other students enjoy.237 States must develop valid alternate assessments. These assessments must be individualized to focus on the student’s unique IEP goals and objectives rather than on goals that are supposed to be applicable to all students.
By 1997, only twelve states were reporting test-based outcome data on students with disabilities.238 In Massachusetts, students who take an alternate assessment currently receive a “zero” or “failing” grade on the state report.239 If alternate assessments continue to yield an automatic “zero” score, school principals, whose salaries may be tied to improving scores, may prefer to force students to take MCAS with some accommodations even if the alternate assessment is more appropriate for that student.240
The NCEO disagrees, pointing out that “[t]here are problems with assuming that the alternate assessment should be completely individualized. . . . The primary problem with this approach is that attainment of IEP goals cannot easily be aggregated for accountability purposes and IEP goals do not serve as a total curriculum for a student.”241 This argument is unconvincing. Learning standards do not serve as a total curriculum for nondisabled students any more than IEP goals and objectives do for students with disabilities. Admittedly the NRC says that current knowledge and testing technology are insufficient to allow the design of accommodations or alternate assessments whose scores are easily compared to and aggregated with standard scores.242 The mere fact that states find it difficult to aggregate scores, however, does not relieve them of the responsibility to explore new and better avenues for reporting. As Justice Brandeis once [*PG1172]pointed out, “[t]o stay experimentation in things social and economic is a grave responsibility.”243 In an arena as important as education, certainly states can be expected to develop innovative reporting methods if encouraged to do so. The NRC suggests as much in its call for more research into the development of valid assessment methods for students with disabilities.244
Eliminating high-stakes tests or embracing them “to the exclusion of all other educational criteria that should guide the educational program” are equally poor choices.245 Rather, tests should be only one of many valuable tools that can ensure “(1) students and their parents know what the students are expected to learn; (2) teachers and other educators know what needs to be taught; and (3) administrators know the kind of professional development opportunities that should be pursued so that teachers can help their students reach the [established standards].”246 The establishment of high standards may yet lead to improved educational outcomes for all students. For students with disabilities who cannot participate in high-stakes tests with accommodations, this outcome is significantly more likely if alternate assessments are as individualized as these students’ educational programs.
IASA provides no significant guidance for developing assessments to meet the needs of students with disabilities. In particular, states have found it difficult to include those students with disabilities who can not participate in high-stakes tests with accommodations. IDEA requires that these students be included in state-wide assessment initiatives by July 1, 2000. This Note examined the import of the various federal statutes relating to high-stakes assessments and explored how states might include students who require alternate assessments in statewide assessment initiatives. Using Massachusetts as a case study, important considerations—including due process and non-discrimination challenges—in high-stakes assessments for students who may be denied diplomas as a result of their failure on high-stakes tests like MCAS can be reviewed. Finally, states must develop alternate [*PG1173]assessments that are based on the IEP goals and objectives of each student who requires such an assessment.