National Council on Disability

February 7, 2018

IDEA Series

Every Student Succeeds Act and 

Students with Disabilities
National Council on Disability (NCD)

1331 F Street NW, Suite 850

Washington, DC 20004

(IDEA Series) Every Student Succeeds Act and Students with Disabilities

National Council on Disability, February 7, 2018 

Celebrating 30 years as an independent federal agency

This report is also available in alternative formats. Please visit the National Council on Disability 

(NCD) website (www.ncd.gov) or contact NCD to request an alternative format using the following 

information:

ncd@ncd.gov Email

202-272-2004 Voice

202-272-2022 Fax

The views contained in this report do not necessarily represent those of the Administration, as this and 

all NCD documents are not subject to the A-19 Executive Branch review process.
Letter of Transmittal

February 7, 2018

President Donald J. Trump

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit this report titled 

Every Student Succeeds Act and Students with Disabilities. This report is part of a five-report series 

on the Individuals with Disabilities Education Act (IDEA) that examines the Every Student Succeeds 

Act (ESSA)’s amendments to IDEA, explains their likely impact on students with disabilities as 

ESSA implementation moves forward, and provides recommendations.

As you know, the right of students with disabilities to receive a free and appropriate public 

education in the least restrictive environment is solidly rooted in the guarantee of equal protection 

under the law granted to all citizens under the Constitution. In 2015, ESSA was enacted to further 

advance educational equity and serve the interests of all students, and contains several key 

provisions that align with IDEA, such as Challenging State Academic Standards, Student Academic 

Assessments, and State Accountability Systems. Under ESSA, parents of students with disabilities 

should have access to clear information that assists them in knowing how their children are doing 

in school compared to the state standards, assurance that their children are included in state 

accountability systems as all other students, and that their children have an equitable shot at 

getting the coveted prize of high school: a “regular” diploma.

To understand better how students with disabilities may be impacted by ESSA, the research for this 

focused on how ESSA addresses students with disabilities through standards, assessment, and 

accountability, and details the findings.

The Council stands ready to assist the Administration in ensuring the right to a free and appropriate 

public education for students with disabilities as set forth in IDEA.

Respectfully,

Clyde E. Terry

Chairperson

National Council on Disability

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families.

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of 

the U.S. House of Representatives.)
2 National Council on Disability
National Council on Disability Members and Staff

Members

Clyde E. Terry, Chairperson

Benro T. Ogunyipe, Vice Chairperson

Billy W. Altom

Rabia Belt

James T. Brett

Bob Brown

Daniel M. Gade

Wendy S. Harbour

Neil Romano

Staff

Vacant, Executive Director

Joan M. Durocher, General Counsel & Director of Policy

Amy Nicholas, Attorney Advisor

Amged Soliman, Attorney Advisor

Ana Torres-Davis, Attorney Advisor

Anne Sommers, Director of Legislative Affairs & Outreach

Phoebe Ball, Legislative Affairs Specialist

Lisa Grubb, Director of Operations and Administration

Stacey S. Brown, Staff Assistant

Keith Woods, Financial Management Analyst

Every Student Succeeds Act and Students with Disabilities 3
4 National Council on Disability
Acknowledgments

The National Council on Disability thanks Selene Almazan, Denise Marshall, and Melina Latona of 

the Council of Parent Attorneys and Advocates; Laura A. Schifter of the Harvard Graduate School of 

Education; and Laura W. Kaloi of the McKeon Group, for the research conducted in developing this 

report.

Every Student Succeeds Act and Students with Disabilities 5
6 National Council on Disability
Contents

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

List of Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Inclusion of Students with Disabilities in Standards-Based Reform . .  1

The 1% Rule and the 2% Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Benefits of Inclusion in Standards-Based Reform . . . . . . . . . . . . . . . .  1

Mechanisms of IDEA and ESSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Research Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Qualitative Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Policy Analysis and Literature Review . . . . . . . . . . . . . . . . . . . . . . . . .  1

Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Chapter 1: ESSA Provisions Specific to Students with Disabilities . . . . . . . . . . . . . . . . 19

Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Alternate Assessment Aligned with Alternate Achievement 

Standards (AA-AAS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Locally-Selected Assessment and Computer 

Adaptive Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

State Accountability System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Fifth Indicator or Additional Indicator . . . . . . . . . . . . . . . . . . . . . . . . . .  2

School Improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

State Diploma Options and Students with Disabilities . . . . . . . . . . . . . . .  2

Disciplinary Practices, Including the Use of Seclusion and Restraint . . . .  2

Professional Learning and Curricular Supports . . . . . . . . . . . . . . . . . . . . .  2

Every Student Succeeds Act and Students with Disabilities 7
Chapter 2: Other Policy Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Federal Funding of ESSA and School Choice . . . . . . . . . . . . . . . . . . . . . . .  2

Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Private School Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Regulatory Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

State Planning Process: Accountability for Students with Disabilities . . .  3

Chapter 3: Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Chapter 4: Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

8 National Council on Disability
I

n the past 20 years, students with disabilities 

have made substantial educational progress—

academic test scores, high school graduation 

rates, and college-going rates have all increased. 

