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92-309 PDF 2004

NO CHILD LEFT BEHIND: 

IMPROVING RESULTS FOR 

CHILDREN WITH DISABILITIES

HEARING

BEFORE THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

March 3, 2004

Serial No. 108-45

Printed for the use of the Committee on Education and the Workforce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://edworkforce.house.gov 

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Cass Ballenger, North Carolina 

Peter Hoekstra, Michigan 

Howard P. ‘‘Buck’’ McKeon, California 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

James C. Greenwood, Pennsylvania 

Charlie Norwood, Georgia 

Fred Upton, Michigan 

Vernon J. Ehlers, Michigan 

Jim DeMint, South Carolina 

Johnny Isakson, Georgia 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Tom Cole, Oklahoma 

Jon C. Porter, Nevada 

John Kline, Minnesota 

John R. Carter, Texas 

Marilyn N. Musgrave, Colorado 

Marsha Blackburn, Tennessee 

Phil Gingrey, Georgia 

Max Burns, Georgia 

George Miller, California 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Ed Case, Hawaii 

Rau ́l M. Grijalva, Arizona 

Denise L. Majette, Georgia 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York

Paula Nowakowski, Staff Director 

John Lawrence, Minority Staff Director 

(III)

C O N T E N T S 

Page

Hearing held on March 3, 2004 .............................................................................. 1

Statement of Members: 

Boehner, Hon. John A., a Representative in Congress from the State 

of Ohio ............................................................................................................ 2

Prepared statement of ............................................................................... 3

Miller, Hon. George, a Representative in Congress from the State of 

California ....................................................................................................... 4

Norwood, Hon. Charlie, a Representative in Congress from the State 

of Georgia ...................................................................................................... 47

Porter, Hon. Jon C., a Representative in Congress from the State of 

Nevada ........................................................................................................... 48

Statement of Witnesses: 

Durkin, Dr. Pia, Superintendent of Schools, Narragansett School System, 

Narragansett, Rhode Island ......................................................................... 14

Prepared statement of ............................................................................... 16

Rhyne, Dr. Jane, Assistant Superintendent for Exceptional Children, 

Charlotte-Mecklenburg Schools, Charlotte, North Carolina ..................... 11

Prepared statement of ............................................................................... 13

Sabia, Ricki, Parent and Associate Director of Public Policy, National 

Down Syndrome Society ............................................................................... 6

Prepared statement of ............................................................................... 8

Thurlow, Dr. Martha, Director, National Center on Education Outcomes, 

University of Minnesota ............................................................................... 17

Prepared statement of ............................................................................... 19

Additional materials supplied: 

American Federation of Teachers, Statement submitted for the record ...... 41

American Occupational Therapy Association, Statement submitted for 

the record ....................................................................................................... 49

Johnston, Rosemary King, Member, National Education Association, 

Statement submitted for the record ............................................................ 54

National Center for Learning Disabilities, Statement submitted for the 

record ............................................................................................................. 51

(1)

NO CHILD LEFT BEHIND: IMPROVING 

RESULTS FOR CHILDREN WITH DISABILITIES 

Wednesday, March 3, 2004

U.S. House of Representatives 

Committee on Education and the Workforce 

Washington, DC 

The Committee met, pursuant to notice, at 10:20 a.m., in room 

2175, Rayburn House Office Building, Hon. John Boehner (Chairman of the Committee) presiding. 

Present: Representatives Boehner, McKeon, Johnson, Norwood, 

Ehlers, Biggert, Platts, Tiberi, Osborne, Kline, Carter, Blackburn, 

Gingrey, Burns, Miller, Kildee, Payne, Andrews, Tierney, Kind, 

Wu, Holt, McCollum, Grijalva, Majette, Van Hollen, and Bishop. 

Staff present: David Cleary, Professional Staff Member; Amanda 

Farris, Professional Staff Member; Kevin Frank, Professional Staff 

Member; Melanie Looney, Professional Staff Member; Sally 

Lovejoy, Director of Education and Human Resources Policy; 

Krisann Pearce, Deputy Director of Education and Human Resources Policy; Deborah L. Samantar, Committee Clerk/Intern Coordinator; Jo-Marie St. Martin, General Counsel; Liz Wheel, Legislative Assistant; Alice Cain, Minority Legislative Associate/Education; Tom Kiley, Minority Press Secretary; John Lawrence, Minority Staff Director; Alex Nock, Minority Legislative Associate/

Education; and Joe Novotny, Minority Legislative Staff/Education. 

Chairman BOEHNER. A quorum being present, the Committee on 

Education and the Workforce will come to order. We’re having 

problems with our chairs. We got new chairs over the break, and 

we’re still trying to figure out how to adjust them. So if you see 

us disappear, it’s by accident. 

[Laughter.] 

Chairman BOEHNER. We’re holding this hearing today to hear 

testimony on ‘‘No Child Left Behind: Improving Results for Children with Disabilities.’’ Under Committee Rule 12(b), opening 

statements are limited to the Chairman and Ranking Member. If 

other Members have written statements, they may be included in 

the hearing record. And with that, I ask unanimous consent for the 

hearing record to remain open for 14 days to allow Member statements and other extraneous material referred to today during this 

hearing to be submitted in the official record. 

Without objection, so ordered. 

2

STATEMENT OF HON. JOHN A. BOEHNER, CHAIRMAN, 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

Chairman BOEHNER. Good morning, everyone. I’m pleased to welcome our guests, witnesses, and Members to this morning’s hearing. We’re looking forward to the comments from our witnesses and 

the insight that you’ll provide on the importance of including students with disabilities in state accountability systems under No 

Child Left Behind legislation. 

I’m also pleased to announce that this morning’s full Committee 

hearing is another in the continuing series we are holding to examine state and local progress in implementing No Child Left Behind. 

I want to thank Mr. Miller and his staff for agreeing to work in 

a bipartisan manner on this hearing. I’m certain that if we continue to work together, we can ensure improved educational opportunities for all of our nation’s students. 

As many of you know, No Child Left Behind plays a vital role 

in ensuring that children with special needs receive the high quality education that they deserve, while providing states and local 

school districts significant flexibility to achieve this goal. Working 

in conjunction with IDEA, NCLB represents a truly monumental 

shift in the way we perceive students with disabilities and how 

they fit into state accountability and assessment systems to ensure 

that all students are learning. 

The question of whether to include students with disabilities in 

state-developed accountability systems received significant attention during the congressional consideration of NCLB. After a great 

deal of discussion, we reached a bipartisan consensus that NCLB 

should ensure that all students can learn and schools should be 

held accountable for the academic progress of all children. A student with disabilities should not be discounted simply because he 

or she does not learn at the same rate or in the same manner as 

other students. 

Among the greatest benefits of NCLB are increased expectations. 

For the first time in history, we are holding school districts accountable for the annual progress of all of their students, including 

students with disabilities. Disability does not mean inability, and 

through NCLB we are confronting the misconception that students 

with disabilities cannot learn. 

While this is truly a victory for students with disabilities, it is 

also a challenge for states and schools. And we recognize there are 

significant pressures surrounding the inclusion of students with 

disabilities in state accountability systems. To rise to meet this 

challenge, we must ensure states, districts, schools and the Federal 

Government are working together to provide students with disabilities increased opportunities for academic achievement. 

And I’m pleased by the efforts of the Department of Education 

and what they have done in the past months to provide states and 

school districts with needed flexibility to appropriately include all 

students with disabilities in state accountability systems. The new 

regulation allows 1 percent of all students—roughly 10 percent of 

students nationwide in special ed—to take an alternative assessment aligned to alternate standards. This is an important step in 

ensuring that states and local districts have the necessary flexiVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 H:\DOCS\92309 EDUWK PsN: NNIXON
3

bility to respond to a child’s individualized education program 

while still meeting the requirements of No Child Left Behind. 

In addition, I’m also encouraged by Secretary Paige’s recent letter to state officials outlining the procedure for states and local districts to apply for additional flexibility under the regulation. And 

I’m optimistic that the department’s efforts will ensure that students with disabilities are appropriately included in state-developed assessment systems. 

Finally, I think it’s important to point out that a child’s individualized education program dictates how a child is assessed, and not 

whether a child is assessed. Since 1997, IDEA has required that 

students with disabilities be included in general education system 

and the assessment system as appropriate for the individual child. 

NCLB works in unison with the requirements of IDEA by ensuring 

students with disabilities are included in these assessment systems. 

We remain committed to the importance of including students 

with disabilities in the accountability and assessment systems of 

No Child Left Behind, while continuing to ensure that the system 

works fairly for all involved. And the testimony we expect today is 

vital to that task, and we look forward to hearing from each of our 

witnesses today. 

Let me yield to my friend and colleague and partner in this effort, George Miller. 

[The statement of Chairman Boehner follows:]

Statement of Hon. John A. Boehner, Chairman, Committee on Education 

and the Workforce 

Good morning. I’m pleased to welcome our guests, witnesses, and members to this 

morning’s hearing. We are looking forward to your comments, and the insight you 

will provide on the importance of including students with disabilities in state accountability systems under the historic No Child Left Behind (NCLB) legislation. 

I’m also pleased to announce that this morning’s full committee hearing is another 

in the continuing series we are holding to examine state and local progress in implementing NCLB. I would like to thank Mr. Miller and his staff for agreeing to work 

in a bipartisan manner on this hearing. I’m certain that if we continue to work together we can ensure improved educational opportunities for all of our nation’s students. 

As many of you know, NCLB plays a vital role in ensuring children with special 

needs receive the high-quality education they deserve, while providing states and 

local school districts significant flexibility to achieve this goal. Working in conjunction with the Individuals with Disabilities Education Act (IDEA), NCLB represents 

a truly monumental shift in the way we perceive students with disabilities and how 

they fit into state accountability and assessment systems to ensure all students are 

learning. 

The question of whether to include students with disabilities in state-developed 

accountability systems received significant attention during congressional consideration of NCLB. After a great deal of discussion, we reached a bipartisan consensus 

that NCLB should ensure that all students can learn, and schools should be held 

accountable for the academic progress of all children. A student with disabilities 

should not be discounted simply because he or she does not learn at the same rate 

or in the same manner as other students. 

Among the greatest benefits of NCLB are increased expectations—for the first 

time in history, we are now holding school districts accountable for the annual 

progress of all their students, including students with disabilities. Disability does 

not mean inability. Through NCLB, we are confronting the misperception that students with disabilities can not learn. 

While this is truly a victory for students with disabilities, it is also a challenge 

for states and schools. We recognize there are significant pressures surrounding the 

inclusion of students with disabilities in state accountability systems. To rise to 

meet this challenge, we must ensure states, districts, schools, and the federal govVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6621 H:\DOCS\92309 EDUWK PsN: NNIXON
4

ernment are working together to provide students with disabilities increased opportunities for academic achievement. 

I’m pleased by the efforts the U.S. Department of Education has taken in past 

months to provide states and school districts with needed flexibility to appropriately 

include all students with disabilities in state accountability systems. The new regulation allows one percent of all students—roughly ten percent of students nationwide in special education—to take an alternate assessment aligned to alternate 

standards. This is an important step in ensuring states and local districts have the 

necessary flexibility to respond to a child’s individualized education program (IEP) 

while still meeting the requirements of NCLB. 

In addition, I’m also encouraged by Secretary Paige’s recent letter to state officials 

outlining the procedure for states and local school to apply for additional flexibility 

under this regulation. I’m optimistic that the Department’s efforts will ensure students with disabilities are appropriately included in state-developed assessment systems. 

Finally, I think it is important to point out that a child’s individualized education 

program dictates how a child is assessed—not whether a child is assessed. Since 

1997, IDEA has required that students with disabilities be included in the general 

education system and the assessment system, as appropriate for the individual 

child. NCLB works in unison with the requirements of IDEA, by ensuring students 

with disabilities are included in state accountability systems. 

We remain committed to the importance of including students with disabilities in 

the accountability and assessment systems of NCLB, while continuing to ensure 

that the system works fairly for all involved. Your testimony is vital to that task, 

and we look forward to hearing from each of you today. 

With that, I yield to my colleague from California, Mr. Miller. 

STATEMENT OF HON. GEORGE MILLER, RANKING MEMBER, 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

Mr. MILLER. Thank you, Mr. Chairman. I’m looking forward to 

today’s hearing because it gets at the heart of what No Child Left 

Behind is about—making sure that children have a real opportunity to succeed to their full potential. Our witnesses have great 

expertise in working with children with disabilities, and I’m eager 

to hear from them about how the law is working for these children 

so far. 

No Child Left Behind tried to address a number of problems that 

plague children with disabilities over the years, problems like dropout rate that was twice that for children without disabilities, a low 

enrollment rate of students with disabilities in higher education, 

and the poor reading levels of children with disabilities. 

I have two basic questions about the impact of No Child Left Behind for our witnesses today. What is the impact of high expectations for students with disabilities on these students so far? And 

how are schools and teachers changing how they identify and teach 

children with disabilities? I’m particularly interested in how No 

Child Left Behind is affecting the longstanding problem of 

misidentification of children for special education. 

It is of great concern that children who may have different learning styles or simply need additional attention are labeled, or mislabeled, and may spend many years or even their whole lives 

achieving below their full potential. This problem is particularly severe for students of color who all too often are inappropriately identified as special education and placed in segregated settings rather 

than mainstream. The Harvard Civil Rights Project found that 

black students are more than twice as likely as white students to 

be labeled with an emotional or behavioral disorder in 29 states 

5

and twice as likely to be labeled mentally retarded in 39 states. 

This is not a problem of our children; it’s a problem for our system. 

I am also interested in your feedback on the regulations that the 

Department of Education issued last December. What is the impact 

of the regulations that allow school districts to count alternative 

assessment scores of 1 percent of the students with the most severe 

cognitive disabilities toward AYP? 

Experts have pushed us for years on the importance of setting 

high expectations for children with disabilities, and that is exactly 

what No Child Left Behind did. It sent a message to our nation 

that every child counts. As the New York Times editorial reiterated 

the importance of this yesterday, stating that although the program needs more funds and better administration, No Child Left 

Behind is tackling one of the nation’s most critical problems—the 

substandard educational opportunities offered to poor and minority 

children, and I would add in many instances to disabled children. 

But the Times also mentioned that some in Congress are eager to 

jump ship on No Child Left Behind. I believe that that would be 

a huge mistake for poor and minority children, and I think it would 

be a huge mistake for the best interests of the disabled community. 

Now is not the time to turn our backs on children with disabilities. No Child Left Behind makes the achievement of these children an essential component of the success of our schools. We can 

and we must do everything we can to ensure that no child with disabilities is ever again left behind. 

Thank you, Mr. Chairman. 

Chairman BOEHNER. Thank you, Mr. Miller. Let me introduce 

our witnesses. Our first witness today will be Ms. Ricki Sabia. Ms. 

Sabia is the mother of David and Stephen Sabia and knows firsthand the issues involved with raising a child with a disability. Additionally, she is the Associate Director of Public Policy for the National Down Syndrome Society, and prior to her current position, 

she served as the intake coordinator for the Maryland Coalition for 

Inclusive Education. 

Ms. Sabia is also the co-chair for the Montgomery County Public 

Schools Continuous Improvement Team, whose mission is to assist 

in improving the quality of instruction in education of students 

with disabilities. 

Welcome. 

The next witness will be Dr. Jane Rhyne. And Dr. Rhyne serves 

as the Assistant Superintendent for Programs for Exceptional Children for the Charlotte-Mecklenburg School system. And prior to 

her current position, she served in this district in various capacities 

as assistant principal, principal, and the Coordinating Director for 

Programs for Exceptional Children. 

Dr. Rhyne has also been an adjunct professor at Queens College 

and Appalachian State University. 

She will be followed by Dr. Pia Durkin. Dr. Durkin is currently 

the superintendent of the Narragansett School System. Previously 

she served as the Assistant Superintendent for Unified Student 

Services at Boston Public Schools. Additionally, Dr. Durkin has 

worked as a special ed director at Boston Public Schools and Providence Public Schools. She is a member of various organizations, inVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
6

cluding the American Association of School Administrators and 

Urban Special Education Collaborative. 

And our last witness will be Ms. Martha Thurlow. Dr. Thurlow 

is the Director of the National Center on Educational Outcomes at 

the University of Minnesota, where she evaluates and addresses 

the implications of U.S. policy for students with disabilities. 

For the past 25 years, she has conducted research on special ed 

on a variety of topics, including assessment and decisionmaking, 

learning disabilities and early childhood education. 

Dr. Thurlow is the author of numerous articles, book chapters, 

and books, and is the co-editor of Exceptional Children, a research 

journal by the Council for Exceptional Children. 

We’re going to hear from all four of our witnesses, and Members 

will then ask questions. And with that, Ms. Sabia, you may begin. 

STATEMENT OF RICKI SABIA, ASSOCIATE DIRECTOR OF PUBLIC POLICY, NATIONAL DOWN SYNDROME SOCIETY AND COCHAIR, SPECIAL EDUCATION CONTINUOUS IMPROVEMENT 

TEAM, MONTGOMERY COUNTY, MARYLAND 

Ms. SABIA. Thank you. Good morning, Chairman Boehner, Congressman Miller, and Members of the Committee. As you said, I 

am here wearing three hats, first and foremost as the mother of 

David and Stephen Sabia. I am also here as Associate Director of 

Public Policy for the National Down Syndrome Society, and as the 

Co-Chair of the Special Education Continuous Improvement Team 

in Montgomery County. 

My son, Stephen, the handsome young man sitting behind us 

over there with my husband, is a fifth grade student at Cloverly 

Elementary School in Silver Spring, Maryland. He also happens to 

have Down Syndrome. After some initial battles and with persistent advocacy, we have been able to keep Stephen fully included 

in the regular education classes since kindergarten. He has always 

taken the regular assessments with accommodations and has surprised everyone by doing quite well. 

The gift that NCLB has given students with disabilities is the expectation that they can all learn and achieve. IDEA is also very important because it gives individual parents the right to advocate on 

behalf of their child through the IEP and due process provisions. 

Fortunately, my husband and I were in the position to successfully advocate for access to the general education curriculum, highly qualified teachers and high expectations prior to NCLB. But 

what about the children whose parents weren’t in a similar position? Now NCLB mandates all these things for every child. Students with disabilities will finally be able to live up to their full potential when IDEA and the accountability provisions of NCLB are 

fully implemented and working in concert. 

This is what we all want for our children: The tools to maximize 

their potential and the opportunities that come with that achievement. 

Next year Stephen transitions to middle school. Based on the 

past experiences of others, we expected to have resistance to keeping him fully included in regular classes. Much to our surprise, attitudes really had changed considerably since NCLB. 

7

In my job as Associate Director of Public Policy for the National 

Down Syndrome Society, I have been helping parents and others 

to distinguish between the myths and facts related to NCLB. The 

two most prevalent myths are that NCLB requires a one-size-fitsall assessment and that students with disabilities cannot be expected to demonstrate proficiency on the assessment. 

In response to the ‘‘one-size-fits-all’’ myth, I want to point out 

that there are many different assessment options available under 

NCLB. There are the regular grade level assessments taken with 

or without a variety of accommodations. There are assessments on 

grade level content that can be delivered in many formats. In addition, increased flexibility has been provided by the regulations for 

students with the most significant cognitive disabilities which permit alternate assessments on one or more alternate achievement 

standards. 

The development of universally designed assessments will further expand the range of students whose achievements can be accurately measured on any given assessment. 

