NCLB: Principles and Mandates for Special Education
NCLB is the most recent reauthorization of the Elementary and Secondary Education Act (ESEA). Since its passage, it has dramatically expanded the role of the federal government in education, demanded accountability of schools, and provided guidelines for meeting accountability standards. The law requires all students to reach proficiency in reading and math by 2014. Mandatory testing to measure proficiency must be performed until 100% proficiency is reached. (Yell, Katsiyannas, & Shiner, 2006, p. 32). These accountability provisions have had a huge impact on schools which include complex data collection procedures that measure “response to intervention,” in students qualifying for special education services and putting pressure on schools to eliminate aspects of the curricula that do not address literacy and math (Kozol, 2005. p. 118), to reduce their services to low performing students, and otherwise marginalize special education.
NCLB is unprecedented in its power and scope. It affects all areas of education but has affected special education in unique ways. NCLB’s provisions for accountability, including mandated adequate yearly progress, statewide assessments, and new standards for curricula and providers, have caused the most changes (Yell, Drasgow, & Lowrey, 2005, p. 130). NCLB includes special education in all aspects of its accountability system in order to make schools accountable to the needs of struggling students and students with disabilities (Yell, Katsiyannas, & Shiner, 2006, p. 34). In this way, NCLB attempts to align its aims with other civil rights laws affecting education, school reform, and welfare reform (Turnbull, 2005).
In general, the aims of NCLB with regard to special education are in alignment with most state and local education goals since they require greater participation by students with disabilities in the general education curricula and hold students and teachers to higher expectations (Nagle & Yunker, 2006, p. 32-33). These aims are in line with the goals of special education as well. In fact, NCLB marks the first time federal law clearly mandated that schools should be held accountable for the progress of students with disabilities (Allbritten, Mainzer, & Ziegler, 2004, p. 74).
Specific Provisions of NCLB and Their Consequences for Special Education
In addition to the mandates of NCLB, school administrators report facing some significant challenges including testing that is inappropriate to special education populations and that negatively impact learning, increased demands for data reporting, and increased workload and qualification standards for hiring (Purcell, East, & Rude, 2005, p. 28). Some of the specific provisions in NCLB work squarely against the goals of special education and the mandates given in the Individuals With Disabilities Education Act (IDEA) and its reauthorization (2004) even as the reauthorized IDEA incorporated much of NCLB. These provisions have many negative consequences “including marginalizing the students it intends to help” (Allbritten, Mainzer, and Ziegler, 2004, p. 75). We will examine some to the reasons for these negative consequences as they are reported in the literature.
Adequate Yearly Progress (AYP)
In order to meet NCLB’s goals of 100% student proficiency, NCLB requires all students to make adequate yearly progress (AYP) toward that goal. NCLB lays out specific criteria for meeting AYP goals.
In order to make AYP, schools must have (a) at least 95% of enrolled students participate in the testing program (by entire student body and in each subgroup [including special education]), (b) all students and all subgroups meet AYP targets for that year, and (c) all students and all subgroups meet AYP targets for graduation or attendance (Yell, Katsiyannas, & Shiner, 2006, p. 33).
Safe Harbor provisions of NCLB offer a way for a district to make its AYP goals when a particular subgroup, e.g., special education, does not meet its AYP requirements. The Safe Harbor provisions require
(a) at least 95% of students enrolled participate in statewide testing (by the particular subgroup [e.g., special education], (b) all students and all subgroups score at least proficient at the state’s AYP targets for that year and have the percentage of students in the subgroup (s) that did not score at least proficient decrease by at least 10%, and have students in the subgroup(s) make progress in graduation rate or attendance and (c) all students and the other subgroups meet AYP targets for graduation and attendance (Yell, Katsiyannas, & Shiner, 2006, p. 33).
The intent of these requirements is clear. It builds motivation, backed by strict federal funding consequences, for SEAs and LEAs to pay attention to its lowest achieving students, many of whom are in special education. The reality, however, as Jonathan Kozol has pointed out (2005), is that the pressure exerted as a result of AYP requirements on faculty, curricula, and students has increased drop-out rates among low-performing students and students with special needs and penalized the schools from which they dropped out. NCLB clearly increases the “Achievement Gap” in American schools. In fact, major studies have found that “states with the highest proportions of minority students implemented accountability systems that exert the most pressure” and students with low SES, English Language Learners, and students with special needs suffered the most from changes made because of AYP requirements (Levitt, 2008, p. 53). “The more student subgroups schools have, research shows, the less likely they are to meet AYP, resulting in what has been dubbed a ‘diversity penalty’ and giving schools a powerful disincentive for diversifying their student populations” (Granger, 2008, p. 219).