This progress, in part, is related to the inclusion 

of students with disabilities in standards-based 

reform. With standards-based reform, educators 

must pay attention to what all students should be 

able to know and do for the grade level assigned 

and address gaps in academic performance, 

including that of students with disabilities. 

In 2015, Congress passed the Every Student 

Succeeds Act (ESSA), establishing the current 

federal parameters for standards-based reform.

To understand better how students with 

disabilities will be impacted by ESSA, the National 

Council on Disability (NCD) commissioned a 

report to study this in part by asking:

■ How do policies in ESSA impact students 

with disabilities? Specifically, how does 

ESSA address students with disabilities 

through standards, assessment, and 

accountability?

To address these questions, NCD conducted 

a mixed methods study gathering relevant policy, 

qualitative, and quantitative information. In 

particular, forums convened to gather parent and 

student perspectives and interviewed several 

local and state administrators and researchers.

This report finds that ESSA maintains key 

provisions to ensure the inclusion of students 

with disabilities in accountability systems. 

However, ESSA also affords states greater 

flexibility in how accountability systems 

are established. ESSA includes additional 

assessment provisions to utilize effectively 

accommodations for students with disabilities 

and additional provisions to better support 

students with the most significant cognitive 

disabilities. Finally, to improve opportunities for 

student learning, ESSA requires states to engage 

stakeholders in the state planning process and 

address school conditions for student learning 

and the overuse of harsh disciplinary tactics, 

including seclusion and restraint.

To ensure ESSA implementation best supports 

the needs of students with disabilities, NCD 

recommends that Department of Education 

officials, peer reviewers, and states guarantee 

state plans by:

■ Maintaining inclusion of all students with 

disabilities in accountability systems

■ Supporting state-designed general and 

alternate assessment systems that 

accurately measure the performance 

of students with disabilities through 

accommodations and embedding principles 

of universal design for learning (UDL)

Executive Summary

Every Student Succeeds Act and Students with Disabilities 9
■ Effectively supporting students with the 

most significant cognitive disabilities to 

increase access to the general education 

curriculum

■ Promoting the use of evidence-based 

practices to provide intervention and 

support to schools and districts identified for 

improvement

■ Creating plans to reduce the use of harsh 

discipline practices, especially seclusion and 

restraint

■ Including meaningful stakeholder 

engagement in all aspects of ESSA planning 

and implementation

10 National Council on Disability
List of Acronyms

AAS alternate academic achievement standards

AA-AAS alternate assessment aligned with alternate academic achievement standards

AA-MAS alternate assessments on modified achievement standards

ADA Americans with Disabilities Act

COPAA Council of Parent Attorneys and Advocates

CRA Congressional Review Act

EIR Education Innovation and Research

EL English learners

ESEA Elementary and Secondary Education Act

ESSA Every Student Succeeds Act

FOCUS Furthering Options for Children to Unlock Success

IDEA Individuals with Disabilities Education Act

IEP Individualized Education Program

MTSS Multi-Tiered System of Supports

NCD National Council on Disability

NCLB No Child Left Behind

PBIS Positive Behavior Interventions and Support

RRTF Regulatory Reform Task Force

SSIP State Systemic Improvement Plan

UDL universal design for learning

Every Student Succeeds Act and Students with Disabilities 11
The goal of ESSA “is to provide all children 

significant opportunity to receive a fair, 

equitable, and high-quality education, and 

to close educational achievement gaps.”

12 National Council on Disability
On December 10, 2015, President Obama 

signed the Every Student Succeeds Act 

(ESSA)1 into law. ESSA reauthorized the 

Elementary and Secondary Education Act (ESEA), 

replacing the previous reauthorization, the No 

Child Left Behind (NCLB) Act. In a departure from 

NCLB, ESSA returns considerable authority to 

states and school districts, but it maintains the 

core tenants of standards-based reform.

The standards-based reform movement is 

based largely on the theory that establishing a 

system of standards, assessment, accountability, 

and school improvement 

will increase student 

achievement.2 Academic 

content standards 

represent a consensus 

of what students should 

know and be able to 

do. Assessments measure achievement against 

the standards to determine if students are 

meeting them. Accountability systems are tied to 

performance on those assessments to determine 

how effectively schools are teaching students to 

the standards. Finally, schools underperforming 

in the accountability system are required to take 

action to improve student academic outcomes.

These principles of standards, assessment, 

accountability, and school improvement have 

been included in the past three iterations of the 

ESEA (Improving America’s Schools Act of 1994, 

NCLB, and now ESSA).