A big obstacle in the implementation of NCLB is that many 

states and districts are focusing more resources on their efforts to 

weaken the accountability in NCLB than they are on promoting the 

development of a range of appropriate assessments that are allowed under NCLB. If the law seems one-size-fits-all, it’s not a 

problem with NCLB; it’s the failure to design and develop appropriate assessments. The variety of possible assessments is the reason why it is also a myth to say that students with disabilities cannot be expected to demonstrate proficiency under NCLB. Many students with disabilities are on a diploma track and should be expected to be proficient at grade level. This is true for students without cognitive disabilities, but it is also true for students with mild 

cognitive disabilities. As we said already, the students with more 

significant cognitive disabilities can demonstrate proficiency on alternate standards. 

When I became co-chair of the Special Ed Continuous Improvement Team in Montgomery County in 1999, we found that most of 

the data was not disaggreated for students with disabilities. It was 

a struggle to collect any data at all on some of our quality indicators. Since NCLB and its mandate for data disaggregation, the 

work of our Committee has been greatly facilitated. 

Clearly, there will be many struggles as school systems grapple 

with the requirements of NCLB, and it is important that we ensure 

adequate funding. Curriculum, instructional materials and assessments will need to be universally designed for use by the broadest 

range of students. Access to the general ed curriculum will need to 

be improved. Data systems will need redesigning, and to allow for 

disaggregation as well as additional data collection for example on 

post-secondary outcomes. As a result of struggling with these growing pains, we will have a more effective, efficient and equitable 

educational system. I think it’s worth the struggle. 

In closing, I urge you to preserve the accountability for students 

with disabilities in NCLB and to focus your efforts on the issues 

related to improved implementation. 

Thank you for the opportunity to speak here today. 

[The prepared statement of Ms. Sabia follows:]

8

Statement of Ricki Sabia, Parent and Associate Director of Public Policy, 

National Down Syndrome Society 

My name is Ricki Sabia and I am wearing three hats today. First and foremost 

I am here as the mother of David and Stephen Sabia. I am also here as the Associate Director of Public Policy for the National Down Syndrome Society (NDSS) and 

as the co-chair of the Special Education Continuous Improvement Team in Montgomery County, Maryland. 

My son Stephen Sabia is a fifth grade student at Cloverly ES in Silver Spring 

Maryland. He also has Down syndrome. After some initial battles and with persistent advocacy, we have been able to keep Stephen fully included in his neighborhood school since kindergarten. He has always taken the regular assessments with 

accommodations and has surprised everyone by doing quite well. 

The gift that NCLB has given students with disabilities is the expectation that 

they can all learn and achieve. IDEA is also very important because it gives individual parents the right to advocate on behalf of their child through the IEP and 

due process provisions. Fortunately, we were in the position to successfully advocate 

for access to the general education curriculum, highly qualified teachers and high 

expectations before NCLB, but what about the children whose parents were not in 

a similar position. 

Now, NCLB mandates all these things for every child. Students with disabilities 

will finally be able to live up to their potential when IDEA and the accountability 

provisions of NCLB are fully implemented and working in concert. This is what we 

all want for our children, the tools to maximize their potential and the opportunities 

that come with that achievement. 

Next year Stephen transitions to middle school. Based on the past experiences of 

others, we expected to face resistance to keeping him fully included in regular education classes. Much to our surprise, attitudes really had changed considerably since 

NCLB. 

In my job as Associate Director of Public Policy for the National Down Syndrome 

Society, I have been helping parents, and others, to distinguish between the myths 

and facts related to NCLB. I have attached a copy of the NDSS press release and 

the Myths and Facts document to this testimony. The two most prevalent myths are 

that NCLB requires a ‘‘one size fits all assessment’’ and that students with disabilities can not be expected to demonstrate proficiency on the assessments. 

In response to the ‘‘one size fits all’’ myth, I want to point out that there are many 

different assessment options available under NCLB. There are the regular grade 

level assessments taken with or without a variety of accommodations, there are assessments on grade level content that can be given in alternate formats. In addition, 

increased flexibility has been provided by the regulations for students with the most 

significant cognitive disabilities, which permit alternate assessments on one or more 

alternate achievement standards. The development of universally designed assessments will further expand the range of students whose achievement can be accurately measured on any given assessment. 

A big obstacle right now in the implementation of NCLB, is that many states and 

districts are focusing more resources on efforts to weaken the accountability in 

NCLB than they are on promoting the development of a range of appropriate assessment options. If NCLB seems ‘‘one size fits all’’ it is not a problem with the law, 

it is a failure to design and develop appropriate assessments. 

The variety of possible assessments is the reason why it is also a myth to say 

that students with disabilities can not be expected to demonstrate proficiency under 

NCLB. The fact that a child has a disability does not mean that he or she can not 

demonstrate grade level proficiency with the appropriate accommodations or with 

an alternate means of administering the assessment. Many students with disabilities are on a diploma track and should be expected to be proficient at grade level. 

This is true for students without cognitive disabilities, as well as for students with 

mild cognitive disabilities. Students with significant cognitive disabilities are permitted to demonstrate proficiency using an alternate achievement standard. Without high expectations we condemn these students to the self-fulfilling prophecy of 

low achievement. 

When I became co-chair of the Continuous Improvement Team in 1999, we found 

that most of the data was not disaggregated for students with disabilities. It was 

a struggle to collect any data at all on some of our quality indicators. Since NCLB 

and its mandate for data disaggregation, the work of our committee has been greatly facilitated. Now we can acquire the data we need to monitor for continuous improvement. 

Clearly there will be many struggles as school systems grapple with the requirements of NCLB and it will be important to ensure that there is adequate funding. 

9

Curriculum, instructional materials and assessments will have to be universally designed for use by the broadest possible range of students. Access to the general education curriculum will need to be improved. Data systems will have to be redesigned 

for disaggregation of data and for the collection of additional data like post-secondary outcomes. As a result of struggling with these growing pains, we will have 

a more effective, efficient and equitable education system. I think it is worth the 

struggle. 

In closing, I urge you to preserve the accountability for students with disabilities 

in NCLB and to focus your efforts on the issues related to improved implementation. 

PARENTS URGE CONGRESS NOT TO LEAVE BEHIND STUDENTS WITH 

DISABILITIES 

ACCOUNTABILITY WILL IMPROVE EDUCATIONAL OUTCOMES FOR THESE 

STUDENTS 

February 25, 2004

New York, NY—The National Down Syndrome Society (NDSS) continues to support accountability for students with disabilities under NCLB. It is critical that the 

accountability in both NCLB and the Individuals with Disabilities Education Act 

(IDEA) be preserved in order to improve educational outcomes for students with disabilities. 

Students with disabilities have a right to the ‘‘systemic’’ accountability required 

by NCLB. IDEA focuses on the individual and NCLB focuses on group accountability. Together these laws provide the full range of accountability that students 

with disabilities need. Families can use the Individualized Education Program (IEP) 

to improve their child’s education. This is why NDSS has expressed significant concern about provisions we believe would weaken the IEP, due process and discipline 

provisions in the IDEA reauthorization bills. However IDEA does not provide a 

mechanism for accountability at the state, district and school level for students with 

disabilities as a subgroup. NCLB requires this ‘‘systemic’’ accountability. It is important to make changes child by child through the IEP process. However, there are 

many reforms that need to happen for all students with disabilities and this can 

be achieved more efficiently through the systemic accountability in NCLB. 

NCLB is not ‘‘one size fits all.’’ Opponents of NCLB suggest that it requires proficiency on a ‘‘one size fits all’’ assessment. ‘‘To the contrary, there are many different assessment options available under NCLB,’’ responds Ricki Sabia, Associate 

Director of Public Policy NDSS. ‘‘In fact, additional flexibility has been provided by 

the regulations for students with the most significant cognitive disabilities, which 

were released on December 9, 2003.’’ The development of universally designed assessments is critical. 

Students with disabilities can demonstrate proficiency under NCLB. The fact that 

a child has a disability does not mean that he or she can not demonstrate grade 

level proficiency with the appropriate accommodations or with an alternate means 

of administering the assessment. Many students with disabilities are on a diploma 

track and should be expected to be proficient at grade level. This is true for students 

without cognitive disabilities and for students whose cognitive disabilities are mild. 

Students with significant cognitive disabilities are permitted to demonstrate proficiency on assessments based on an alternate achievement standard. 

Both NCLB and IDEA must remain strong. NDSS asserts that the best way to 

improve Adequate Yearly Progress (AYP) for students with disabilities is to fully implement IDEA. In addition, the ‘‘best practices’’ identified b y NCLB’s assessments 

will improve the quality of the services delivered through the IEP. NDSS urges Congress to preserve accountability in both NCLB and IDEA. Children with disabilities 

and their families are counting on you. 

NCLB - MYTHS AND FACTS 

• Myth: NCLB punishes ‘‘failing schools.’’

Facts: Schools that do not make AYP for two consecutive years are identified 

as ‘‘needing improvement’’ and are given help, not punishment. NCLB never labels schools as ‘‘failing.’’ A school may have a great reputation because most of 

its students are achieving at a high level. However, if one subgroup at the 

school does not make AYP it is fair to say that even a great school ‘‘needs improvement.’’ These schools do not lose federal funding; in fact they are eligible 

for additional support. If a school continuously does not meet AYP there eventually is a possibility that the state will take over the operation of the school, but 

that is only one of a number of possible alternatives.

10

• Myth: Students with disabilities can’t be expected to attain proficiency. 

Facts: This myth represents the low expectations that NCLB is trying to extinguish. Most students with disabilities are on a diploma track and with appropriate accommodations and instruction should be able to attain proficiency on 

grade level assessments. In addition, students with the most significant cognitive disabilities can take alternate assessments based on alternate achievement standards and should be able to attain proficiency as measured in this 

manner. In order to help more students reach proficiency there will need to be 

greater access to the general education curriculum in the least restrictive environment. The teachers must be qualified in the subject areas they are expected 

to teach. It will also be important to develop universally designed assessments 

that are not invalidated by accommodations and are appropriate for widest possible range of students.I21

• Myth: NCLB requires proficiency on a ‘‘one size fits all assessment.’’

Facts: Under NCLB, students with disabilities can take the regular assessments, with or without accommodations, or they can take an alternate assessment based on grade level achievement standards or alternate achievement 

standards. States have the flexibility to have a number of different alternate 

assessments and a number of different alternate achievement standards. This 

is not a ‘‘one size fits all’’ situation.

• Myth: High performing schools are not making AYP because of the scores of a 

few students with disabilities. 

Facts: It takes more than the scores of a few students with disabilities to cause 

a school not to make AYP. In fact, the accommodations on the grade-level assessments and the availability of for students with the most significant cognitive disabilities level the playing field so many of these students receive proficient scores. Even if students with disabilities are doing poorly the ‘‘n’’ factor’’ 

and the safe rule will often prevent these scores from affecting AYP, at least 

at the school level. If a large subgroup of students with disabilities does not 

meet AYP it may mean the school will be identified as needing improvement, 

even if all the other students are proficient. That is the point of NO Child Left 

Behind; a school has to help all its students get an education.

• Myth: All students with cognitive disabilities should take an alternate assessment based on alternate achievement standards. 

Facts: The regulation permitting proficient and advanced scores from these alternate assessments to be used to calculate AYP refers to students with the 

most significant cognitive disabilities. This clearly doesn’t mean all students 

with cognitive disabilities. With the appropriate accommodations, many students with cognitive disabilities should be able to take a universally designed 

grade-level assessment or a grade-level alternate assessment. Since the 1% rule 

is generous enough to allow most states to place all students with cognitive disabilities in an assessment based on an alternate standard, it is left up to parents to ensure that the IEP team places their child in the appropriate assessment.

• Myth: NCLB causes excessive federal intrusion into state education policy. 

Facts: There is a tremendous amount of state flexibility built into NCLB. Except for the general requirement of a state accountability plan that measures 

AYP and the requirement for highly qualified teachers, most of NCLB applies 

only to schools receiving Title I funds. Otherwise, the provisions in state plans 

define accountability requirements. The diversity among the approved state 

plans is evidence of state flexibility. 

At http://www.ed.gov/news/pressreleases/2004/01/01142004.html there is a ten 

page document discussing the many options each state can choose under NCLB. 

Chairman BOEHNER. I’m sure someone explained all the lights to 

you, but that’s just a general guide. We’re pretty nice here, so. 

[Laughter.] 

Chairman BOEHNER. As long as you don’t get too carried away. 

If you do, I’ll let you know. 

Dr. Rhyne? 

11

STATEMENT OF JANE RHYNE, ASSISTANT SUPERINTENDENT, 

PROGRAMS FOR EXCEPTIONAL CHILDREN, CHARLOTTEMECKLENBURG PUBLIC SCHOOLS, CHARLOTTE, NORTH 

CAROLINA 

Dr. RHYNE. Good morning, Mr. Chairman, Congressman Miller, 

and Members of the Committee. I am Jane Rhyne, Assistant Superintendent for Exceptional Children in the Charlotte-Mecklenburg Schools. 

I am pleased to testify today on the inclusion of children with 

disabilities in the NCLB assessment and accountability system on 

behalf of our Superintendent Pughsley and the Charlotte-Mecklenburg Board of Education and the Council of Great City Schools. 

In our school district, I am responsible for over 13,000 students 

with disabilities, and I provide leadership for them in program 

planning and implementation, curriculum and instruction, professional development for staff, and compliance with IDEA. 

It seemed almost natural for the Charlotte-Mecklenburg Schools 

to be a supporter of No Child Left Behind. From top to bottom, our 

school district prides itself on delivering a quality education for all 

of our students and measuring our achievement results. 

Our district enrolls 114,000 students grades K through 12. Fortyone percent of them are low income; 43 percent African American; 

9 percent Hispanic; 4 percent Asian; 41 percent Caucasian; 8 percent limited English proficient; and 12 percent children with disabilities. 

Over the last decade, Charlotte-Mecklenburg, in collaboration 

with the state of North Carolina, implemented many of the cornerstone concepts embodied in NCLB, including disaggregated performance data, data-based decisionmaking, quality professional development and support, interventions in low performing schools, 

and accountability for subgroup as well as overall achievement. We 

were providing research-based instruction before the term was defined in Federal legislation. 

To validate and cross-check our state-tested academic progress, 

Charlotte-Mecklenburg volunteered, along with eight other urban 

school districts, to participate in the NAEP Trial Urban District 

Assessment, providing school district level NAEP results using a 

representative sample of students from each volunteering district. 

The Charlotte-Mecklenburg Schools students outperformed every 

other urban counterpart and also outperformed the national NAEP 

average in reading and math at the fourth and eighth grade levels. 

Though we had an early start on NCLB-type approaches, the Act 

provided us with a new set of challenges and truly, truly helped us 

refine and deepen our academic focus for all of our students. For 

students with disabilities, Charlotte-Mecklenburg has a multiyear 

strategic plan for implementing inclusive practices. I have seen 

firsthand in Charlotte-Mecklenburg and on technical assistance 

and site visits to other school districts that instructional attention 

to students with disabilities has been clearly heightened. Standards-based curriculum is being provided more often to a broader 

range of special education students. Teachers and principals are 

finding that many, many more children than they may have anticipated can make significant progress in the general curriculum 

12

when given the chance and provided with solid instructional approaches. 

As a result of NCLB, expectations have increased, and services 

are planned and delivered with greater care and inclusiveness, 

even in a progressive system like Charlotte-Mecklenburg. Principals and teachers are far more focused on the academic progress 

of their exceptional students and the gains needed to make or 

maintain adequate yearly progress. 

Charlotte-Mecklenburg’s data system supports our principals and 

teachers with up-to-date information and quarterly assessment of 

academic progress. Diagnostic information for each individual student helps the teacher select appropriate structured interventions 

based on identified student needs. 

This type of systematic attention to disadvantaged and disabled 

students is precisely what No Child Left Behind is helping to articulate. Special educators and parents welcome this instructional 

attention to students with disabilities. And I have seen the same 

reaction among teachers of English language learners and other 

disadvantaged children. 

One of the most recent revisions in our local accountability program has been to refine our bonus pay system for principals and 

all building staff to include not only academic performance of all 

children, but also NCLB Adequate Yearly Progress. With data provided to them, principals can gauge the progress of their schools, 

subgroups, classrooms and individual students to ensure focus on 

the achievement of all of the subgroups of students. 

Operationally, the recent Department of Education regulation on 

assessment of significantly cognitively disabled children will be 

helpful. However, the state of alternate assessment, including offlevel assessment, continues to evolve. Because of the focused attention on students with disabilities resulting from NCLB, our schools, 

with district staff support, have reviewed assessments of all of our 

exceptional ed students. The result through IEP teams has been to 

appropriately reassign many students to their inclusion in on-grade 

level state-required assessments. Yet approximately 1.5 percent of 

our special ed students have disabilities that prevent them from 

doing the same level of academic work as their age mates. These 

students should be assessed with some form of alternate academic 

assessment aligned with the North Carolina academic standards. 

As the district, state and nation continue to work through the challenges of NCLB, we are confident that the special needs of these 

students will also be met. 

Inclusion in accountability systems, however, is undermined in 

states proposing and being approved for minimum subgroup sizes 

for students with disabilities that are substantially larger than for 

low-income students, African-American students and others. It invites the manipulation of the NCLB accountability system and 

operationally allows some schools and some school districts to escape portions of subgroup accountability. As an urban educator and 

as a special educator, equity for our students is extremely important. 

For those of us in Charlotte-Mecklenburg and for our Great City 

School colleagues, No Child Left Behind is focused on the right 

children—those in greatest need of instructional attention and adVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
13

ditional resources. For students with disabilities, the attention and 

accountability for results may be the most significant addition to 

Federal law in the last decade, and an appropriate complement to 

Section 504, IDEA and ADA. 

Thank you. 

[The statement of Dr. Rhyne follows:]

Statement of Jane Rhyne, Ph.D., Assistant Superintendent, Programs for 

Exceptional Children, Charlotte–Mecklenburg Public Schools 

Good Morning Mr. Chairman, Congressman Miller and Members of the Committee. 

I am Jane Rhyne, Assistant Superintendent for Exceptional Children in the Charlotte–Mecklenburg Schools. I am pleased to testify today on the inclusion of children 

with disabilities in the NCLB assessment and accountability system on behalf of Superintendent Pughsley and the Charlotte–Mecklenburg Board of Education and the 

Council of the Great City Schools. In our school district, I am responsible for over 

13,000 students with disabilities and provide leadership for them in program planning and implementation, curriculum and instruction, professional development for 

school staff, and compliance with IDEA. 

It seemed almost natural for the Charlotte–Mecklenburg Schools to be a supporter 

of No Child Left Behind. From top to bottom our school district prides itself on delivering a quality education for all of our students and measuring our achievement 

results. Our district enrolls 114,000 students K–12—41% low-income, 43% African 

American, 9% Hispanic, 4 % Asian, 41% Caucasian, 8% limited English proficient, 

and 12% children with disabilities. Over the last decade, Charlotte–Mecklenburg, in 

collaboration with the State of North Carolina, implemented many of the cornerstone concepts embodied in NCLB including disaggregated performance data, databased decision making, quality professional development and support, interventions 

in low performing schools, and accountability for subgroup as well as overall 

achievement. We were providing research-based instruction before the term was defined in federal legislation. 

To validate and cross-check our state-tested academic progress, Charlotte–Mecklenburg volunteered along with eight other urban school districts to participate in 

the NAEP Trial Urban District Assessment, providing school district level NAEP results using a representative sample of students from each volunteering district. The 

Charlotte–Mecklenburg Schools students outperformed our other urban counterparts and also outperformed the national NAEP average in reading and math at the 

4th and 8th grade levels. 