The problems impact nearly all schools, however. Purcell, East, & Rude (2005) report that most school districts (96%) are having difficulties implementing the accountability requirements of NCLB. Meeting AYP requirements is by far the most difficult aspect of NCLB according to district administrators (p. 28). Penalties include, in addition to loss of federal funding, transferring students to other schools, closure, or reorganization as a charter school, and following the original provisions of NCLB, perhaps fomenting popular support for voucher programs (Granger, 2008, p. 220).
Statewide assessments are the primary way that NCLB holds schools accountable for student performance. NCLB allows students with “significant cognitive disabilities” to take alternate achievement assessments and to be held accountable to these alternate standards. Neither NCLB nor its implementing regulations (34 CFR § 200) define what “significant cognitive disabilities” are. At the same time, NCLB puts a cap on the number of students who can take an alternative assessment and still be counted in AYP calculations. Any number of students above this cap—currently set at 1% at each grade level that is tested–will be counted as not meeting minimum proficiency standards (Yell, Katsiyannas, & Shiner, 2006, p. 35-36).
IEP Team Obligations
First and foremost, NCLB makes it clear that the role of the IEP (Individual Education Plan—an IDEA requirement) team is to fulfill the accountability and assessment mandates of NCLB. “The IEP team or Section 504 team decides how the student will participate, not whether the student will participate” in statewide assessments (Yell, Katsiyannas, & Shiner, 2006, p. 34). While the IEP team makes all educational decisions regarding the student concerned, it cannot make any decision with regard to the way assessment scores are counted in AYP calculations. Nagle and Yunker (2006) assert that “this marks a fundamental change in the way the IEP is used, as, traditionally, IEP teams have control over the educational experience that a student with a disability receives” (p. 33). The IEP team decides the level of access a student has to the general curriculum, the kinds of accommodations that will be provided for the student in all aspects of her or his education, including all assessments, and the level and mode of participation relative to grade-level standards or alternative standards (Yell, Katsiyannas, & Shiner, 2006, p. 36).
IEP teams, since they must primarily be concerned with the needs of the student will still consider these needs in relation to the statewide assessments. Since neither NCLB nor its implementing regulations define what constitutes a “significant cognitive disability,” this task is ultimately left the IEP team. IEP teams, by the nature of their task, will not have any consideration of overall population statistics, nor the size of the special education subgroup in AYP calculations. These concerns are left to administrators. Thus the number of students taking alternate assessments is not controlled, even though NCLB mandates a 1% cap. “Out-of-level testing (i.e., off-grade level testing) is considered a form of alternate assessment. All students who take an alternate assessment will be scored as either proficient of not proficient” (Yell, Drasgow, & Lowrey, 2005, p. 135). The conflicts between IDEA and NCLB can manifest themselves as conflicts between the aims of special education and those of district and school administration. Thus, “the participation requirements in NCLB, coupled with the fact that scores of students with disabilities count in the school accountability system, could have some negative consequences as schools and LEAs act to protect their ratings” (Nagle & Yunker, 2006, p. 34). In short, NCLB creates a conflict of interest between the school administration and the special education programs within the school. Since special education services hurt the school, it becomes desirable, from the point of view of the administration, not to have significant special needs populations (i.e., more than 1%). Thus NCLB makes discrimination more likely.
The discussion above pertains to the operation of regular schools. While virtually no public school has a special needs population of less than 1%, special schools formed to implement specialized instruction for students with disabilities have 100%. In these schools, it is impossible that they could ever meet AYP and they will all be shut down by 2014 under the provisions of NCLB (Smyth, 2008).
Highly Qualified Teachers and Paraprofessionals
Because of the difficulties surrounding AYP and the heavy burden high-stakes assessments place on special education, morale among special education teachers is a concern. This is exacerbated by the definition of Highly Qualified Teachers in NCLB. Rural school districts, Title 1 schools, and districts in less attractive areas are especially affected. In such districts, where the hiring and retention of special education teachers is already difficult, administrators face the even greater difficulty of hiring teachers with a special education credential and multiple content area certifications because of NCLB definitions. Add to this the reality that a small or under-resourced district will isolate the special education teacher and make her or him accountable for failing students and morale issues in special education become severe. “If the ‘district’ does not make AYP because of the special education subgroup, then the ‘failure’ reflects specifically on the teacher” (Purcell, East, & Rude, 2005, p. 28).
