By Fritz Edelstein
March 1, 2004

In response to a growing outcry of concern from states, cities and school systems about how schools would be identified as "in need of improvement," the U.S. Department of Education has issued two new rules that address students with disabilities and English language learners.

In essence, the Department has eased the rules for including the test results of these students test results when calculating the academic progress individual schools and school districts are making on a yearly basis. This is described in the Act as adequate yearly progress or its acronym AYP. This past year, thirty percent of the nation's public schools were designated as "in need of improvement." The next release of these lists by state will be this coming July and August.

The law requires the disaggregation of school and school district data into defined subgroups of students. The test data are of the state test results in reading and math from grades three through eight and at least once in high school. This annual testing requires schools to meet higher thresholds each year to demonstrate they are making progress. Numerous groups objected to the inclusion of certain students, especially those with disabilities and English-language learners, in the data due to the potential adverse affect on a school's progress.

The most recent new regulation was issued for schools with students who have limited knowledge of English. States will be permitted to grant a one-year transition period to schools with English-language learners in their first year in U.S. public schools, which means that these students will be temporarily not included in their school's test scores. The new regulation further states that students will continue to be counted as members of the "limited English proficient" subgroup for two years after they learn English. Thus, once a student learns English he or she will not be dropped from being counted as part of the subgroup for two years. This had been a major concern because of how AYP was being calculated and the immediate loss of counting students once they became English proficient. This will relieve some pressure on school districts with significant immigrant populations.

Another new regulation was issued in December affecting students deemed to have the most significant cognitive disabilities by their states. These students would be tested against standards appropriate for their intellectual development and, for accountability purposes, their scores would be counted as part of their school's performance. The intent is two fold: to protect children with disabilities from being excluded from accountability systems that provide valuable information to parents and educators and to ensure that schools receive credit for the progress of all children. The number of "proficient" scores counted for AYP may not exceed one percent of all students in the grades tested, although states may appeal for a higher limit. Without this flexibility, those scores would have been measured against grade-level standards and considered "not proficient" and thus labeling the school "in need of improvement."

l "in need of improvement."

Opposition to the statute is not limited to these provisions. Numerous states have either begun to take action or are contemplating opting out of the requirements of the statute. These protests have been by both parties in the state legislatures in such states as Utah, Vermont, West Virginia, Washington, Connecticut, Virginia, Arizona, Hawaii, Maine, Minnesota, New Hampshire, New Mexico, Tennessee, Ohio and Indiana. There are numerous complaints ranging from intrusive to underfunded to an invasion of states rights. To opt out means that there would be no federal education funds for the Act's authorized programs coming to the state or its cities. This will have a significant impact on education funding for city school systems where the bulk of at-risk children are enrolled if the states opt out of participating. Mayors should be aware of this problem and the impact on educational programs and services within their city and school system.

and services within their city and school system.