Though we had an early start on NCLB-type approaches, the Act provided us with 

a new set of challenges and truly helped us refine and deepen our academic focus 

for all students. For students with disabilities, Charlotte–Mecklenburg has a multiyear strategic plan for implementing inclusive practices. I have seen first hand in 

Charlotte–Mecklenburg and on technical assistance and site visits to other school 

districts that instructional attention to students with disabilities has been clearly 

heightened. Standards-based curriculum is being provided more often to a broader 

range of special education students. Teachers and principals are finding that many 

more children, than they may have anticipated, can make significant progress in the 

general curriculum when given the chance and provided with solid instructional approaches. 

As a result of NCLB, expectations have increased, and services are planned and 

delivered with greater care and inclusiveness, even in a progressive system like 

Charlotte–Mecklenburg. Principals and teachers are far more focused on the academic progress of their exceptional students and the gains needed to make or maintain adequate yearly progress. Charlotte–Mecklenburg’s data system supports our 

principals and teachers with up-to-date information and quarterly assessments of 

academic progress. Diagnostic information for each individual student helps the 

teacher select appropriate structured interventions based on identified student 

needs. This type of systematic attention to disadvantaged and disabled students is 

precisely what No Child Left Behind is helping to articulate. Special educators and 

parents welcome this instructional attention to students with disabilities. And, I 

have seen much the same reaction among teachers of English language learners and 

other disadvantaged children. 

One of the most recent revisions in our local accountability program has been to 

refine our bonus pay system for principals and all building staff to include not only 

academic performance of all children but also NCLB Adequate Yearly Progress. 

With data provided to them, principals can gauge the progress of their schools, subVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 H:\DOCS\92309 EDUWK PsN: NNIXON
14

groups, classrooms and individual students to insure focus on the achievement of 

all subgroups of students 

Operationally, the recent Department of Education regulation on assessment of 

significantly cognitively disabled children will be helpful. However, the state of alternative assessment including off level assessment continues to evolve. Because of 

the focused attention on students with disabilities resulting from NCLB, our 

schools, with district staff support, have reviewed assessments of all exceptional 

education students. The result through IEP teams has been to appropriately reassign many students to their inclusion in on-grade level state required assessments. 

Yet, approximately 1.5% of our special education students have disabilities that prevent them from doing the same level of academic work as their age-mates. These 

students should be assessed with some form of alternative academic assessment 

aligned with our North Carolina academic standards. As the district, state, and nation continue to work through the challenges of NCLB, we are confident that the 

special needs of these students will also be met. 

Inclusion in accountability systems, however, is undermined in states proposing 

and being approved for minimum subgroup sizes for students with disabilities that 

are substantially larger than for low-income students, African–American students, 

and others. It invites the manipulation of the NCLB accountability system and operationally allows some schools and some school districts to escape portions of subgroup accountability. As an urban educator and a special educator, equity for our 

students is extremely important. 

For those of us in Charlotte–Mecklenburg and for our Great City School colleagues, No Child Left Behind is focused on the right children—those in greatest 

need of instructional attention and additional resources. For students with disabilities, this attention and accountability for results may be the most significant addition to federal law in the last decade, and an appropriate complement to Sec. 504, 

IDEA, and the ADA. 

Chairman BOEHNER. Thank you, Dr. Rhyne. 

Dr. Durkin? 

STATEMENT OF PIA DURKIN, SUPERINTENDENT, THE NARRAGANSETT PUBLIC SCHOOLS, NARRAGANSETT, RHODE ISLAND 

Dr. DURKIN. Good morning, Mr. Chairman, Congressman Miller, 

and Members of the Committee. Thank you for the privilege of offering testimony today on the critical work with students with disabilities and the impact of No Child Left Behind. 

I am Pia Durkin, Superintendent of Narragansett Public Schools, 

a small, suburban, upper income community on the coast of Rhode 

Island. I bring to the superintendency, however, over 25 years of 

special education experience in both leadership and classroom positions in New York City, in Providence, Rhode Island and in Boston, 

Massachusetts most recently. 

I’d like to frame my remarks under the context of simply saying 

stay the course with including students with disabilities in all the 

accountability standards. 

As the pressure toward accountability for progress mounts, the 

reaction of some is to question those students who are not making 

fast enough gains, most notably, students with disabilities. Why include them in accountability standards? I offer four reasons. 

First, in 1997, this country took both an equity and educational 

leap forward for the rights of students with disabilities by mandating not only was it the law that students enter our classroom 

door with their peers, but that access to the general education curriculum was critical for success of our students. Access so students 

with disabilities would have the same opportunities as their nondisabled peers. 

15

The mandate was issued that students with disabilities would be 

counted, as all other students, in state and local assessment systems. If access infers being counted, then not being counted infers 

not being cared for. From the historical perspective, I urge you that 

we must continue to ensure that all students are counted and cared 

for. 

Second, being counted and having access demands and ensures 

a share of the resources for schools to succeed. Without accountability, quality curricula, state-of-the-art classroom materials and 

technology and solid effective professional development do not become the domain of the special education teacher, who then becomes further disengaged from effective practice. The cycle continues with administrators demanding less rigor in classrooms 

serving special education students, and students falling further behind because of lackluster, low expectations. 

Third, given that nearly 80 percent of the six million students 

served through IDEA have learning issues, and those predominately are related to literacy—reading and writing—we must have 

a laser-like focus on increasing proficiency of literate learners. The 

significance of so many of our students with poor reading skills has 

been documented well in the literature. This research is not unrelated to the overidentification issues facing our school systems—

large and small, urban and rural, rich and poor. 

For years, Boston had the highest proportion of special education 

students served in this country—23 percent of its population. The 

school system I now lead, Narragansett, on the other end of the 

economic spectrum, has nearly 25 percent of students identified. 

Two school districts, one large, one small, one largely serving the 

poor, the other serving families of considerable means, both inadequate in providing effective, systemic literacy instruction, and 

both using special education as the escape valve for students with 

different needs. Both developed separate systems of accountability. 

Now Boston has reduced its high proportion to a respectable 16 

percent, due in large part to broad-based, unified literacy instructional methods. And Narragansett has begun its first steps toward 

that same end. 

Without accountability, data has shown that referrals to special 

education increase significantly the year before the test is given. 

The sorting process begins by sifting through those who have 

learned and those who have not, moving the issue away from its 

source and its place of intervention. 

Without accountability, the urgency to create conditions for students to make progress is merely reduced to a simmer level. When 

schools and the adults working in them are held accountable, the 

teaching and learning conversation becomes more of where is the 

student reading? Where was she reading 3 months ago? How much 

progress has she made? Rather than a discussion of labels, excuses, 

or reasons focused on the student as to why he or she is not making progress. 

These conversations must continue, and No Child Left Behind 

provides the context for those discussions to continue. 

As a superintendent, I grapple with my colleagues across the 

country with the pressures of meeting the NCLB mandates—targeting resources to meet the needs of those who have already been 

16

left behind; challenging the culture of accepted low performance for 

some, and collecting data not only on those who have met the bar, 

but those who are making progress toward that bar. 

Booker T. Washington once said, ‘‘It is not where you have 

reached, but rather, how far you have come.’’ In 1975, with the passage of IDEA, this country allowed millions of children with disabilities to enter the doors of public schools. The continued impact 

of No Child Left Behind to count, consider, review, and demand 

progress of our students with disabilities must not waiver, so that 

the students who enter our doors can leave them with the assurances they need to succeed as well as, if not better than, their nondisabled peers. 

Thank you for this opportunity. 

[The statement of Dr. Durkin follows:]

Statement of Pia Durkin, Superintendent, Narragansett Public Schools 

Good morning Mr. Chairman, Congressman Miller, and members of the Committee. Thank you for the privilege of offering testimony today on the critical work 

with students with disabilities and the impact of the No Child Left Behind Act on 

that work. I am Pia Durkin, Superintendent of the Narragansett Public Schools, a 

small suburban upper income community on the coast of Rhode Island. I bring to 

the Superintendency over 25 years of special education experience—in both leadership and classroom positions—in New York City, Providence, and Boston, most recently serving as an Assistant Superintendent there for five years. 

I will would like to frame my remarks under the context of ‘‘staying the course’’ 

with including students with disabilities in all accountability standards. 

Students with disabilities must remain part of—and succeed with—the standardsbased reform movement. Standards have brought schools clear and focused high expectations–the ‘‘what’’ our students need to learn, the ‘‘how’’ of challenging and rigorous curriculum, and the ‘‘where’’ of ensuring that all students make sustained 

progress toward reaching those standards. 

As the pressure toward accountability for progress mounts, the reaction of some 

is to question those students who are not making fast enough gains—students with 

disabilities being one major group. Why include them in accountability standards? 

I offer four reasons. 

First, in 1997, this country took both an equity and educational leap forward for 

the rights of students with disabilities by mandating that not only was it the law 

that students enter the classroom door with their peers but that access to the general education curriculum was critical for success of these students—access so that 

students with disabilities would have the same opportunities as their non-disabled 

peers. The mandate was issued that students with disabilities would be ‘‘counted,’’ 

as all other students, in state and local accountability systems. If access infers 

‘‘being counted,’’ then ‘‘not being counted’’ infers not being cared for. From the historical perspective, we must continue to ensure that all students are counted and 

cared for. 

Second, being ‘‘counted’’ and ‘‘having access’’ demands and ensures a share of the 

resources for schools to succeed. Without accountability, quality curricula, state of 

the art classroom materials and technology, and solid effective professional development do not become the domain of the special education teacher who then becomes 

further disengaged from effective practice. The cycle continues with administrators 

demanding less rigor in classrooms serving special education students and students 

falling further behind because of lackluster low expectations. 

Third, given that nearly 80% of the six million students served through IDEA 

have learning issues—and those predominantly are related to literacy—reading and 

writing—we must have a laser-like focus on increasing proficiency of literate learners. The significance of so many of our students with poor reading skills has been 

documented well in the literature. This research is not unrelated to the overidentification issues facing our school systems—large and small, urban and rural, rich and 

poor. For years, Boston had the highest proportion of special education students 

served in the country—23% of its population. The school system I now lead, Narragansett, on the other end of the economic spectrum has nearly 25% so identified. 

Two school districts—one large, one small, one largely serving the poor, the other 

serving families of considerable means—both inadequate in providing effective systemic literacy instruction and both using special education as the ‘‘escape valve’’ for 

17

students with different needs. Both developed separate systems of serving students 

because of different accountability standards. Now Boston has reduced it high proportion to a respectable 16% due, in large part, to broad-based unified literacy efforts. And Narragansett has begun the first steps toward that same end. 

Without accountability, data has shown that referrals to special education increase significantly the year before the test is given—the sorting process begins by 

sifting through those who have learned and those who have not—moving the issue 

away from its source and its place of intervention. 

Without accountability, the urgency to create conditions for students to make 

progress is reduced to merely a ‘‘simmer level.’’ When schools and the adults working in them are held accountable, the teaching and learning conversation becomes 

‘‘Where is she reading at? Where was she reading three months ago? How much 

progress has she made?’’ rather than a discussion of labels/reasons/excuses focused 

on the student as to why she is not making progress. These conversations must continue and No Child Left Behind provides the context for these discussions. 

As a Superintendent, I grapple, as my colleagues across the country, with the 

pressures of meeting the NCLB mandates—targeting resources to meet the needs 

of those who have already been left behind—challenging the culture of ‘‘accepted’’ 

low performance for some—and collecting data on, not only on those who have met 

the bar, but those who are making progress toward the bar. 

Booker T. Washington once said ‘‘It is not where you have reached, but rather 

how far you have come.’’ In 1975 with the passage of IDEA, this country allowed 

millions of children with disabilities to enter the doors of public schools. The continued impact of NCLB to count, consider, review, and demand progress of our students with disabilities must not waver so that the students who enter our doors can 

leave them with the assurances they need to succeed as well, if not better, than 

their non-disabled peers. 

Thank you for this opportunity. 

Chairman BOEHNER. Thank you, Dr. Durkin. 

Dr. Thurlow? 

STATEMENT OF MARTHA L. THURLOW, DIRECTOR, NATIONAL 

CENTER ON EDUCATIONAL OUTCOMES, UNIVERSITY OF 

MINNESOTA 

Dr. THURLOW. Mr. Chairman, Mr. Miller, and other Members of 

the Committee, thank you for inviting me to speak today, as well. 

At the National Center on Educational Outcomes, a center that 

provides assistance to states on the inclusion of students with disabilities in state and district assessments, my staff and I are closely involved with states as they implement their No Child Left Behind plans. 

Because of our many years in working on the inclusion of students with disabilities in assessments, I think that we have been 

able to see the forest as well as the trees, a perspective that not 

everyone has these days. It is because of this view and the evidence 

we see about the effects of including students with disabilities that 

I so strongly support their inclusion in the assessment and accountability provisions of the No Child Left Behind Act. 

I want to make four points today that confirm the importance of 

including students with disabilities in assessment and accountability. They show I think that it is not unreasonable to hold 

schools accountable for these students; in fact, that it is important 

to do so. 

First, we are already beginning to see the benefits of the inclusion of students with disabilities. Stopping now would be terrible. 

More students with disabilities are participating in assessments 

than ever before, and the increased participation is translating into 

18

improved performance in states where they have implemented reforms. 

I have given the Committee graphs showing data from New York 

and Massachusetts. The New York data show that more students 

with disabilities took and passed the rigorous Regent’s Exam in recent years than have ever taken them before, indicating access to 

the curriculum as well as to the standards—or standards and to 

the assessments. 

The Massachusetts data show the steady increase in passing 

rates of students with disabilities and the fact that they were not 

doing very well when the exams were first administered. That’s 

where we are in a lot of the states at the beginning. Over time, 

with training for the educators, support for the students, the stuff 

that NCLB is about, the scores improved. 

Kansas has posted data that show increasing percentages of students with disabilities who are proficient. Twenty-six percent in 

2000; 50 percent in 2003 in reading. As will other states when they 

emphasize and implement reforms. These data show what can be. 

My second point is that being in special education, having a disability does not mean that students cannot meet standards. It 

should be obvious I think from the above examples and from what 

we’ve heard today. But I still so often hear educators and others 

say something like how can you expect special education students 

to perform well on these tests? If they could do that, they wouldn’t 

be in special education. Statements like that are outrageous to me. 

Special education is supposed to provide the services and supports 

that enable students to be successful so that students can achieve 

proficiency. Special education eligibility should not be an excuse to 

expect little from a child or to provide little for the child. Low expectations is a pervasive problem. No Child Left Behind is shining 

a very bright light on low expectations, and that is a very important outcome. 

The third point I want to make today is about where the adjustments are in fact needed. Well, I think there are some ways in 

which assessments can be improved, for example, by making them 

more accessible through use of universal design principles. The bigger work that needs to be done is in providing students with disabilities greater access to the curriculum, making sure that they 

have appropriate accommodations and supports that they need. 

States that have done this have seen improved results. There are 

many states and districts on the road to these improved results. 

Ohio, for example, has a very strong plan for reform and improvement that is bound to produce subgroup gains. I’ve looked at districts within California. They’re exploring their data in ways that 

are going to help them identify successful programs, programs and 

practices that meet the needs of their students with disabilities. 

These approaches are popping up all over the country. The adjustments that are needed are emerging. 

My last point is to emphasize the importance of staying the 

course. Complaints and controversy are a natural reaction to the 

increased pressure of ratcheting up of accountability. This doesn’t 

mean that it is bad or that there should be a change. It does mean 

that people are paying attention. It means that students with disVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
19

abilities are not just the concern of special educators anymore. 

They are the concern of all educators, and this is good. 

Where we are now is a sea change from where we were 10 years 

ago. Some of this started before NCLB. The Individuals with Disabilities Education Act of 1997 required that students with disabilities participate in state and district assessments and that their results be reported publicly in the same way and with the same frequency as those of other students. While this happened in some 

states, not until No Child Left Behind did all states really pay attention to the requirements. 

NCLB has given us data on students with disabilities that we 

only had sporadically before. These data can help educators know 

where to devote resources. NCLB has given the impetus for special 

educators and general educators to work together in a way that 

never seemed to rise to the level of importance to make it happen 

before. 

Making students with disabilities one of the subgroups of No 

Child Left Behind truly has been a very important and positive 

event in the education history of students with disabilities. 

Thank you. 

[The statement of Dr. Thurlow follows:]

Statement of Martha L. Thurlow, Ph.D., Director, National Center on 

Educational Outcomes 

Thank you for inviting me to speak today. I am the Director of the National Center on Educational Outcomes, a technical assistance center that provides assistance 

to states on the inclusion of students with disabilities in state and district assessments, and on important related topics such as standards-based reform, accommodations, alternate assessments, graduation requirements, universally designed assessments and accessible testing. We support our technical assistance with policy research on states’’ current policies and practices in these and other areas. We also 

conduct other research to move the field forward in its thinking, in areas such as 

how to develop universally-designed assessments that are accessible for students 

with disabilities without changing the content or level of challenge of the test, and 

how to most appropriately assess students with disabilities who are English language learners. 

The focus of our organization results in our close involvement with states as they 

implement their No Child Left Behind plans. Yet, because of our many years of 

working on these issues, I think that we can see the forest as well as the trees. It 

is because of this view, and the evidence we see about the effects of including students with disabilities that I so strongly support the inclusion of students with disabilities in the assessment and accountability provisions of the No Child Left Behind Act. 

I want to make four points today. These points confirm the importance of including students with disabilities in assessment and accountability. They show that it 

is not unreasonable to hold schools accountable for these students. 

First, we are already beginning to see the benefits of the inclusion of students 

with disabilities in assessments and accountability systems. As a result of having 

actual assessment data for these students, we know that more students with disabilities are participating in assessments now than were tested a mere three to five 

years ago. We see these data in every state. Participation rates have gone up dramatically. Think of New York’s Regents exams, some of the most rigorous exams 

in the country. The state released data showing that more students with disabilities 

took and passed those tests in recent years than had ever taken them before—and 

to take them, students had to first be enrolled in Regents courses. This means that 

they had to have access to a curriculum that they had not had access to before, and 

they are achieving success. 

Massachusetts also has data showing the passing rates for students with disabilities on its high stakes graduation exam. Many students did not pass when the 

exams were first administered. People started to pay attention when that happened, 

including the students. Attention was devoted to what was happening in the classrooms for all students, including students with disabilities. Training was provided 

20

to make sure that all educators including special educators knew WHAT all children 

were to know and be able to do—the content standards—and how to teach them. 

Massachusetts’s data show where the passing rates for students with disabilities 

have steadily climbed from one year to the next. Graphs showing the data from both 

of these states are attached to the end of this testimony (Figure 1 shows New York’s 

Regent’s Exam in across four years; Figure 2 shows Massachusetts’s graduation test 

results for the class of 2003). 

Kansas, as a result of its emphasis on reform, has reported that the overall percentage of students with disabilities who are proficient in reading has increased 

from 26% in 2000 to 50% in 2003. The percentage who are proficient in math has 

increased from 36% in 2000 to 58% in 2003. 

These data show what can be. Staff at NCEO talk to state directors nearly every 

day, and they tell us that they are seeing positive changes. Of course, they also tell 

us about the challenges. The challenges are not necessarily due to the assessment 

or the accountability system, however. The assessment system and its results serve 

as a warning flag. They tell us when we need to do something about our instruction, 

our resources and supports. Making changes to the assessment or accountability 

system is not the answer. 

My second point is that being in special education—having a disability—does not 

mean that students cannot meet standards. I know that it is terrible to speak in 

double negatives, but I so often hear educators say something like: ‘‘How can you 

expect special education students to perform well on these tests? If they could do 

that, they wouldn’t be in special education.’’ Those statements are outrageous to me. 