Scientifically Based Instruction (SBI)
There is no definition of SBI in NCLB nor any of its implementing provisions. NCLB requires that instruction be based on scientifically based research (SBR) which it defines as research involving rigorous, systematic, and objective methods. Because the prospect of mandating curricula based on SBR is so complex and controversial, the U.S. Department of Education has set up the What Works Clearinghouse (WWC), a database of approved, effective and replicable educational interventions and approved curricular materials (Collins & Salzberg, 2005, p. 60).
Although there is much controversy surrounding what might constitute SBI, there is also a growing consensus in the research literature. NCLB itself has spurred a tremendous amount of new research. Collins and Salzberg (2005) point out that most of this research reveals yet another contradiction between the aims and ideals of IDEA (and special education generally) and the accountability requirements of NCLB. The preponderance of research done to establish SBI has been done on groups. While statistical analyses of groups do indicate success rates within groups, such research does not necessarily indicate how, or if, any particular student will respond to the educational techniques being studied. Of course, the effects of specific educational interventions on individual students is the primary, perhaps the only, concern of special education which, under an IDEA mandate, has as its primary point of reference and guidance, the IEP. “Special educators are generally concerned with the behavior of individual students. This is particularly true of special educators for students with severe disabilities…” (p. 62).
NCLB has had some positive effects on special education, not least of which is the enormous attention that general education teachers and administrators now give to the lowest achieving students in the schools. Never before has the federal government clearly required schools to become accountable for the performance of students with disabilities. Yet there are many consequences of the law, some of which work directly counter to these positive developments. Specific provisions in NCLB make special education students the most problematic for administering the school and its funding. Specifically, the AYP requirements of NCLB have undermined special education in a variety of ways and produced deep conflicts with IDEA requirements. Though the lower courts have recently said that IDEA “must give way” to NCLB (Walsh, 2008) these conflicts, more than six years old now, have yet to be resolved by the Supreme Court as obviously they will have to be since these conflicts go straight to the very concept of special education. The law, as Jonathan Kozol (2005) points out, increases segregation of all low performing students (201-205) and especially increases the marginalization of special education students. It is our hope that, as these consequences become widely known and discussed, legislative corrections can begin to be formulated.
Allbritten, D., Mainzer, R., Ziegler, D. (2004). Will Students with Disabilities Be Scapegoats for School Failures? Teaching Exceptional Children, 36 (3), 74-75.
Collins, S., Salzberg, C. (2005). Scientifically Based Research and Students With Severe Disabilities: Where Do Educators Find Evidenced-Based Practices? Rural Special Education Quarterly, 24 (1), 60-63.
Granger, D. A. (2008). No Child Left Behind and the Spectacle of Failing Schools: The Mythology of Contemporary School Reform. Educational Studies, 43, 206-228.
Kozol, J. (2005). The Shame of the Nation: The Restoration of Apartheid Schooling in America. New York: Three Rivers Press.Levitt, R. (2008). Freedom and Empowerment: A Transformative Pedagogy of Educational Reform. Educational Studies. 44, 47-61.
Nagle, K., Yunker, C. (2006). Students with Disabilities and Accountability Reform: Challenges Identified at the State and Local Levels. Journal of Disability Policy Studies, 17 (1), 28-39.
Purcell, L. L., East, B., Rude, H. A. (2005). Administrative Perspectives on the No Child Left Behind Act (NCLBA) for Students with Disabilities in Rural Settings. Rural Special Education Quarterly, 24 (1), 27-31.
Who Is No Child Left Behind Leaving Behind? Clearing House, Jan/Feb2008, Vol. 81 Issue 3, p133-137.
Turnbull, H. R. (2005). Individuals with Disabilities Education Act Reauthorization: Accountability and Personal Responsibility. Remedial and Special Education, 26 (6), 320-326.
Walsh, M. (2008). NCLB Trumps IDEA, Appeals Court Rules. Education Week, 27 (24), 7-7.
Yell, M. L., Drasgow, E., Lowrey, K. A. (2005). No Child Left Behind and Students with Autism Spectrum Disorders. Focus on Autism and Other Developmental Disabilities, 20 (3), 130-139.
Yell, M. L., Katsiyannas, A., Shiner, J. G. (2006). The No Child Left Behind Act, Adequate Yearly Progress, and Students with Disabilities. Teaching Exceptional Children, 38 (4), 32-39.