Special education eligibility should result in an identified student receiving the services and supports needed so that the student can be successful—so that the student 

can achieve proficiency. Special education eligibility should NOT be an excuse to expect little from a child, and to provide little for the child. The assessment and accountability provisions of NCLB have helped us recognize this for what it is, a problem of low expectations. 

Low expectations is a pervasive problem—one that our colleague Kevin McGrew, 

who is one of the authors of the Woodcock–Johnson III tests of cognitive ability and 

achievement, has examined by looking at the academic achievement of students of 

varying IQs, often used for eligibility for special education services. He has found: 

‘‘It is not possible to predict which children will be in the upper half of the achievement distribution based on any given level of general intelligence. For most children 

with cognitive disabilities (those with below average IQ scores), it is NOT possible 

to predict individual levels of expected achievement with the degree of accuracy that 

would be required to deny a child the right to high standards/expectations.’’

One of the bedrock principles of No Child Left Behind is that all students can 

learn to high standards. I believe that No Child Left Behind is shining a very bright 

light on low expectations, and that is an important outcome. 

The third point that I want to make today is about where adjustments are in fact 

needed. First we should look at accommodations, supports, and instruction. These 

are where the issues that are causing low student achievement are most likely to 

lie, not in the assessment. While there are some ways in which assessments can be 

improved, for example by making the assessments more accessible through the use 

of universal design principles, the real work that needs to be done is in providing 

students with disabilities greater access to the curriculum, making sure that they 

have the appropriate accommodations and other supports they need. States that 

have done this have seen the improved results that are the goal of No Child Left 

Behind, as shown in the data from New York, Massachusetts, and Kansas. 

We know how to educate all children, including those with disabilities, if we have 

the will to do so. The discussion should not be about whether students with disabilities can learn to proficiency—and thus, it should not be about whether they should 

be included in assessment and accountability measures—it must be about whether 

we have the will and commitment to make it happen. 

Finally, my last point is to emphasize the importance of staying the course. Complaints and controversy are a natural reaction to the increased pressure of the 

racheting-up of accountability. This does not mean that it is bad, or that there 

should be a change. It does mean that people are paying attention! It means that 

students with disabilities are not just the concern of special educators anymore. 

They are the concern of all educators, and this is good. Everyone needs to take responsibility for the learning of students with disabilities. Recent research has shown 

that schools where there is shared responsibility and collaboration among staff have 

students scoring higher on their district assessments. 

Where we are now is a sea change from where we were 10 years ago. Some of 

this started before No Child Left Behind. The Individuals with Disabilities Education Act of 1997 required that students with disabilities participate in state and 

21

district assessments and that their results be reported publicly in the same way and 

with the same frequency as those of other students. While this happened in some 

states, not until No Child Left Behind did all states really pay attention to the requirements. The assessment and accountability requirements of No Child Left Behind have given us data on students with disabilities that we only had sporadically 

before. These data can help educators know where to devote resources. No Child 

Left Behind has given the impetus for special educators and general educators to 

work together in a way that in many places never seemed to rise to the level of 

importance to make it happen before. Making students with disabilities one of the 

subgroups of No Child Left Behind truly has been a very important and positive 

event in the education history of children with disabilities.


92309.001
22

Chairman BOEHNER. We thank all of our witnesses for your testimony and your insight into the effect that No Child Left Behind 

is having on students with special needs. And I guess I particularly 

appreciate your strong support of the fact that No Child Left Behind really means no child left behind. I don’t know why some in 

America don’t quite understand this, but they will. 

Dr. Thurlow, in 1997, when we last reauthorized IDEA, states 

were required not only to assess children with disabilities and to 

publish those test scores, but they were also required under the ’97 

act to develop alternative assessments for students with severe cognitive disabilities. No Child Left Behind comes along 4 years later, 

and it’s been 2 years since then, so now we’re talking about 6 

years. How many states still don’t have alternative assessments for 

those very special needs children? 

Dr. THURLOW. All states have alternate assessments now for 

their special needs children—those with the most significant cognitive disabilities. The development of those assessments has been 

quite a challenge for states, and it’s been an evolving process for 

states as they’ve come to understand who that population is. These 

are children in some states that they were outside of their vision, 

literally outside of their vision. And so it has been a dramatic 

change, a sea change, for people to realize we do mean all students. 

All students means all students. 

So figuring out how do we really assess these students with the 

most significant cognitive disabilities has been a challenge. All 

states now do have an alternate assessment for those students, but 

they are still evolving. Because when they started in 1997, and 

some were slower to start than others, when they started, perhaps 

they started falsely and they went back and had to revise. So even 

now, states are evolving. And as they now have to go from an assessment that they perhaps did in grades 4, 8 and 12, and now are 

going to need to do that in every grade, they are also rethinking, 

can we continue to use the procedure that we used in only a few 

grades to do it? 

Chairman BOEHNER. Dr. Durkin, you brought up the troublesome 

subject of overidentification. And while there are some that are 

concerned that the 1 percent rule issued by the department doesn’t 

go far enough, if in fact we can begin to address the overidentification issue, that would in effect provide even more flexibility to local 

districts. 

What’s happening in the real world with regard to reducing the 

incidence of overidentification, especially of poor minority children? 

Dr. DURKIN. I think your question, Mr. Chairman, is an excellent 

one, because it points to the type of preventive work we need to do 

as educators before a referral is made to special education. Referrals to special education should be one of the last steps when we’re 

talking about students with learning disabilities and learning 

issues. 

In some instances, we need to look to what has been the level 

of instruction. Many states are now working on a response to intervention model—what has been done, and how has that student responded to the instructional supports that have been targeted for 

that child’s needs, particularly in the pre-K through 3 arena? We’re 

seeing in our own school district the more effort we are putting in 

23

those areas, the fewer students that are moving out of third grade 

where the shift comes from learning to read to reading to learn, 

that we can be able to see fewer students needing that targeted 

needs between fourth and then eighth grade. 

Right now I believe school systems are grappling with a great 

deal of work at the ninth grade level. Students who are coming into 

high school who are poor learners and through that. I think our 

identification systems must merit questions not only regarding individual testing but how has the environment in that classroom 

changed. What has been done with that student, so that we can ensure that when we do make a referral and then a definition of eligibility comes into play, what has been done. And to my satisfaction, 

we attempts have not answered that question of what has been 

done with that student prior to that. 

Mr. MILLER. If I just might piggyback on that question, and you 

may have just answered it, but let me give it to you how I’m hearing it in some anecdotal fashion. And that is that some parents and 

even some educators are suggesting to me because of the 

disaggregation of the data and the need essentially for the school 

district progressing to take a second look at some of these children, 

and they’re putting them through some additional assessments. 

They are finding out that in many instances this is a reading problem that can be addressed as opposed to then deciding to push the 

child along with some other label that would suggest that they be 

in special education. Is that anecdotal—is that happening or not 

happening? 

Dr. DURKIN. I think the issue of disaggregated data propels us 

to look at students individually as well as a subgroup. Your point 

about noting progress of students rather than wait till the year end 

standardized high stakes testing that so many of our states have 

developed, we need to develop and ensure that we’re seeing 

progress along the way. 

It is very difficult in May to see a student who has failed, and 

my first question to my staff is why? What didn’t we catch back 

in November, back in January and back in March? And those are 

the issues that we need to hold accountable for both general and 

special education and put systems in place where we’re monitoring 

the progress as we move toward the high stakes involvement. 

So your point is a good one in terms of not only do we have to 

make sure that responses and interventions are made, but that we 

need to have a targeted, timely response in school systems to ensure as students are moving that we are tracking progress, and 

that we are ensuring they are moving. And that progress may differentiate depending on the child, the disability and the areas. But 

progress has to be made. 

Chairman BOEHNER. Dr. Rhyne, let’s stay on the same subject. 

You’ve got a model district when it comes to dealing with students 

with special needs. How does your district deal with identifying 

and appropriately identifying children with special needs that qualify for IDEA, and where do you draw the line, and how do you deal 

with the overidentification question? 

Dr. RHYNE. It’s an excellent question, and I think an area that 

Charlotte-Mecklenburg schools has done exceptionally well in. We 

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trict, and within that model there is a universal access piece of it 

where most of the children are going to do well on the universal 

access piece. For those children who are falling out of the universal 

access, we are looking at targeted and intensive interventions. And 

we have set targeted and intensive interventions in place. We’re 

seeing great improvement in our reading scores as suggested in our 

NAEP trial urban school district scores. 

Another thing that we’re doing that Dr. Durkin referred to, we 

have in our district a very systematic way of keeping track of 

where students, classrooms and schools are. As a principal in the 

Charlotte-Mecklenburg schools, I am provided with quarterly data. 

We have developed quarterly tests that align with our end-of-grade 

and end-of-course tests. And the principals get that data, and we 

have instructed every principal on how to sit down, use that data, 

tear it apart by classroom and down to the individual students. 

We’re now dealing with individual students in the CharlotteMecklenburg Schools. And we’re looking at what does that child 

need. We’re looking at specific items that they missed on the test. 

Do they need to be regrouped? Can we pull this group to the side 

and do a different intervention with them? 

So we have quarterly assessments and then we have what are 

called mini-assessments, and these assessments are like the quarterly except they occur every approximately six to 7 days. And so 

with that type of very intense data and using data to make instructional decisions, we feel that we are more on target with where individual children are. And by doing that as a district, we are affecting special education. 

Chairman BOEHNER. Well, I want to congratulate you and others 

who take the assessment data, actually use it as a management 

tool to look at your own systems, your own curriculum, your own 

teachers, and relate that to the needs of children. There’s a nearby 

state that I’ve met with yesterday that the assessment data goes 

to the state. It never comes back to the school. It just flabbergasts 

me. They don’t—the principal, the teachers, all they know is that 

their kids passed or failed or they need improvement or they’re 

somewhere on the list, but they don’t know what the test scores 

are. 

So, congratulations. Mr. Miller? 

Mr. MILLER. Thank you. Once again, I’m going to piggyback on 

Chairman Boehner’s question here. First of all, I want to say that 

I was at a meeting on Monday with some foundation people in 

California and all they kept talking about was Charlotte-Mecklenburg. So apparently there’s much to envy here. 

But first of all—second of all, one of the little secrets, maybe it’s 

of legislative intent, but we think it’s also in the bill rather clearly 

that when we were talking about assessments, very often we were 

talking about diagnostic tools. The Governors got wrapped up in 

high stakes testing long before we ever wrote this law. 

But what we were hoping for was that in real time, every six or 

7 days or quarterly or monthly, we could pass on real information 

to teachers, to principals, to students and to their families about 

what might be done and what adjustments could be made so that 

these children could continue to progress. That seems to have been 

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panies, who are also now becoming assessment companies, they tell 

me that this can be embedded and you can do this for a vast number of students which would be helpful because then we could 

again focus down on others. I don’t know if that’s the case or not. 

But it would seem to me especially with this population of special 

ed children that diagnostic tools are really what you would be looking for here, both to convey information to the teacher and to the—

about the student. But also we want to see whether or not the 

teachers are teaching in a manner that’s appropriate to that student. Is that correct? 

Dr. RHYNE. That’s absolutely correct. That’s why we established 

these mini-assessments and quarterly assessments. We did not 

want to wait till the end of the year and be surprised. We wanted 

to know as we progressed through the year what children were proficient in what was being taught, the specific objectives, and who 

needed help. And we used that data. We used that data on a daily 

basis. We are down to looking at individual students and looking 

at what objectives children know, what they don’t know, and then 

providing targeted intervention. 

Another way we use it, which I think is quite interesting, in 

Charlotte-Mecklenburg, as you know, in a large urban district, the 

issue of hiring certified special education teachers is often difficult. 

And so we hire sometimes lateral entry teachers who are not certified. They are college graduates. They may have an undergraduate degree, for example, in psychology. And this data is used 

also to target those teachers in how well they are instructing their 

students. 

And when we find that they are really struggling because they 

don’t have the educational preparation that a certified teacher 

might have, then we send out to the school instructional support 

in that we have special education staff out of my office who go and 

work with that teacher. When I say work, I mean get your hands 

dirty work. They are in the classroom sometimes 13 solid days coteaching, teaching, modeling, showing them the standard course of 

study, rearranging their classroom, helping them set up behavior 

management. And that has proved to be very, very effective for our 

lateral entry teachers. 

We want to increase these teachers’ skills, and we don’t want 

them to leave, because then we’re in a vicious cycle. If they leave 

at the end of the year, we start all over again. So we’re trying to 

grow our staff, and by growing our staff, we can ensure better instruction for our students with disabilities. 

Mr. MILLER. Thank you very much. Let me just ask you, in your 

general curriculum, do you use the same reading program across 

the entire district? 

Dr. RHYNE. Yes, we do. Our universal curriculum is a specific 

reading series that is used across the district in both regular education and special education. 

Mr. MILLER. So as the child moves from one school to another— 

Dr. RHYNE. Same, exact— 

Mr. MILLER. You would have, again, you would have real time 

information about that child when they go into the new school? 

Dr. RHYNE. Absolutely. And our district has written pacing 

guides so that on any given day, we know what is being instructed 

26

in all of our schools, all 140 schools across the district. For those 

children who then are having difficulty with that textbook, with 

that series, we have established another set of materials that is 

used for targeted intervention with any student. It just doesn’t 

have to be a special education student. And the targeted intervention is a research-based intervention. And we group students, find 

time in the schedule to provide that targeted intervention and then 

move students back into the universal text as they make improvement. 

Mr. MILLER. Thank you. Thank you, Mr. Chairman. 

Chairman BOEHNER. The chair recognizes the gentleman from 

Nebraska, Mr. Osborne, for 5 minutes. 

Mr. OSBORNE. Thank you, Mr. Chairman. Thank you for being 

here today. We appreciate it. I’m somewhat interested in maybe 

the interface of early learning programs with special ed, and so I’m 

going to ask kind of a broad question of all of you. 

Let’s say we took a random student population and we subjected 

them to a fairly rigorous early learning program such as Head 

Start, and we took another random group and didn’t assign them 

to Head Start, would you see—do you think that you’d see a reduction in special ed students who, if they were exposed to early learning experiences? And how does that relate to overidentification? 

Dr. RHYNE. I’d like to respond to that. In the Charlotte-Mecklenburg schools, we have an early childhood education program, and 

it’s called Bright Beginnings. It is for 4-year-old children who are 

disadvantaged educationally. 

We have studied—the program has been in effect probably for 

about 5 years, 6 years, and we have studied the groups of children 

who have gone through this Bright Beginnings program, which is 

very literacy based, and there’s a high level of parent involvement 

that’s required as part of being in the program. We’ve studied these 

children at the third grade level, and these children are right on 

target and exceeding the success and progress of control group type 

children. So we feel that Bright Beginnings, that Bright Beginnings 

program with the attention on early literacy is absolutely critical. 

Dr. THURLOW. I’ll jump in on top of that one, because I think 

there is some research basis for preschool and early programs. But 

I think we need that focus on the early literacy, and, you know, we 

really need to know what is going on in those programs. So I 

wouldn’t just say Head Start. I would say what is going on in those 

programs? What’s the target of the instruction and the nature of 

what’s going inside them? Before I’d say— 

Mr. OSBORNE. So you’re not just saying a blanket approach. 

Dr. THURLOW. Yes. Right. 

Mr. OSBORNE. But as long as it’s targeted and it’s headed toward 

literacy, it’s important. Yes, ma’am? 

Dr. DURKIN. Congressman, I would just like to add that my colleagues are correct in what is going on, but we have found with 

children who do come to school with significant stressors from 

urban settings and with lack of language skills, because we know 

language is tied very much with literacy, is they need more time. 

And they need more intensive supports. It doesn’t mean they cannot achieve that same standard. But we must put into place either 

additional home components. 

27

We’ve had a great deal of success with family literacy programs, 

working with families in conjunction with students on how to encourage reading and writing at home, as well as developing Saturday programs, after-school programs. These are the merits of what 

really helps our children catch up and give them a fair level field, 

level playing field, which is what No Child Left Behind is about. 

Ms. SABIA. I just want to make a comment about high expectations in this area, because many times we have children with cognitive disabilities. The ones that are identified early because they 

have Down Syndrome or something that you know from birth, 

there are not high expectations when it comes to these children, 

and a lot of time is wasted until they can show you what they can 

do because they can’t speak early on. And we went ahead and did 

our own early intervention for reading and other things, and my 

son went into kindergarten being able to read. And I think it shows 

that, if given the opportunity, and with the high expectations, that 

you don’t wait until you find out how well they can speak or other 

things they can do. They can start learning early and they will, by 

the time those kids get to all these assessments you’re talking 

about, really be amazing and be able to surprise people. But those 

high expectations have to start from the very beginning or you lose 

all those years. 

Thank you. 

Mr. OSBORNE. Thank you. I gather you’re in favor of early learning programs, from your response. One last question. Dr. Rhyne, in 

your testimony, you mention that your bonus pay system for principals and building staff include not only academic performance of 

all children but also No Child Left Behind adequate yearly 

progress. And one of the complaints we often hear is, well, you 

know, you’re going to have teachers teach to the test, and when 

you throw in additional economic incentives, I imagine that there 

may be even more grounds for that complaint. And I just wondered 

if you would care to comment on how you see that working in your 

system. 

Dr. RHYNE. We just did this about 2 weeks ago. We realized—

we’ve had a local bonus for a long time, and our local bonus was 

tied to achievement of our state scores. We realized that with AYP 

coming in and No Child Left Behind that principals were paying 

more attention to the state scores than they were to this whole 

AYP issue. So we had to get their attention. 

And we said that not only did you have to make achievement on 

the state scores but also you had to make your AYP goals. And so 

for the first time this year at the end of this school year, all staff 

at a school includes all levels of staff, will receive a bonus if they 

make both. 

Mr. OSBORNE. Thank you. That sounds a little bit like merit pay 

or something like that, but I appreciate it very much and I yield 

back, Mr. Chairman. 

Mrs. BIGGERT. [presiding] Thank you. The gentleman from 

Michigan, Mr. Kildee, is recognized for 5 minutes. 

Mr. KILDEE. Thank you, Madam Chair. I’ll direct this to Dr. 

Rhyne first, but the others are welcome to join in. What are the 

advantages or disadvantages, benefits or problems with the alternative tests based upon alternative achievement standards? The 

28

Secretary has said 1 percent can be assessed using an alternative 

test. What are the advantages or disadvantages of that, the problems or benefits? And might states be tempted to seek an exception 

to the 1 percent limitation, which the Secretary has indicated could 

be given? 

Dr. RHYNE. I think there are definitely advantages to the alternative assessment. If we did not have alternative assessment, then 

when said that No Child Left Behind was dealing with all children, 

we’d be leaving out a group of children. And so ‘‘all’’ would not 

mean all. 

In the state of North Carolina, we have had a very successful alternative assessment. It’s a portfolio assessment for our students. 

We had the good fortune of receiving a Federal grant and working 

with colleagues from the University of North Carolina at Charlotte 

on alternative assessment for our students, and we in Charlotte 

have done very well with our alternate assessment, and we feel 

like with the alternate assessment, we have really been able to 

show teachers how to use data. Again, it gets back to data and how 

to use data to make instructional decisions on a daily basis. 

So I’m very much in favor of the alternate assessments, because 

it allows us to include all children. 

Mr. KILDEE. Do you see much of a problem of, in the alternative 

assessment, the temptation to bring the assessment down rather 

than to bring the child up? 

Dr. RHYNE. What we’ve done in Charlotte, we have another—our 

alternate assessment is one level, and then kind of the next level 

up of assessment is called an alternate academic inventory, and it’s 

an assessment for students who are being instructed off grade 

level. So, for example, a child who may be in the fifth grade but 

is instructed on the second grade level. 

For that group of children, we have special education children on 

the alternate assessment, and we felt like perhaps across the district there might be children on that assessment who really could 

be on a standard assessment with modifications. So we went to 

every school. We went to all 140 schools and met with the special 

education staff in those 140 schools talking about and encouraging 

staff and IEP teams to really take a look and see if they had children who instead of going down to the portfolio, which would not 

be an appropriate move, who really could be on the end-of-grade 

standard assessment with modification. 

And I’m happy to report, we just got the data. We, through the 

IEP team process changed 27 percent of those assessments and put 

those children on standard assessment with accommodations. 

Mr. KILDEE. Dr. Thurlow? 

Dr. THURLOW. I would like to make two points about the alternate assessment. One, I’d like to just comment briefly about what 

I see as the benefits that we’ve seen across the country in the alternate assessments, and then I’d like to second address your point 

about the concern that people might or states might sort of make 

things easier for these kids, kind of that concern there. 

So first, the benefits. And this has been—I think the alternate 

assessment has been one of the most dramatic sort of enlightened 

things that has been done in No Child Left Behind for recognizing 

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ices who have very significant cognitive disabilities who most of 

population in the United States doesn’t even realize are in our 

schools today, but who are. These are students with very significant cognitive disabilities. 

These are students who are taught by educators who for many 

years have viewed themselves as babysitters. And we have gone 

out now and have talked to many of these teachers, and they tell 

us they no longer see themselves as babysitters. They see themselves as professionals. They now know what their state standards 

are, because they are required to know their state standards because they have to work on an alternate assessment that is aligned 

to the state standards, and how can do that if they don’t know the 

state standards? 

They have had to talk to the general education teachers in their 

districts to figure out what the standards are. So they see themselves as professionals. They know what their state standards are, 

and they are working on their state standards. They are working 

on academic aligned stuff for their kids with the most significant 

cognitive disabilities. This is a dramatic and, you know, I get emotional trying to talk about how important this piece is. 

Mr. KILDEE. And the second part of my question? 

Dr. THURLOW. OK. And let me just say, because this 1 percent 

means that these kids who are significantly cognitively disabled 

can be proficient. That’s what’s important about this 1 percent. 

OK. The safeguards are really important, and that’s what the 

other important thing about this 1 percent regulation is, because 

it has built in—it has built in a requirement that states must set 

rigorous standards. It doesn’t say you can just go and say whatever 

you want to is proficient. 

States have to build a—have to go through a rigorous standardsetting process. They have to come up, like they do with their regular assessment, they have to come up with a process that they go 

through, they have to put together I would say a technical manual 

where they’ve defined what they’ve done. Show me why this is proficient, why this score, why this is proficient. Show me what process you’ve gone to. 

And, you know, so they’ve got to do for their alternate assessment what they’ve done for their regular assessment, and we’ve got 

to begin to look at those. And I would think your peer review process, or the Department of Education’s peer review process will be 

looking very carefully at those. And I would expect, given what I’ve 

seen happening, that they will be doing that. So. 

Mr. KILDEE. Thank you, both of you. I appreciate your response. 

Mrs. BIGGERT. The gentleman yields back. I will now yield myself 

5 minutes. 

Ms. Sabia, you—they’ve been talking about the appropriate accommodations for students with disabilities to participate in the assessment and making sure that the test is still valid. If you don’t 

mind my asking, what types of accommodation does a child like 

your son need in order to be assessed on what he knows and has 

learned? 

Ms. SABIA. Not as much as you would think, actually. For reading and language, he can read, as I said, so he does not need the 

verbatim reading. They do read the directions with him to make 

30

sure that he’s really paying attention to the directions. Interestingly enough, the biggest accommodation he needs is somebody to 

color in the circles to make sure that they’re precise enough that 

it can be read by the computer. That is really the biggest accommodation. 

He can dictate and have them write the answers when there are 

written answers, although he has refused that accommodation in 

the past by self-efficacy. Math, he uses a calculator, and that is his 

math accommodation. 

And I did want to make one point about alternate assessments 

as well, because that’s really, for a lot of the kids, they may end 

up in the alternate assessment with the 1 percent. I’m just hoping—we are all just hoping that states will take—be really reading 

those regulations closely and follow what they say, because the 

spirit in there is very strong about high standards and high expectations, and that that 1 percent is only—it’s supposed to be a cap. 

So many students who have cognitive disabilities can, like you just 

asked for my son, be able to take the regular assessments either 

with accommodations or with the alternate format that’s permissible on grade level. And for those who can’t, that there still be 

high expectations and there are even multiple alternate achievement standards. So to make sure that there are enough of those 

going on so that you really are reaching the kids where they are 

at and challenging them and not having the problem you were 

speaking about. 

But obviously, you know, kids vary, and there are other accommodations that need to be given. And the big thing—we had a 

problem where we were seeing that the test was not being validated because of accommodations. And the push with No Child Left 

Behind really was to find ways to work around that. And now tests 

that before were invalidated because they were not separating 

them out enough so that the accommodations only invalidated 

some and not all, the push of No Child Left Behind has found ways 

to fix that problem. 

And we’re hoping that states will really rise up and not do the 

minimum of what needs to be done. For example, in my state, 

Maryland, we have an N of 5 that’s second to lowest in the country, 

of the number of kids with which you have to keep that group as 

a subgroup. So almost every school counts their kids with disabilities because the N is 5 and not 20 or 100. 

And so that’s what our hope is, that states will then take the 

lead that you all have started and have high expectations and not 

just necessarily put those kids under the 1 percent, see what they 

could do with those accommodations that you asked about. 

Mrs. BIGGERT. Thank you. I know that you mentioned that 

NCLB is one of the myths is that it requires one-size-fits-all assessments, and I don’t think that so many people realize that it really 

is so much—the flexibility to give the states to do so much, and I 

don’t think that we’ve done a good job of getting that word out on 

how the states and the local school participate so much. 

In fact, I think from my state, there’s been concerns that in doing 

the AYP that so many of—so much of the media came out and said 

schools fail, and using the term ‘‘failure’’ because they haven’t met 

the AYP goals for that year. And part of it was just not underVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
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standing I think how the system worked, and it’s been unfortunate 

I think, but maybe all of you could help, if you have some ideas 

how we as Members of Congress can help get the word out to people about the real benefits. 

Yes, Dr. Durkin? 

Dr. DURKIN. Yes. I just want to add to that. I think one of the 

key things that we need to work together on is looking toward 

more of an academic progress standard and really noting of how 

much progress students make in contrast to the current proficient 

standard. And I think over time, that is going to mean a great deal, 

particularly for school systems that are finding themselves a great 

deal of difficulty reaching that AYP standard. 

There really does need to be merit and challenge to motivate 

principals, staff, and teachers as well as students and families that 

we’re moving in the right direction. We have to stay the course. 

And it’s those kinds of looking at value-added assessments really 

need to merit some view of how much progress we’ve made as opposed to in addition to just reaching the proficiency standard. 

Mrs. BIGGERT. Thank you. With that, I’ll yield back and recognize the gentleman from New Jersey, Mr. Andrews. 

Mr. ANDREWS. Thank you, Madam Chairman—Chairwoman. Ms. 

Sabia, I just wanted to say to you the reason I voted for No Child 

Left Behind and would again is so that Stephen and children like 

him have a highly qualified teacher in front of them all the time, 

have no artificial limits placed on our expectations of what they 

can achieve, and so that they are regularly measured so we can 

test ourselves to see whether we’re meeting our commitment to 

Stephen and his classmates. 

I think there are a lot of people out there who really don’t want 

accountability and are using legitimate objections to problems in 

this law as trojan horses to try to disrupt the law and overturn it. 

Having said that, I think we do need to focus on some of the legitimate issues that I’ve identified in talking to educators, listening to 

educators in my area, and I wanted to ask Dr. Durkin some questions that might help me understand how she’s dealing with them 

in Rhode Island. 

I did a little bit of research on your district, Dr. Durkin, and I 

think you have about 1,700 students. Is that right? 

Dr. DURKIN. That’s correct. 

Mr. ANDREWS. And so I’m—and it’s a K to 12 district? 

Dr. DURKIN. It’s a pre-K through 12 district, yes. 

Mr. ANDREWS. So I’m assuming that, just pick the third grade, 

for example, has maybe 140 children, 145? 

Dr. DURKIN. About 134. You’re close. 

Mr. ANDREWS. OK. Could you be a little more specific? 

[Laughter.] 

Mr. ANDREWS. I notice in your testimony you say that about a 

quarter of the children in your district are identified IDEA. Does 

that hold true in the third grade roughly? 

Dr. DURKIN. Generally—it’s interesting. There’s right now a significant bulge at the ninth grade because of students having been 

identified so in grades. 

Mr. ANDREWS. What I’m asking is, about how many of your third 

graders are IDEA students? 

32

Dr. DURKIN. I would say approximately—I would say about 10 

percent at this point. 

Mr. ANDREWS. So maybe 13 or 14 children? 

Dr. DURKIN. Correct. Yes. 

Mr. ANDREWS. What’s the N in Rhode Island? What’s the smallest group—what’s the group that you have to disaggregate to? Ms. 

Sabia just said it’s 5 in Maryland. It’s 20 in New Jersey. What’s 

it in Rhode Island? 

Dr. DURKIN. It’s 30 to 45 in those issues. And I think that’s a 

real measure of concern, if I can elaborate on that. 

Mr. ANDREWS. Well, can I just ask you a question first? 

Dr. DURKIN. Yes. Sure. 

Mr. ANDREWS. If I understand the regulation the Department 

has just put out, with respect to your third graders, and again 

we’re using about 130 of them or so, that at most, two of them 

could be waived out of the assessments under No Child Left Behind, 1.5 percent, 1 percent is 1.6 children or something, so it’s two 

kids, which means that there are 11 or 12 children in the third 

grade in your school district who will be subject to assessment 

under No Child Left Behind, which I support and agree with. How 

do you plan to assess them? What are you going to do? 

Dr. DURKIN. We’ve used the regular assessments that we are 

using. And at this point in time, the concern that, in terms of the 

cell size, and I think your point is a good one, is that we need to 

really look at the cell size to ensure that that’s not being used to 

minimize the impact of No Child Left Behind. 

Mr. ANDREWS. If the cell size were five in Rhode Island, so you 

would have I assume two groups of third grade children who are 

IDEA, right? How would you assess those 10 or 11 children? You 

would assess them against the regular Rhode Island third grade 

assessment? 

Dr. DURKIN. That’s correct. With accommodations as needed, depending according to their IEPs. 

Mr. ANDREWS. Without in any way disclosing any—I guess I 

shouldn’t use a specific rate. Generically in your school system, 

based on your research, what percentage of the IDEA children do 

you think have the potential to achieve total proficiency on the regular assessment? 

Dr. DURKIN. My view with progress—right now we’ve targeted 

approximately 23 percent of students who have not reached the 

standard at the middle school level, grades 5 through 8, and 25 

percent grades 9 through 12. Interestingly enough, in that percentage point, approximately 10 to 15 percent of those students are students with IEPs. They are not all students with IEPs. 

Mr. ANDREWS. I understand. 

Dr. DURKIN. Which comes back to the Congressman’s question 

about the overidentification issue. 

Mr. ANDREWS. And again, without making a rhetorical statement, I would say all the children have the potential to achieve. 

Dr. DURKIN. Absolutely. 

Mr. ANDREWS. But looking at it in terms of passing the assessment, what do you think the optimal result is for passing the assessment? A hundred percent? 

33

Dr. DURKIN. I would—yes, we shoot for 100 percent over time in 

terms of looking at the benchmarks to ensure that we’re constantly 

increasing our level of proficiency toward that. 

Mr. ANDREWS. Are you satisfied that you’re being given sufficient 

flex ability on test accommodations that you can fairly evaluate 

those 10 or 11 children? 

Dr. DURKIN. Yes. 

Mr. ANDREWS. Are there any additional accommodations that you 

would ask for? 

Dr. DURKIN. I would probably, in working with my IEP team, see 

what those additional would be needed, and we would then accommodate that individualized request for that. 

I have not had issues with the accommodation issues. My IEP 

teams have not. In fact, we’re really trying to do what my colleague, Ms. Sabia, is saying, to really look at the students who can 

take the standardized testing with as close to the valid procedures 

that are administered for that. 

Mr. ANDREWS. Just very quickly I’ll wrap up. There are three 

schools in your district? 

Dr. DURKIN. Yes, there are. 

Mr. ANDREWS. Are any of them on the needs improvement list? 

Dr. DURKIN. There are—all three schools are considered high 

performing. Two are what we consider the sustaining model, one 

is in the improving level. So our goal is to always be high performing and improving. However, because of the cell size and the 

smallness, there are significant numbers of students who have not 

reached the standards, and because I have such a small district, I 

have the benefit of knowing every one of those kids. 

Mr. ANDREWS. I have a lot of districts like yours in my area, 

that’s why I’m very interested. Thank you very much. 

Dr. DURKIN. Thank you. 

Chairman BOEHNER. The chair recognizes the gentleman from 

Georgia, Mr. Gingrey, for 5 minutes. 

Mr. GINGREY. Thank you, Mr. Chairman. I was in my district 

last week—well, actually, Monday of this week, talking about No 

Child Left Behind and in particular, regarding IDEA special ed 

students and the testing. 

There seems to be some confusion, at least in my district, about 

the 1 percent rule. The assistant superintendents and principals 

that were at this meeting felt that the 1 percent rule was only applicable to 1 percent of the students being tested, not the whole 

student population. It’s my understanding that it’s the entire student population, and that when you calculate that and you apply 

it, then those numbers to your special ed population, that you’re 

able to have an alternate assessment for up to 9 or 10 percent of 

that subgroup. 

They went on to express a concern about the remaining students 

in that subgroup, those that are not part of that 9 or 10 percent 

that you’re able to do alternate testing because of the 1 percent 

rule. And the rest of those students of course have a standard testing. And depending on their IEP, of course, you make special provision for them, whether it’s vision-impaired or hearing-impaired or 

ADD or whatever those needs might be, to optimize their chances 

of succeeding on the tests. 

34

But these teachers and these administrators felt that even given 

all of that, it was unlikely that this larger population of your special education students, IDEA, that they would hardly—maybe 

never be able to be brought up to grade level because many of them 

at the outset are two and 3 years behind their peers, and that the 

goal that this particular school system was setting was to raise 

them by a half a year in each full calendar year. So they felt that 

it was an unfair burden to expect them to take a standard test that 

the regular ed students are taking, and they could not make that 

adequate yearly progress. So that I guess basically what they’re 

saying is you need to cut us some more slack. 

And I would like to ask particularly Dr. Durkin and Dr. Rhyne 

about that, because I truly believe that No Child Left Behind 

means exactly what it says. And while these children may be a couple of years behind or more at the outset, hopefully at the end of 

the day, before we get to 2014, that they will be no longer being 

left behind. If you’ll comment on that, I would appreciate it. 

Dr. RHYNE. It is a challenge, and we have children who are being 

instructed. Their instructional level is several years below their 

chronological level. And the question you raise is a good one and 

a very legitimate one. 

And that is where a district really needs to get focused from the 

top down and to put the message out about the need to provide intensive interventions. And it’s not just special education children. 

There are other children as well, intensive interventions for those 

children where in effect they’re learning more in a year than their 

counterparts, because if they don’t learn more, they will never 

catch up. 

And the importance of—I’ve said this before—using data to make 

those decisions, rather than guessing as to what you think might 

be right and what the child should be working on, but using very 

specific data to make those instructional decisions; by providing 

after school programs; by providing Saturday programs where we 

really, really get focused on what children need. And I do believe 

that they will make and pass that standard test. 

Dr. DURKIN. I think the issue of leadership and aligning goals 

that everyone is, as Dr. Rhyne said, focused, but everyone is on the 

same page. There has to be a real connection between, for example, 

my superintendent goals, the school improvement team goals, as 

well, as the supervisory goals I expect from my administrators. And 

all those have to point to achievement, teaching and learning. And 

there has to be a progression to understand that it’s doable, but 

that we’re all moving toward that direction. 

So I really see an alignment of having everyone understand, verbalize and speak the focus that is on literacy and numeracy. 

Mr. GINGREY. Thank you very much. I am encouraged by those 

responses. And thank you, Mr. Chairman. 

Chairman BOEHNER. The chair recognizes the gentlelady from 

Minnesota, Ms. McCollum, for 5 minutes. 

Ms. MCCOLLUM. Thank you, Mr. Chair. If the Children’s Defense 

Fund got a dollar for every time we said ‘‘leave no child behind,’’ 

we’d have more and more children succeeding. I want to talk about 

just a couple of things, and that is, if someone after I’m done with 

my question would comment about the role of social capital in makVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
35

ing sure that all of our children reach their full potential, and that 

goes to parents’ education, access to learning, sometimes due to opportunities because of limited income—I couldn’t afford to take my 

children to the science museum—all those things are not only important to children that we talk about in the mainstream, but 

they’re of equal importance to children with disabilities. And so the 

social capital and the investment in that and helping those children succeed I think is something I would like to have some comment on. 

One of the challenges I think that I’m hearing very clearly is the 

labeling issue, and people saying OK, this child is special needs. 

Therefore, we don’t have high expectations. It has been my experience in my school districts in Minnesota that I haven’t run across 

parents who don’t have high expectations for their children with 

special needs. Being a parent of a child who was in special needs 

labeled, you know, well, maybe because of his dyslexia, he 

shouldn’t take any foreign languages, and now is going to get his 

masters degree in English as a second language and is fairly proficient in Japanese, reading and writing it, we kept those high expectations. We pushed our school districts, and I feel that the parents in Minnesota have done that. 

But at the same time, we are hearing from many of our folks in 

Minnesota, you know, if we don’t get all the resources we need in 

order to make all of our children successful, holding the state accountable, holding the school district accountable, puts everyone at 

edge with one another. And I was just recently in a high school 

where there was a special needs student, and his comment was he 

had some things he would like to see addressed in his individualized plan, but he turned around to the rest of the students in the 

classroom and he said, but everybody here has things that they 

would like to have added as value to their education. 

So my question is, given the fact that Washington, D.C. right 

now is under a lead water alert, and we know that contributes to 

children not doing well, how do we as a country move forward, address the social needs, the environmental needs, and the needs of 

all of our children, because all of you are finding parents competing 

for limited resources? So what are some of the challenges you’re 

facing in making this law work? 

Dr. RHYNE. If I may address that. I think one key thing is, as 

we’ve talked about before, early childhood programs that emphasize literacy I think are critical so that children come prepared to 

learn in kindergarten. Where language is really stressed within 

that early childhood program it’s critical. 

I think it’s critical that we have two things in a district, in a 

school district: one, that we provide more inclusive practices for 

students with disabilities, when you talk about the social capital. 

I think it’s critical that students with disabilities be in general education classrooms and that special education teachers perhaps 

could be of more benefit not only to those special education children 

but also to general education children who are struggling. 

Ms. MCCOLLUM. If I may, because my time is going to run out. 

Dr. RHYNE. Yes. 

Ms. MCCOLLUM. The question then becomes, and was, do you 

have the resources to do that? Because that costs money to do. 

36

Dr. RHYNE. I believe we do have the resources to do that. I think 

if we’re creative with what we have and we think outside the box 

and get people out of their little silos. Special educators, and I am 

a special education teacher, we think that only we can do it and 

only we can educate the students with disabilities, and it’s very uncomfortable as a special educator to move out of that box and to 

move into general education and to be doing it a different way—

for example, to be co-teaching. But I think it’s critical for the students with disabilities and can potentially be very, very helpful for 

other students in that classroom who are struggling. 

And I’d like to just make one other point. The whole issue of students and social capital and how children come to school, I think 

it’s critical that schools establish positive behavioral interventions 

and support; that a whole school establishes what the rules are in 

the school, where everybody from the custodian to the cafeteria 

worker to the parents to the teachers to the children can articulate 

what is expected in that school. 

And then for those children, 85 percent of the children should be 

able to behave under a universal model like that. Then another 15 

percent of the children are going to have difficulty and need some 

group work, and schools can set that group work up where there 

are peer bodies, where there are small groups where the psychologist is working with a small group, maybe on anger management. 

And then there’s another 5 percent who are going to need individual work. 

A PBIS model is a research-based model, and I think as districts 

and the problems that public schools have with discipline, I think 

we need to be looking differently at how the adults do business in 

schools. 

Ms. SABIA. I would just make a comment about the resources, 

just a quick example of how it doesn’t always take resources. Creativity is the buzz word here, and parents can help a lot, you know, 

with coming up with some of these ideas. One of the ways to help 

kids who are disadvantaged, who are not getting what they need 

at home for a variety of reasons are some of the after-school activities like homework club, whatever. But if you have a child with a 

disability, they may not be able to access it because maybe they 

need some more support. 

So in my school we started why not find out what middle 

schoolers might want community service credit, and connect the 

parents with those students and bring those students in to help. 

They did that with my son in science club. So here after school, 

he’s getting access to something that he maybe would not be able 

to do as easily if the person teaching it did not have the support, 

and that’s more time that a student who may not have opportunities at home can get those enrichment opportunities and not have 

it cost anything for that extra support. 

So it’s creativity. 

Ms. MCCOLLUM. Transportation. That’s the problem. 

Ms. SABIA. Transportation is an issue. But I really do believe, 

you know, some problems can’t be creatively handled, but there are 

enough of them to free up resources for where you can have those 

creative solutions. 

37

Mrs. BIGGERT. [presiding] The gentlewoman yields back. The 

gentleman from Minnesota, Mr. Kline, is recognized for 5 minutes. 

Mr. KLINE. Thank you, Madam Chairman, and thank all of you 

for being here today. Some of you have traveled far. I’m especially 

pleased to see Dr. Thurlow from Minnesota. It’s always nice to 

have somebody from your home state here. 

Let me just say that I know it must be horribly disconcerting to 

you to travel so far and see Members and coming and going from 

these hearings as we walk in and we walk out, and I just want to 

assure you that none of us mean any disrespect and none of us 

think that your testimony and your answers is anything but critically important. We just have a system that’s almost impossible to 

understand much less explain, we schedule hearings here at the 

same time. And so in my case, I’m listening to General Abizaid 

from the Central Command testifying in one hearing, which seems 

to be fairly important, considering the 200,000 U.S. troops in his 

area of responsibility, and then to this panel, which is also just extremely important. 

This issue has been discussed at great length, and I can’t tell you 

how many teachers, principals, superintendents have been to my 

office or me to theirs to talk about No Child Left Behind and the 

difficulties that special education students are offering them. And 

I know this has been discussed. Chairman Boehner brought it up, 

but I want to revisit it for just a minute, and that’s the 1 percent 

rule that the Department has just put out that allows 1 percent of 

students to get different assessments. 

Even with that, I’m hearing from folks in Minnesota that that’s 

not good enough; that the 1 percent number is too low, and yet I 

think I’ve heard from the panel that we should stay the course. 

And so maybe we’ll start with Dr. Thurlow since just I’ll pick on 

my fellow Minnesotan. And if you would just address that specific 

issue, the 1 percent. Is that right? Should we have any percent? Is 

that number too low? And then anybody else who would like to 

offer a thought. 

Dr. THURLOW. Let me start. We collect data. We’ve been working 

with all states, so let me start with some data that we collected in 

2000 and 2001 when most of the states had their alternate assessments in place and had collected the data. 

Now not all states had collected the data, but we had data from 

most states. And we looked at their alternate assessment data at 

that point. And I can’t right now off the top of my head recollect 

the exact number, but the majority of states at that point had less 

than 1 percent of their students, of their total population of students, taking their alternate assessment. That’s a good barometer 

I think because that was before the accountability things were 

right there on top of their head. 

So once you put that accountability in there, then everybody’s 

getting really nervous and they’re worried about whether their kids 

are going to be proficient. And so then they’re looking for, I don’t 

want to call it loopholes, but they’re looking for ways to figure out 

how to get those numbers up. 

And so I think the 1 percent number is the break number. The 

data that I’ve looked at tell me that the number is the right number. That’s not to say that people are worried about their numbers 

38

and that they think maybe, you know, there are some kids right 

on the borderline that maybe they really shouldn’t be in the regular assessment at this point anyway, and maybe they should be 

in the alternate assessment, but every piece of data that I’ve looked 

at tells me that 1 percent is the right number. Some states are way 

below that 1 percent figure. 

You know, in my mind, 1 percent is right, and there’s no question in my mind. 

Dr. DURKIN. With all due respect to Dr. Thurlow, and I do believe nationally when we look at this group of students, this is a 

group of students that are clearly identifiable at birth, and we 

know clearly that they’re going to be eligible for IDEA services. But 

I will just give one piece of examples. In Boston, which has huge 

medical facilities—I believe our city in Houston has the same—we 

were at times having a large proportion of students, significant proportion of medically fragile students, simply because of our medical 

investments, these children were living longer and coming to 

school, where previously, 10, 12 years ago, they would not be. 

So I ask you to caution to look at the 1 percent, but for states 

to be cognizant of certain things that do impact on their areas that 

may merit that, without going into the loophole or escape valve 

kind of provision. Because these students are clearly identifiable. 

And if anything should be asked, what are the reasons for asking 

for an increased percentage, not to increase or change the accountability standard but to possibly include students who really do 

merit that category. 

Mr. MILLER. Would the gentleman yield? Oh, excuse me. Go 

ahead. 

Mr. KLINE. Yes, I’d be happy to yield. 

Mr. MILLER. I just wanted to yield, if you could incorporate in 

your answers this question of the LEAs being able to ask the states 

to increase that. I assume that would have to be based upon data. 

Dr. DURKIN. Correct. 

Mr. MILLER. And then the question would be whether or not the 

Department of Education would grant the state some leeway. 

Could you explain how that might play out in this consideration? 

Dr. DURKIN. I could definitely foresee with the data of the area 

that we’re in and the kinds of students we’re talking about according to the criteria in IDEA that a particular LEA may be representing more students in that category that might merit more 

than the 1 percent. But it would have to go through either a waiver 

process or documentation through that, through the LEA. 

Mr. MILLER. With the state? 

Dr. DURKIN. Yes. 

Mr. MILLER. And then that question would be what’s the impact 

on that on the overall state? 

Dr. DURKIN. I would think particular cities, though, would have, 

particularly in the urban cities, would have a different piece of information than you would from other cities. So I would imagine 

foreseeing going to the LEA to be able to look at that and then 

foreseeing that, again, being granted that because of the data representing in that particular location. 

Mr. MILLER. You mentioned the medical facilities. You might 

have the same situation in Minnesota. So they could theoretically, 

39

based upon hard data, go and get additional leeway or waiver for—

in that particular school system, right? 

Dr. DURKIN. But I would imagine that would be the exception 

rather than the rule. 

Mr. MILLER. Right. Right. 

Dr. DURKIN. Because the same criteria would be kept. Just the 

fact that I may have more students in that category than perhaps 

another town across the state, for that, and I think that’s the issue 

that really needs to merited, because I do hear that if we waiver 

from that criteria, we could very much be having students over 

that 1 percent that clearly should be held to standard assessment 

procedures rather than alternate. 

Mr. KLINE. I thank the gentleman. 

Mr. MILLER. I’m sorry. 

Mr. KLINE. And reclaim my time and just ask if there’s anybody 

on the panel who disagrees with the 1 percent rule. Anyone who 

disagrees? 

[No response.] 

Mr. KLINE. OK. Thank you very much. I yield back. 

Mrs. BIGGERT. Thank you. The gentleman from Massachusetts, 

Mr. Tierney, is recognized. 

Mr. TIERNEY. Thank you, Madam Chairman. Thank all of you 

witnesses. And I respect your testimony and appreciate it. I think 

we may have all benefited if we had also had a panelist who could 

raise some of the issues that we keep hearing in our districts. I’m 

not sure I’ll be able to do all of that in the short period of time that 

I have, but I do want to project out some of the comments that I 

hear and get your response on them. 

One I think hear most predominately is the claim that there’s 

not enough resources in order to accommodate all of the support 

systems that you talk about when you find there is something lacking in a teacher or in a school, many of you have already talked 

about sending resources out there to fix that situation. I’m told 

over and over again because of state cutbacks in funding as well 

as the Federal real or perceived, whichever side you want to argue 

on that, cut, lack of funding or whatever, that there just aren’t 

those resources, and therefore, schools are being put into needs improvement category more and more often. Do you find that? I 

guess, Dr. Thurlow, you’re the one that deals most often on a 

broader scope. The others can answer if they want. Do you find 

that to be the case in general? 

Dr. THURLOW. We find there’s a consistent complaint about it, 

but we also find that states are doing very innovative plans that 

are not necessarily requiring a lot of additional resources. So, I referred to the Ohio plan. They have put together a very, very impressive plan where they are pulling in existing resources that they 

now have access to. There is a wonderful array of technical assistance services that are out there available, and I’m speaking particularly from the special education side. 

There is a whole host of technical assistance services available 

to states. Ohio has built in all of those technical assistance services 

and has a comprehensive plan that it is working off of. 

40

You know, I think states being creative, filtering those resources 

down into their districts and down into their schools is one of the 

creative things that can be done. 

Mr. TIERNEY. Do you think the Department of Education is doing 

enough to help states get that done? Because I’m not sure from 

what I’m hearing that that’s the case. It seems to me that in a lot 

of instances, we’re talking about people who at least feel as if that 

isn’t getting down to their school or their classroom, and that’s 

where a lot of this feedback is coming, that they just aren’t getting 

that support. 

Dr. THURLOW. I think there is a lot that’s happening and that 

there’s so much to be done and that people feel so much pressure. 

So, you know, I do think it’s there. I just think that people feel like 

they’re under so much pressure. We just need to give it more time. 

Mr. TIERNEY. Well, in line with that, let me read you a statement 

and get your reactions for this: 

‘‘Throughout history, business and schools in America flourished 

as powerhouses of economic and educational opportunity. For businesses that kept up with rapid globalization, the label continuous 

improvement organization became an asset, an advantage that 

would bring technical expertise and expansion opportunities. However, the President, Congress and state policymakers chose to cast 

the continuous improvement of schools as a negative. Policies and 

regulars appear designed to impugn rather than support public 

schools.’’ 

What would be the panel’s response to that statement? 

Dr. THURLOW. Well, I think some of the media have created the 

impugning piece of this, and that is a tragedy, I think, because I 

think that the resources that are there to help the schools improve—and I guess I’ll turn it over to my— 

Ms. MCCOLLUM. Would the gentleman yield? 

Dr. THURLOW. —to the others that are right down there in the 

field there. 

Ms. MCCOLLUM. Would you yield? 

Mr. TIERNEY. Sure. I’ll yield to the gentlelady. 

Ms. MCCOLLUM. Dr. Thurlow, you’re familiar with the Minnesota 

state auditors recent report, by 2014, the overwhelming majority of 

our schools in Minnesota will be failing. And that’s a nonpartisan 

report. And that I find very alarming. That is separate a little bit 

from what we’re talking today. But that was a nonpartisan report. 

Dr. THURLOW. Actually, I have to apologize, because I’ve been in 

the state so little I haven’t had a chance to see the report. 

Ms. MCCOLLUM. Yes, well, Mr. Jim Nobles, our esteemed state 

auditor, released the report, which stated under No Child Left Behind, over 80 percent of our schools will be failing in Minnesota. 

Dr. THURLOW. All I can see is often—and I haven’t seen that report—often those reports are based on if things stay the same. I 

apologize I haven’t seen the report. 

Mr. TIERNEY. I have to—thank you. I made a mistake here. I had 

promised Mr. Kildee I’d yield to him, but so many people have 

asked questions between that promise and the time that I almost 

forgot Mr. Kildee. I’ll yield to you. 

Mr. KILDEE. Thank you very much. I just want to thank Ms. 

Sabia for offering her additional response and insight to my quesVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
41

tion on the 1 percent rule. That was very, very helpful. And also, 

Madam Chair, I’d ask unanimous consent to submit a statement 

for the record from the American Federation of Teachers. 

Mrs. BIGGERT. Without objection. 

Mr. KILDEE. Thank you. 

[The material to be provided follows:]

Statement of the American Federation of Teachers 

The AFT has long championed high standards around core academic subjects and 

accountability for the progress of all students, including students with disabilities. 

We support the use of valid and reliable assessments and the disaggregation and 

reporting of all mandatory state and district assessments so that we know how all 

students are doing and so that help can be provided to those who need it. 

We are, however, concerned about how children with disabilities are being integrated into the accountability systems under the No Child Left Behind Act. For example, although the Department of Education has revised its Title I regulations pertaining to the assessment of students with disabilities, the regulations are still problematic for two reasons. 

First, the revised regulations require that, except for the 1 percent of students 

with the most severe cognitive disabilities, the scores of students taking an alternate assessment must be measured against grade-level standards. This means that 

students who are performing well below grade level, but who do not fall into the 

one percent, will almost certainly be rated as not proficient. These are students who 

may be improving, but the regular grade level assessment, even with accommodations, does not accurately measure their academic progress. Typically the Individualized Education Program (IEP) team recommends that such students, often referred to as ‘‘gap students,’’ take an out-of-level assessment because it is considered 

to be a better and more accurate way to measure the progress of their achievement. 

As the Title I regulations are written, out-of-level tests will, for Adequate Yearly 

Progress (AYP) purposes, only count for the significantly cognitively disabled, not 

the ‘‘gap’’ students. Districts and schools are left with no options for appropriately 

assessing these students for AYP purposes. 

Second, the revised Title I regulations only allow the proficient scores of students 

held to alternate achievement standards to count for AYP purposes if they do not 

exceed 1 percent of all students in the grades assessed. Proficient scores that exceed 

the 1 percent cap may not be included in AYP calculations. Setting a cap on the 

scores that may be counted is extremely arbitrary, and preliminary evidence suggests that the cap may be particularly unfair for urban districts because they tend 

to educate more students with significant disabilities. 

Mrs. BIGGERT. Do you yield back? 

Mr. TIERNEY. I’ll keep going if I can, but it looks like the red 

light is on, so I’ll yield back. 

Mrs. BIGGERT. Your time is up. The chair recognizes Ms. Majette, 

from Georgia, for 5 minutes. 

Ms. MAJETTE. Thank you, Madam Chairwoman, and I thank the 

witnesses for being here and for the wonderful work that you all 

have done in this area. 

I’ve been sitting here for almost the entire hearing, and from 

what I understand, the brief comment that was made regarding resources, is it the opinion of all four of you that we do have sufficient resources to meet the needs of children and their parents nationwide with respect to this particular application of leave no child 

behind? And I’m asking that question because in my district—I 

represent suburban Atlanta, Georgia’s Fourth Congressional District, and in the state of Georgia, our education system is in a precarious position with respect to funding. 

With the lack of funding or the underfunding of IDEA, of Head 

Start and of No Child Left Behind, we’re really not able to meet 

all of the needs that we do have, and particularly in those areas 

42

where we have large minority communities, large communities of 

people where English is not their first language, where there are 

substantial cultural differences. And I just would like to hear the 

panel address whether you think that we do have enough funding 

to do what needs to be done for all of the different segments of the 

population as I’ve described. And perhaps—well, I don’t know. Dr. 

Thurlow? 

Dr. THURLOW. I’ll start it off, but I think those in the districts 

really are the ones that probably need to talk more about this 

issue. Looking only from a broad perspective, I’m not sure that I 

can answer that we have sufficient funds. I just, you know, what 

I think is, funding has always been an issue. It’s not a new issue 

because of No Child Left Behind. So— 

Ms. MAJETTE. Well, I certainly—I understand that the implementation of No Child Left Behind is going to require additional 

resources, whether you say it’s money or something else, but it is 

going to require additional resources, and in terms of intensive 

intervention, if we already are not able to meet needs as they stand 

now, how do we expect to be able to do that? 

Dr. THURLOW. We need to be thinking creatively and changing 

what we do. I mean, this is an opportunity to do that, to meet the 

needs of kids and do what we do differently. So we really do change 

things. And because what we’ve been doing hasn’t been working. 

There are too many kids who have been left behind in lots of different ways. This is an opportunity. 

Ms. MAJETTE. Dr. Durkin? 

Dr. DURKIN. I’d like to address that, because I really do think we 

have not been doing a great job of using the resources we do have. 

I have the highest per pupil spent on students in the state of 

Rhode Island, and asking me here today, if you said is that money 

well spent, I am appalled that I am a high performing school district with still 23 percent of fifth through ninth graders not reading 

at standards. 

So my quest as a new superintendent is really looking where the 

resources are going, realigning them, and targeting them to the 

needs we have. And that means doing things differently and maybe 

stop doing some things, but ensuring that they go to the services 

of the kids that we do need. 

Ms. MAJETTE. Thank you. Dr. Rhyne? 

Dr. RHYNE. I think another issue is leadership in a district and 

focus in a district so that from the top down, from the superintendent, every level of administration, the teacher level, cafeteria 

workers, custodians, that everybody knows in that district what the 

goals are, what you’re after. I think that’s critical, and I think it’s 

critical to develop strategic plans with very specific, measurable 

targets so that all the consumers know where a district is at any 

time and if we’re meeting the goals or not. 

And I think, like Drs. Thurlow and Durkin have said, it’s taking—we’re never going to have enough money. So it’s taking the 

money that we do have, and it’s taking the resources that we do 

have, and doing business differently. 

Ms. MAJETTE. Thank you. And Ms. Sabia? 

Ms. SABIA. Well, I think first of all, I mean, IDEA needs more 

funding and full funding and that would take some of the weight 

43

off of what school systems are dealing with. But I also think there 

are ways, and not just creative—I gave an example of a real specific creative way to deal with things—but on a larger level. 

School systems have, from the beginning with IDEA, for some 

reason developed this two-tier approach of special education and 

general education, and they’re working these two parallel systems, 

and that’s very expensive. There is a lot of duplication. You’re creating a whole system of something, like extracurricular activities, 

and then later on saying, oh, what about those kids with special 

needs? What do we do with them? 

And we heard that sometimes transportation is an issue. Well, 

if those kids were in their neighborhood schools to begin with, 

they’d go home on the regular bus with the other kids. They 

wouldn’t have to have some special special ed bus. 

And this goes all the way up to the administration. When you’re 

running two separate school systems, a special ed system and a 

general ed system, there’s a lot of add on expense. So with No 

Child Left Behind, we are now talking about one system of accountability, one school system. They’re all our kids. And if that 

mindset starts flowing down to how you do administration, how 

you do curriculum, how you run your schools, I think we’re going 

to find ways in which we can do it as one school system and just 

naturally I think costs will be cut that way, and also to the extent 

you want access to the general ed curriculum under No Child Left 

Behind, that’s going to help improve scores for students. There’s 

going to be more access to LRE, Least Restrictive Environment, 

under IDEA, I think if IDEA is fully implemented and you have 

more of that general access—the access to general ed curriculum 

and access to least restrictive environment, that will help No Child 

Left Behind and it will also allow for students who are in their 

neighborhood schools to have the same transportation, and you’ll 

stop duplicating some of these things. 

But it’s going to take time. This should have been happening in 

many states for a long time, and I’m afraid some of the states that 

are having the problems, it’s partly because they weren’t doing 

some of the things early on, and now it’s catch up time, and now 

it counts. And so we’re going to have a tough period to go through, 

but that doesn’t mean it’s not important and it isn’t something we 

should go through. And funding has never been an issue not to do 

the right thing, as far as I’m concerned. And hopefully, while we 

work out the funding issues, people will continue to do what’s right 

for kids with disabilities and not use that as a reason to not give 

them the accountability they deserve. Thank you. 

Ms. MAJETTE. Thank you. 

Mrs. BIGGERT. The gentlewoman yields back. The gentleman 

from Maryland, Mr. Van Hollen. 

Mr. VAN HOLLEN. Thank you, Madam Chairman, and thank all 

of you who are here today for this very important subject. Ms. 

Sabia, thank you for all you’ve done in Montgomery County, Maryland, as well as for the country. 

I had one question that relates to something that came up locally 

that I think also is an issue nationally which I believe has been 

resolved, but I’d like to figure out what the cause of it was. In 

Montgomery County when we were taking the state assessments I 

44

believe a year ago, the special education kids were given supports 

as part of taking their test, consistent with their special programs 

that they had. And as a result of that, those test scores were 

thrown out, and they were all, you know, counted as failing. Was 

that as a result of a state interpretation? Was that as a result of 

Federal law? And if it was part of the Federal law, has that been 

changed now? Because I think there was general agreement that 

people should be able to have the same supports that were available through their IEPs when they’re taking the tests. 

Ms. SABIA. Well, my understanding, it actually wasn’t the fault 

of any of those things. It was actually the test development. The 

test was developed in such a way reading assessment where there 

was a decoding portion, and obviously if someone is reading to 

you—it was a verbatim reading accommodation that caused it to be 

thrown out—if someone is reading to you, that would invalidate obviously a decoding portion, because you’re not reading it. But then 

there are other parts to that test, and they were invalidating the 

entire test. 

And this is not new. I mean, it became a big issue last year because of AYP. This has been going on every year my child has 

taken this test, and it’s never become a big issue because it didn’t, 

you know, count, so to speak. And the only difference last year is 

for some reason they wouldn’t even give you scores. That was 

something new. 

But because of the pressure of No Child Left Behind, there was 

just something put out, I think it was January 24th, that this has 

all been cured, that they did the test in such a way now that they 

can separate out the score of the decoding portion and the rest of 

the test will be valid and will be used for AYP. So to me that’s an 

example of how the pressure of No Child Left Behind can help creatively fix some of these problems that have been around. 

So it’s my understanding we’re in good shape on that. 

Mr. VAN HOLLEN. Good. Because that’s been an issue elsewhere, 

as well. 

Dr. THURLOW. I’d like to make one other comment, and that is 

one of the real benefits that has come out of that. But it’s also 

made us aware of something else that needs to happen, and that 

is one of the precursors of that was that IEP teams made a decision 

that lots of kids needed that reading accommodation, probably too 

many kids, more kids than actually did need that reading accommodation, and that identifies a need for more training for IEP 

teams, probably more research related to some of the accommodations. So there are still some needs out there related to research, 

professional development, training of various groups. So there’s 

still some needs. 

Mr. VAN HOLLEN. OK. You’re saying overidentifying the number 

of kids who need the reading supports? 

Dr. THURLOW. That particular accommodation. 

Mr. VAN HOLLEN. Dr. Durkin, you mentioned an issue with respect to being able to measure an academic progress standard or 

the value added. And I guess one question is for kids who were not 

meeting proficiency standards but have made lots of progress, does 

No Child Left Behind provide some kind of recognition of that kind 

of advancement, or is it dangerous to provide that kind of recogniVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6602 H:\DOCS\92309 EDUWK PsN: NNIXON
45

tion because you want to really make sure people are absolutely 

proficient, even though they made a lot of progress? 

I think some schools are frustrated they may make progress and 

still be failing with respect to proficiency with no recognition of the 

fact that the kids have made progress. Could you respond to that, 

and anybody else? 

Dr. DURKIN. I think you’ve captured that very well. And the difference is in a balance. We absolutely must stay firm on a proficiency standard, but in leading a school district, particularly in 

classrooms—and I’m a small district, so I’m looking at classroom 

data—I’ve got to encourage those individuals to keep working, and 

those families and kids to keep working. 

So I do see over time if we can move toward staying with the 

proficiency standard but giving some recognition, and that really 

comes to the state’s accountability systems, of looking at progress 

made, and specifically targeting that progress in very objective 

terms, in terms of the percentage of students moving from one level 

to the next, the percentage of students that may have started 3 

years below level and now are at—or are now moving a full year 

and a half progress, or have made the rate of progress much 

quicker because of the accelerated programs put in place. 

Those are just some thoughts to really look at, not only the actual standard piece, but the morale piece that keeps you going 

every day when you come into work. 

Mr. VAN HOLLEN. And that can be done, you think, at the state 

level rather than through changes at the Federal level with respect 

to— 

Dr. DURKIN. I believe so. I’m doing that at the local level. When 

I do a report, I report not only my NCLB standards, but actually 

by grade what the progress has been made also for the community 

to understand. 

Mr. VAN HOLLEN. OK. Thank you. Madam Chairman, I’d like if 

I could, with unanimous consent, to submit the testimony of a 

teacher from Maryland, Rosemary King Johnston, who at one point 

was going to be—I think there was a last minute request that 

could not be accommodated for time purposes with respect to her 

testimony. If I could submit that for the record. 

Mrs. BIGGERT. Without objection, so ordered. 

Mr. VAN HOLLEN. Thank you. 

Mrs. BIGGERT. Yield back. 

Mr. VAN HOLLEN. I have one last question. I’ll pass. It’s late. But 

I guess— 

Mrs. BIGGERT. It’s usually that last question that’s the zinger. 

Mr. VAN HOLLEN. No, no. It’s just—it has to do with this issue 

of differences among the states between the number of children 

who are in a particular category for the purposes of measuring 

AYP. You said Maryland’s got an N. We’ve been saying the N is 

5. Some have 20. How—it’s difficult enough to make sort of crossstate comparisons, because states already have different tests and 

different pass levels—does that just further complicate? Should we 

have some more consistency among states with respect to that 

number, or should we just leave it to the states as we have it 

today? 

46

Dr. RHYNE. I believe that we should have more consistency. And 

let me give you an example. In a school with about 1,000 students, 

and we can assume that possibly out of those 1,000 students we’ll 

have about 120 special ed students, and so with those 120 special 

ed students, that school will be held and will count all of their special education students in AYP. 

Let’s take a small school, a small school with, say, 300 students. 

And let’s assume in that small school with 300 students that we’re 

going to have roughly around 30 to 36 special education children. 

And let’s say the maximum subgroup is 45 in that state. All of 

those children get left out of the accountability system. And if you 

look at the National Center of Educational Statistics data on the 

size of schools, in the United States, median school size is about 

460. 

So in a report there are approximately almost half of the schools 

in the United States could be left out of the accountability standards for students with disabilities. It’s very disconcerting to me. 

Mr. VAN HOLLEN. OK. 

Ms. SABIA. And this also adds to one of the myths that’s going 

around. When you hear that, and then also consider how you’re 

hearing all over the country that a few kids with disabilities are 

causing our school not to make AYP, well, even with all that flexibility, you are still hearing that. And I do think it should be more 

consistent, and I congratulate my state for being the lowest, or one 

of the lowest. I think there’s more than one that has 5. And that 

I hope other states step up to that plate. 

But the people that are resisting this are still saying, even when 

they’ve got huge Ns for their school and are not having to count 

these subgroups, they’re still saying, you know, this group of kids 

is bringing down the school. And that’s a particular concern to parents of kids with disabilities, because it’s making our kids the 

scapegoat. 

Somebody else brought forward, I think you might have been the 

one, Mrs. Biggert, about the issue with saying that the schools are 

failing, that language, which is not even in No Child Left Behind, 

and it’s needs improvement. And I think it’s fair to say that a 

school that may be a great school, a wonderful school, is doing a 

lot of great things, if they’ve got a subgroup in that school that is 

not doing well, it would not be fair to say they’re failing in their 

mission, but it would be fair to say they need improvement. 

So this whole rhetoric turns around and it gets used in a negative way against kids with disabilities, and that’s the part that I 

object to is the way in which the language and these myths keep 

propagating, and it’s one of those myths people don’t know about 

that in general, and they don’t realize the extent to which kids are 

still, even with the strength of this law, kept out of the accountability system. 

Dr. THURLOW. I’ll just add that we’ve been trying to go to states’ 

web sites and pull those datas to see if we can actually get to that 

question of, you know, how many, in each of the states, how many 

schools are in needs improvement because of their students with 

disabilities subgroup, how many because of other subgroups, and 

let’s actually get the data and see what’s happening. 

47

And we can’t find those data to look at. And part of it is because 

of the cell size issue. In too many schools, the cell size number prevents us from seeing kids with disabilities. So it is an issue I think 

to be able to look at the data and see really what’s going on. 

Right now we’re, you know, having a lot of complaints, and mostly it’s because of rumor, and I’m not sure it’s actually true. 

Mr. MILLER. Just on that point, are parents or advocacy groups 

organizing around this issue of whether their kids are going to become invisible in this process or not? 

Ms. SABIA. Well, I’m in the process of writing this parent friendly 

brochure that we keep saying is an oxymoron, because it’s a very 

difficult law to explain to anybody, and especially things like N 

numbers. But one of the things we’re saying to parents in this is 

these are the things you can do at your state level, and one of them 

is find out what the N number is for your state and question why 

it is so high, and do advocacy on these specific parts, because the 

state does have so much flexibility. Make sure your state is using 

it wisely and not in ways that are going to undermine the accountability for your child. 

Dr. RHYNE. One other thing I’d like to just mention is some 

states have petitioned to get higher subgroup numbers for students 

with disabilities, and so a state, for example, their N might be 30 

for all other groups, but 45 for students with disabilities. Something to take into consideration. 

Dr. DURKIN. I would also like to add about the backlash that we 

all can work together regarding the issue of penalizing and demeaning the addition of special education students in a school because it will drag down their AYP. I think that’s a very important 

message. Students with disabilities add an incredible breadth to a 

school to both children who have disabilities and those who do not. 

And I think we need to look at that value of what that brings to 

our communities and ensure that there is no backlash in a public 

relations standpoint for that. 

Mrs. BIGGERT. Thank you. I think that last question was a very 

important question, regardless. 

But I wish to thank the witnesses for their valuable time and 

testimony. You have been just an outstanding panel, and you have 

the expertise that is so important as we go through the implementation of No Child Left Behind, so we really appreciate that you’ve 

been here, and I thank the Members for their participation. 

If there is no further business, the Committee stands adjourned. 

[Whereupon, at 12:25 p.m., the Committee was adjourned.] 

[Additional materials submitted for the record follow:]

Statement of Hon. Charlie Norwood, a Representative in Congress from the 

State of Georgia 

Mr. Chairman I thank you for holding today’s hearing to further explore the impact of No Child Left Behind, and more specifically, the impact of including students 

with disabilities in the Adequate Yearly Progress (AYP) provisions of Title I. As a 

longtime supporter of No Child Left Behind and a firm believer that every student 

deserves the opportunity learn and make progress, I look forward to the testimony 

of our witnesses and appreciate their time in shedding light on this critical issue. 

Mr. Chairman, we all know that No Child Left Behind reflects the four pillars 

of President Bush’s education reform agenda, which includes accountability and 

testing, flexibility and local control, funding for what works, and expanding parental 

choice and educational options. 

48

The engine that drives these important reform ideas is the ability to assess yearly 

progress for students in our public schools, and the Adequate Yearly Progress (AYP) 

provision in No Child Left Behind gives States the tools they need to help them determine if public schools are meeting the expectations of American families. Without 

AYP, it is impossible to determine which students are learning the critical skills and 

knowledge that they will need to compete in the modern workforce, and I fully support this program and the flexibility it offers to our States and local school districts. 

Mr. Chairman, I further believe that we must make sure that EVERY student has 

the skills and knowledge necessary to compete in the modern world. That is why 

I strongly support the actions taken by Congress and the Administration to ensure 

that ALL students, including students with disabilities, were included in State Developed AYP systems. Since we all desire to improve the educational opportunities 

for our most vulnerable children, I believe it is critically important to continue providing States with the flexibility they need to include children with disabilities in 

the AYP system. 

Simply put, a disabled student should not be discounted simply because he or she 

does not learn at the same rate or in the same manner as other students, and I 

believe that Congress has a responsibility to continue guaranteeing States the ability to assess the progress of students with special needs. In addition, I applaud the 

Administration for finalizing a regulation granting States further flexibility in measuring AYP for students with disabilities, so that they can develop and administer 

alternative assessments aligned to the standards for these students at the local 

level. 

The progress that Congress and the Administration has made in regards to AYP 

and students with disabilities is impressive, and I look forward to continuing our 

work in Congress to further enhance the opportunity for EVERY student to receive 

a top quality education in American public schools. With that being said, more work 

needs to be done in order to ensure that we continue to measure progress for all 

American students. 

I look forward to hearing our witness’’ thoughts on how Congress and the Administration can continue in this important endeavor. 

Thank you Mr. Chairman and I yield back. 

Statement of Hon. Jon Porter, a Representative in Congress form the State 

of Nevada 

Good Morning, Mr. Chairman. Thank you for convening this hearing on the 

progress of No Child Left Behind Programs in providing our special needs children 

with the necessary resources to achieve educational advancement. 

Through a greater understanding of how these students are assessed in the class 

room, we as legislators will gain greater comprehension of the issues facing teachers 

in the classroom. I thank our distinguished panel of guests for providing us the insight into this process as we assess the efficacy of the programs contained under 

No Child Left Behind. 

As we work to ensure that the regulations of No Child Left Behind and the Individuals with Disabilities Education Act are enforced simultaneously, we must also 

inquire as to the actual benefit proffered to those whose challenges in the classroom 

are much greater than the average tasks of academic achievement. It is my hope 

that the flexibility of No Child Left Behind will allow our schools to maintain standards of progress and achievement that provide all students, special needs or otherwise, with the appropriate learning environment. 

The announcement yesterday by the Department of Education of states’’ ability 

to exceed the 1% cap on the level of proficient scores from alternate assessments 

under their adequate yearly progress calculations illuminates the need, felt both by 

states and the federal government, to allow states substantial flexibility in determining the progress of their special needs students. This action by the federal government demonstrates the capability of No Child Left Behind to encompass the 

varying needs and standards of the states and their individual school districts. 

As we constantly review the measures of No Child Left Behind, we must continue 

to recognize the importance of the states in implementing the standards created at 

the federal level. This hearing provides us, as Members of Congress, an excellent 

opportunity to understand the varying degrees of difficulty in implementing this 

law. Again, I applaud the chairman, and this Committee, for engendering a continued relationship between the Congress and the teachers and administrators who implement the many facets of No Child Left Behind. 

49

Statement of American Occupational Therapy Association 

The American Occupational Therapy Association (AOTA) submits this statement 

for the record of the March 3, 2004 hearing. We appreciate the opportunity to provide this information regarding the relationship of occupational therapy services to 

improving results for children with disabilities under the No Child Left Behind Act 

(NCLB). It is important for Congress to monitor how well the law meets its objective 

of holding states and schools accountable for improving educational outcomes for all 

students, including those with disabilities. The topic of this hearing is critical to the 

development of a better, clearer picture of how America’s public schools should educate students with special needs. 

Children’s education and learning continues to receive a great deal of attention 

from teachers, administrators, parents and policy makers across the country. Of concern to everyone is how to best educate all students to high standards and how to 

appropriately measure student progress, particularly for students with disabilities 

and those with limited English proficiency. Embedded in NCLB is recognition of the 

link between improved student outcomes and well trained and qualified personnel. 

The law also requires school personnel to use effective instructional practices and 

other supports to help children learn. These and other issues have also been raised 

in the pending reauthorization of the Individuals with Disabilities Education Act 

(IDEA). NCLB and IDEA are expected to work in concert to help schools meet the 

learning and behavioral needs of children with disabilities. Occupational therapy 

services can play an important role in this effort. 

Occupational Therapy Services under IDEA and NCLB 

Occupational therapy is concerned about an individual’s ability to do everyday activities, or occupations, so that they can participate in school, at home, at work, and 

in the community. Occupational therapy practitioners use purposeful activities to 

help children bridge the gap between their capacity to learn and full, successful participation in education, work, play, and leisure activities. 

Occupational therapists look at the individual’s strengths and needs with respect 

to daily life performance in school, home and community life, focusing on the relationship between the child and their performance abilities, the demands of the activity, and the physical and social contexts within which the activity is performed. In 

addition to the physical aspects, each individual’s occupational performance is 

viewed through a psychological-social-emotional lens. This perspective helps the occupational therapist to understand what is important and meaningful to the child 

as well as how their roles, experiences, strengths and patterns of coping affect performance in learning and other activities. 

Occupational therapy for the school-aged child is intended to help them succeed 

in school. Intervention strategies may focus on information-processing, academic 

skill development, social interactions and ability to function in the school environment. For adolescents, occupational therapy focuses on preparation for work life 

choices, improvement of social and work skills, and learning how to create or alter 

the environment to maximize productivity. 

How Occupational Therapy Helps Support NCLB and IDEA 

Occupational therapy intervention for children and youth is planned in consultation with parents and families, teachers, and other professionals, and is directed toward achieving desired outcomes. Children are being challenged by increasingly 

higher standards of educational performance and achievement. They may feel pressure from parents, peers, and others to behave in certain ways or to conform to certain expectations that may be in conflict with one another. Depending on the student’s age, the presence of any learning difficulties may have debilitating effects on 

his or her sense of accomplishment or social competence. Difficulties with completing class assignments or in getting along with others may lead to frustration 

and self-isolation. Occupational therapy intervention for these students can address 

these stresses by identifying these psychosocial problems. 

In addressing learning problems, occupational therapists identify the underlying 

performance skills, including motor, process, communication and interaction skills 

that impede the student’s ability to participate in learning and other school-related 

activities. Intervention strategies and service models are designed to support desired 

educational outcomes, and may be provided individually or in small groups. The 

therapist also works with classroom teachers and the student’s family to determine 

how to modify the home or classroom settings, routines and schedules to provide 

structured learning opportunities and experiences that support the student’s emerging skills. Occupational therapists also help students participate in lunch activities 

in the cafeteria and to identify organizational strategies so they can attend to instruction in the classroom. 

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Occupational therapy can have a significant supportive role in testing under 

NCLB. The occupational therapists’’ expertise in helping students meet school activity and task demands can help teachers and IEP Teams to identify appropriate accommodations needed in the classroom or learning environment to support the student’s skill level. This includes identification of and training in the use of assistive 

technology or other aids that will help the student complete his assignments, as well 

as to participate in state and district assessments. These accommodations might include simple keyboarding devices such as the Alpha Smart; low-tech solutions such 

as built-up pencil grips, notebook paper with raised lines and elevated writing surfaces to assist with handwriting; and carrels to limit students’’ peripheral vision 

distractibility. 

Another area in which occupational therapy can help improve student results is 

the area of literacy. Poor or messy handwriting is a major reason for referral to occupational therapy in school settings. Many of these referrals are from general education classrooms and may be related to decreased formal instruction in the mechanics of handwriting. 

Reading and handwriting are not simple learning tasks. Both require the coordination of complex cognitive, memory, visual and motor processes. Difficulties in one 

or more of these areas can also impact a child’s view of the entire learning environment (such as learning to spell, use scissors or move through the hallways without 

bumping into another child), not just their ability to read and write. Even after 

these components are mastered, students’ do not become ’writers’ unless they also 

have the requisite language and cognitive abilities to organize ideas and express 

them appropriately using the rules of grammar and syntax. 

Occupational therapy has unique expertise in the areas that affect reading and 

writing. Children’s visual and writing skills are dependent on having a stable base 

of postural or physical support from which their eyes and hands can do the work 

of reading and writing. It is difficult, for example, for a child to participate in a 

reading activity on the chalkboard when they can not keep their head/trunk up for 

long periods of time, or if they are easily visually distracted and can not ‘‘tune out’’ 

a visually ‘‘busy’’ classroom. Children with handwriting and visual-perception difficulties often find a way to not perform or complete reading and written assignments. Occupational therapy is an important service that can help meet the needs 

of children with reading and writing difficulties. 

AOTA believes that occupational therapy is an underutilized service that can 

meet and address children’s learning, social and behavioral needs. As a result, many 

children who could benefit from occupational therapy do not receive services. This 

limited access affects both IDEA-eligible students as well as students in general 

education. Often this limitation is due to a lack of understanding about how occupational therapy can help or because of perceptions that therapists only address 

‘‘motor’’ issues. Occupational therapy training is comprehensive and covers physical, 

psychological, social and pedagogical aspects of human occupation. Occupational 

therapy’s understanding of human performance, or ‘‘do-ing,’’ can be invaluable in 

helping parents and school staff to understand the relationship between the physical 

and psychosocial and how these factors support or impede children’s progress. 

What is Occupational Therapy? 

Occupational therapy is a vital health and rehabilitation service, designed to help 

individuals participate in important every day activities, or occupations. Occupational therapy services address underlying performance skills, including motor, process, communication and interaction skills to assist in the correction and prevention 

of conditions that limit an individual from fully participating in life. For children 

with disabling conditions and other educational needs, occupational therapy can 

help them to develop needed skills within the context of important learning experiences and to perform necessary daily activities such as feeding or dressing themselves and help them get along with their peers at school. Occupational therapy 

services can help identify strategies for teachers and families to use to facilitate appropriate reading and writing development. 

Occupational therapy practitioners have the unique training to assist individuals 

to engage in daily life activities throughout the lifespan and across home, school, 

work and play environments. Services may be provided during only one period of 

the child’s life or at several different points when the child is having difficulties engaging in his or her daily school occupations, such as when they are faced with more 

complex demands in the classroom resulting from increased emphasis and reliance 

on written output. Occupational therapy services may be provided in the family’s 

home; at school; and in the community, such as day care and preschool programs, 

private clinics, and vocational programs. 

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Occupational therapy evaluation determines whether an individual would benefit 

from intervention. The evaluation looks at the individual’s strengths and needs with 

respect to daily life function in school, home and community life, focusing on the 

relationship between the client and their performance abilities, the demands of the 

activity, and the physical and social contexts in which the activity is performed. The 

findings of the occupational therapy evaluation inform the team of the need for 

intervention. Occupational therapy practitioners use purposeful activities to help individuals bridge the gap between capacity to learn and full and successful engagement in work, play, and leisure activities. 

For example, occupational therapy for infants and young children may include remediation of problem areas, development of compensatory strategies, enhancement 

of strengths, and creation of environments that provide opportunities for developmentally appropriate play and learning experiences. Services for the school-aged 

child are intended to help them be successful in school. Intervention strategies may 

focus on improving the child’s information-processing ability, academic skill development such as handwriting, and ability to function in the school environment. For 

adolescents, the occupational therapy intervention focus is on preparation for occupational choice, improving social and work skills, and learning how to create or alter 

the environment to maximize their productivity. 

Occupational therapy is a health and rehabilitation service covered by private 

health insurance, Medicare, Medicaid, workers’ compensation, vocational programs, 

behavioral health programs, early intervention programs, and education programs. 

AOTA represents 30,000 occupational therapists, occupational therapy assistants, 

and students. We thank you, once again, for the opportunity to submit our comments for the record. 

Statement of the National Center for Learning Disabilities, Inc. 

Mr. Chairman, on behalf of the National Center for Learning Disabilities (NCLD), 

I would like to submit testimony to the record in conjunction with the Full Committee hearing held on March 3, 2004. NCLD is a not-for-profit organization founded in 1977 that works to increase opportunities and improve outcomes for children 

and adults with learning disabilities (LD) by providing accurate information to the 

public, developing and disseminating innovative educational programs, and advocating for more effective policies and legislation to help individuals with LD. 

First, I would like to thank you and Representatives Castle, Miller, Woolsey, and 

Kildee for your support of The No Child Left Behind Act of 2001 (NCLB), which was 

signed into law by President Bush in January of 2002. Your unwavering bipartisan 

commitment to ensure that states and school districts intensify their efforts to improve the academic achievement of the nation’s traditionally at-risk groups of public 

school students is historic and is deeply appreciated by parents nationwide. By protecting NCLB’s new provisions for assessment and accountability that focus increased levels of attention on under-performing groups of students to help close the 

achievement gap for students who have long lagged behind, you are ensuring millions of students will finally be seen through the lens that allows us to really know 

whether they are receiving a quality education and making expected gains. 

For the nation’s 2.9 million students with identified learning disabilities (LD) currently receiving special education services under the Individuals with Disabilities 

Education Act (IDEA), the challenging new provisions of NCLB create expanded opportunities for improved academic achievement. As the IDEA definition of specific 

learning disabilities indicates, these students have neurological differences that are 

not primarily the result of mental retardation, emotional disturbance, or of environmental, cultural or economic disadvantage. Additionally, IDEA eligibility determination criteria require that students should not be determined to be a child with a 

specific learning disability if the determinant factor is lack of instruction in reading 

or math or limited English proficiency. 

These definitional and qualifying criteria establish students with LD as competent 

to participate in general education curricula and achieve at a proficient level when 

provided with high quality instruction by trained professionals as well as appropriate accommodations. Thus, students identified and served under the IDEA category of Specific Learning Disabilities must be provided full participation and equal 

accountability in NCLB. 

These additional findings serve to further support our position for full participation and accountability: 

• The Twenty-fourth Annual Report to Congress on the implementation of the 

IDEA indicates that 45 percent of students in the SLD category spend less than 

52

20 percent of their instructional time in special education, leaving the majority 

of their instruction in the hands of general education teachers. 

• The majority of students served in the SLD category have their primary academic deficit in the area of reading, the same academic area at the core of 

NCLB improvement provisions. 

• Nearly 30 percent of students with learning disabilities drop out of school (compared to 11% of the general student population). Two-thirds of high school graduates with learning disabilities were rated entirely unqualified to enter a fouryear college, compared to 37% of non-disabled graduates. 

• The 2003 National Longitudinal Transition Study–2 reports that grades given 

to secondary school students with disabilities have been found to have no correlation to real academic functioning, misleading parents about how their child 

is actually performing. 

• Most students with learning disabilities spend the majority of their instructional time in general education classes. However, only 60 percent of students 

with disabilities in general education academic classes have teachers who receive any information about the needs of those students and only about half 

have teachers who receive any input or consultation from a special educator or 

other staff about how to meet those needs. 

• Despite having their disabilities identified earlier (from 7.3 years of age in 1987 

to 6.5 years of age in 2001) two-thirds of secondary students with learning disabilities are reading 3 or more grade levels behind. Twenty percent are reading 

5 or more grade levels behind. 

• A 2002 survey conducted by Public Agenda reports that 69 percent of parents 

of students with disabilities said many children could avoid special education 

if they were given help earlier. 

NCLD recommends that the Committee consider the following as you make the 

critically important legislative decisions and seek to influence regulation and implementation of NCLB: 

Access to the General Curriculum: Students with LD must have access to the general education curriculum, which must be aligned with the standards and assessments used to implement NCLB requirements, with appropriate accommodations. 

Teachers must be allowed the time and provided the resources to learn the new 

curriculum and adjust their pedagogy, and teachers must use those instructional 

practices that have been proven to be effective in improving outcomes for students 

with LD. 

Schools should effectively employ technology to enhance learning and increase 

student achievement by maximizing the use of universally designed technologies 

and assistive technology devices and services in the classroom. 

High–Quality Teachers and Paraprofessionals: Students with LD must receive instruction from highly qualified personnel prepared in current, validated practices 

tailored to their individual needs. 

Unfortunately, studies have shown that students with learning disabilities are 

often the victims of watered down curriculum and teaching approaches that are neither individualized nor proven to be effective. 

Teachers must be given access to ongoing professional development and should be 

prepared to use ongoing progress monitoring using curriculum-based measurement 

in order to accurately identify student progress and tailor instruction accordingly. 

Regular and special educators must work collaboratively as part of a coherent system in planning and delivering instruction. 

Conditions of Teaching: Teachers responsible for delivery of instruction to students with LD, both general and special education, must use validated, inclusive 

teaching practices including: 

• instructional configurations that allow teachers to implement validated teaching 

practices such as modeling, scaffolding, elaborated feedback, etc 

• coordinated instruction of skills and strategies across teachers, grades and 

schools 

• alignment of instructional methods with curriculum demands 

• grouping practices that reflect optimal teacher/student ratios. 

Access to Accommodations: Students with LD must be provided accommodations 

to ensure their participation in State assessments. 

Decisions regarding accommodations must be made by the student’s IEP team or 

placement team and should be made on the basis of individual student needs, not 

on the basis of labels. 

The accommodations that students receive on State assessments should be similar 

to those routinely provided during classroom assessment. Neither the State Education Agency (SEA) nor the Local Education Agency (LEA) can limit the authority 

53

of the IEP team to select individual accommodations/modifications needed by a student with LD to participate in State assessments. 

Monitoring for compliance of these requirements should become part of the ongoing federal IDEA monitoring system. 

Appropriate Use of Test Results: Results of tests used to hold schools accountable 

for student achievement as required by NCLB should not be used solely to make 

high stakes decisions, such as grade retention and graduation, about students with 

LD. 

Since grade retention has been shown to contribute significantly to school dropout, 

administrators should ensure the use of multiple sources of information (such as 

coursework and portfolio assessments) about student performance for making decisions on such matters. This is particularly important given that ‘‘out-of-level’’ testing 

is not an acceptable means for meeting either the assessment or accountability requirements of NCLB for IDEA eligible students. 

Fair Treatment of Subgroups: NCLB’s requirements for the disaggregation of assessment results for several subgroups of students, including students with disabilities, are designed to enhance school accountability for at-risk populations. However, 

the state level flexibility regarding the determination of minimum group size has 

led to a significant range of subgroup size. One survey of subgroup size across 

States found that the required minimum number ranges from 3 to 200, with 10 

being the most common. 

The U.S. Dept. of Education should closely review the results of such a vast range 

in subgroup minimums with particular attention to those States that have established relatively high minimums. While the purpose for subgroup minimums—to ensure statistically reliable results and protect student identity—are appropriate, 

states with artificially high subgroup minimums may escape the very accountability 

that this provision was intended to promote. 

Parent Involvement: NCLB creates an authority for funding of Parental Assistance Information Centers and Local Family Information Centers (LFICs) to provide 

training, information, and support to parents, and to individuals and organizations 

that work with parents, to implement parental involvement strategies that lead to 

improvements in student academic achievement. The information and training provided by these centers is critical to prepare parents to hold schools accountable for 

closing the achievement gap. These new centers should be monitored for their effectiveness in providing information related specifically to students with disabilities, 

including learning disabilities. 

Full Funding of NCLB and IDEA: Policy-makers need to appropriate the authorized funding levels for both NCLB and IDEA. States and school districts need these 

additional funds to accomplish the aggressive improvements required by NCLB. 

Without adequate funding targeted to effective practices, schools might be pressured 

to make decisions that will harm students with learning disabilities, such as limiting access to special education eligibility. 

Monitoring NCLB Implementation: The U.S. Department of Education should undertake aggressive monitoring activities to ensure full participation and equal accountability for students with disabilities, including learning disabilities, in NCLB. 

Additionally, studies should immediately be undertaken to track any unintended 

consequences of implementation that might adversely impact students with learning 

disabilities. Such attention can help to determine the need for additional guidance 

and technical assistance and minimize any negative impact resulting from implementation (e.g. reduced access to special education eligibility, lack of access to appropriate accommodation and to general curricula aligned with state standards). 

The National Center for Learning Disabilities believes that the new provisions of 

NCLB provide substantial opportunities for students with learning disabilities. 

However, given the serious sanctions schools face for not delivering sufficient academic progress, NCLD also recognizes the possibility that students with learning 

disabilities and their parents might be subjected to numerous obstacles. Many of 

these obstacles have been mentioned here, while others will only be thoroughly understood and identified as NCLB implementation moves forward. 

Mr. Chairman, on behalf of the millions of students and their families we represent at NCLD, I thank you for this opportunity to provide written testimony to 

the record on this important subject. We stand ready to assist you in any way as 

the discussion continues in Congress. 

James H. Wendorf 

Executive Director 

54

Statement of Rosemary King Johnston, Member, National Education 

Association 

Good Morning Chairman Boehner, Mr. Miller, Mr. Van Hollen, and distinguished 

members of the Committee. My name is Rosemary King Johnston and I am a proud 

veteran of nearly 30 years in the classroom. I taught my first class of children in 

1968 - at a time we refer to as before the law. I taught primary age students with 

disabilities in Massachusetts for a few years and most recently taught in Harford 

County, Maryland for 18 years. I am a member of the National Education Association’s IDEA Cadre—a group of 27 education practitioners from around the country 

that prepares and delivers professional development to our members specifically 

about instructing students with disabilities. I am also the parent of an adult with 

a disability and actively involved in decision making for a relative, who has multiple 

disabilities, including a significant cognitive disability. These experiences, both personal and professional, have given me a familiarity with the issues affecting educators, parents, and students with disabilities in the classroom and the community. 

As this Committee is aware, the amendments to IDEA in 1997 resulted in about 

6.5 million students with disabilities having access to the general curriculum. This 

corrected a practice that was happening all too often in our nation’s schools - that 

students with disabilities were being taught in segregated settings, regardless of 

their individual capabilities to be included in general education classrooms. As a 

parent, an educator, and an advocate, I absolutely agree with the principles embodied in No Child Left Behind that move us beyond IDEA 97 and begin to focus 

on how we include students, including students with disabilities, in the same accountability system. 

Please allow me the opportunity to commend the Department of Education for its 

final reg lation regarding the assessment of students with significant cognitive disabilities under No Child Left Behind. As I understand it, the final regulation allows 

students with disabilities to be assessed in four different ways and clarifies that the 

student’s IEP team makes the determination regarding the most appropriate assessment instrument for the student. While this is a step in the right direction, there 

are additional challenges that must be addressed at the school and classroom level. 

The first is reaching all educators with information explaining this final regulation. This will be no small feat, as many states have been slow to implement some 

of the assessment requirements of IDEA 97, let alone the requirements of NCLB 

for students with disabilities. Many states have still not developed alternate assessments based upon the state content standards. There is little professional development available to teachers about how to write an effective IEP that is aligned with 

state content standards and how to include students with disabilities in standardized tests, particularly if the child needs to be assessed in an alternate manner than 

the state’s standardized tests. As a cadre member, I have conducted many workshops for my colleagues, but this requires a national, state, and local partnership 

to provide consistent and ongoing technical assistance and professional development. 

To meet part of this challenge, I’d like to suggest to the Members of this Committee something that the Department of Education could do to make it easier for 

classroom teachers and support professionals to understand the testing regulation. 

The Department could issue a desktop guide for educators which looks at some sample content standards for a particular grade level and illustrates what a regular assessment of those standards looks like, what an alternate assessment based upon 

those standards looks like, and what an alternate assessment based upon alternate 

standards looks like. The desktop guide should also include an explanation of the 

array of accommodations that should be available for students with disabilities, 

based upon their individualized education program (IEP). 

The second challenge we face is that many standardized tests do not include accommodations in their standard protocol, so any child that takes the regular assessment with an accommodation might not have their scores ‘‘counted’’ in a school’s 

AYP measurement. For example, in many states, students who are blind had the 

state test read aloud to them. Their scores were invalidated because the test-maker 

did not include this as a protocol of the test administration. Accordingly, their scores 

whether they were 95, 100, or 75 were counted as zeroes in their school’s AYP calculation. 

I have no doubt that many schools, prior to the Department’s final regulation, 

didn’t have the opportunity to ‘‘count’’ scores like these in their initial AYP lists 

when they identified schools in need of improvement. Therefore, I’d like to suggest 

that you urge the Department of Education to work with states to ensure that the 

AYP listings are corrected retrospectively in accordance with this new final regulaVerDate 0ct 09 2002 11:04 Oct 14, 2004 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 H:\DOCS\92309 EDUWK PsN: NNIXON
55

tion. Just as we seek to have students with disabilities included in the assessment 

programs, so should those students’ scores be included in their school’s calculations. 

I’d also like to suggest that this Committee urge the Department of Education to 

convene a meeting of education stakeholders and national test developers to discuss 

what assessments are currently valid and reliable for students with various types 

of disabilities. The goal of this discussion should be to encourage test makers to update their protocols and expand their test offerings, so that the assessment options 

in the final regulation are a reality, not just a hope. 

Finally, as the members of this Committee are aware, students with disabilities 

are a very diverse population, some with cognitive disabilities, some with physical 

disabilities, and some with behavioral issues. There are some children who are not 

significantly cognitively disabled, but who are currently performing well below grade 

level. The challenge with NCLB that is not addressed by the Department’s final regulation is how to bring these students up to grade level in a way that is not punitive 

and does not damage the morale and reform efforts currently under way in many 

of our schools. NCLB gives no credit to a school that raises the level of achievement 

for this group of students by several grade levels, if that level doesn’t meet the 

state’s overall numerical target for all children. For example, what if a school improves the academic performance of a group of children-whether disabled or not 

from ‘‘below basic’’ to ‘‘basic?’’ This school may still be labeled in need of improvement, which may inadvertently stigmatize those students who didn’t make the AYP 

target. Shouldn’t the school instead be required to develop improvement plans for 

just the subgroups or individual students who are not proficient? 

And for students with disabilities, why not incorporate a growth model into their 

IEPs that requires the student begin to close his own achievement gap, that is, his 

current performance level with grade level expectations. The House’s IDEA reauthorization bill (H.R. 1350) will require IEPs to be aligned with NCLB requirements, so incorporating a growth model into the IEP will require academic progress, 

but at a pace that is appropriate for the individual student. This individualized approach is the cornerstone of IDEA and can be made to work together with NCLB. 

In closing, I’d like to reiterate what I and my colleagues of the National Education 

Association believe. We believe in the goals of No Child Left Behind. We believe in 

holding schools accountable for improving results for all groups of children. And we 

believe in providing parents and communities more information about how their 

schools and all of their students are doing academically. But in order to make NCLB 

work for all students—and especially for students with disabilities—we must be able 

to look at growth in student performance over time, not just a snapshot from a test 

given on one day of the year. Each of our students deserves the most advanced and 

accurate determination of their achievement levels and I am concerned that the current interpretation of NCLB limits our schools’ ability to document the real, every 

day progress made by students. Our students are more than just a test score and 

so are our schools. A few common sense changes to NCLB will not weaken accountability; they will make accountability work for every child. That’s the goal of every 

educator: great public schools for every child.

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