Background and Context

Inclusion of Students with Disabilities 

in Standards-Based Reform

Prior to NCLB, states had developed standardsbased accountability systems, yet students with 

disabilities were excluded systematically from 

participating in the assessments.3 This exclusion 

of students with disabilities was problematic 

in that testing results provided inaccurate 

information about school 

performance, referrals 

to special education 

increased, and students 

with disabilities were 

subjected to lower 

expectations.4

In response, the 1997 reauthorization of 

the Individuals with Disabilities Education Act 

(IDEA) required that states include students 

with disabilities in state assessment systems, 

including through the development of alternate 

assessments.5 Four years later, NCLB went 

further by requiring (1) students with disabilities 

be held to the same expectations as students 

without disabilities, (2) schools publicly report 

the performance of students with disabilities, 

and (3) schools be held accountable for their 

Introduction

ESSA returns considerable authority 

to states and school districts, but 

it maintains the core tenants of 

standards-based reform

Every Student Succeeds Act and Students with Disabilities 13
performance just as any other subgroup of 

students. As a result, parents and educators now 

had tangible information about how students 

with disabilities were performing in reading, 

math, and high school graduation as compared 

to their peers. Also, the academic and graduation 

outcomes of students with disabilities were no 

longer hidden and schools and districts were 

compelled to use the data to provide targeted 

intervention to help improve the outcomes of 

students.

The 1% Rule and the 2% Rule

After the passage of NCLB, the increased 

transparency and strict school improvement 

requirements tied to 

academic performance 

resulted in a backlash 

to accountability.6 Some 

states were criticized for 

“gaming the system” 

through mechanisms 

such as establishing low standards, low 

proficiency targets, and high N sizes7 (N size

refers to the minimum number of students 

needed to form a student subgroup for federal 

reporting and accountability purposes).8 Other 

stakeholders pushed for greater flexibility in 

the law’s requirements so that schools could 

receive higher ratings in state accountability 

systems.

To increase flexibility, the Department of 

Education issued two regulations directly 

impacting students with disabilities that became 

known as the “1% rule” and the “2% rule.” 

In 2003, the Department of Education issued 

regulations permitting the use of alternate 

assessments aligned to alternate academic 

achievement standards (AAS) for students with 

the most significant cognitive disabilities known 

as the “1% rule.”9

The new 1% rule permitted states and 

districts to count the proficient and advanced 

scores of students with disabilities assessed on 

an alternate assessment aligned with alternate 

academic achievement standards (AA-AAS) as 

proficient on the regular assessment (the regular 

assessment is the test all other students take, 

aligned to the regular state standards). Therefore, 

this allowed states to count students taking an 

alternate assessment as proficient on the general 

assessment. States could count the scores of 

students taking AA-AAS as proficient as long 

as the number of student scores counted did 

not exceed 1 percent of 

all students assessed. 

Understanding the 

required use of 1 percent 

as a cap on the scores 

that could be used of all 

students in the policy 

can be confusing because in fact, the policy 

only applied to students with disabilities not to 

the general student population. To help clarify, 

1 percent of all students in the general population 

is approximately 10 percent of all students with 

disabilities, which means states could include 

up to 10 percent of the scores of students with 

disabilities taking AA-AAS as proficient when 

calculating the proficiency of students with 

disabilities.10

After the development of the 1% rule, all 

states developed AA-AAS. In the 2013–2014 

school year, states varied in their use of AA-AAS 

with participation rates ranging from about 0.5 

to 2 percent of all students.11 In considering 

the impact of the policy, stakeholders raised 

concerns that some states had established 

[T]he academic and graduation 

outcomes of students with 

disabilities were no longer 

hidden 

14 National Council on Disability
policies preventing students taking AA-AAS from 

receiving a regular high school diploma12 and 

that participation on AA-AAS corresponded with 

segregated placements for academic subjects.13

In response to requests for greater 

flexibility to include students with disabilities in 

accountability systems, in 2007, the Department 

of Education released the “2% rule,” permitting 

alternate assessments against modified

academic achievement standards. The 2% rule 

allowed districts and states to count students 

with disabilities who were “unlikely to achieve 

grade-level proficiency” as proficient if they 

scored proficient on alternate assessments 

on modified achievement standards (AA-MAS) 

as long as students 

included as proficient 

did not exceed 2% of 

all students assessed 

(2% translates to 

approximately 20% 

of students with 

disabilities).14

Disability advocates raised concerns that the 

implementation of the 2% rule inappropriately 

lowered expectations for students with 

disabilities and created a loophole to remove 

students with disabilities from the general 

assessment and from accountability systems.15

To justify the regulation, the Department of 

Education pointed to research suggesting 

that approximately 1.8 to 2.5 percent of all 

students were unable to reach grade-level 

reading standards in a given year.16 Importantly, 

in studying the issue further, researchers 

discovered that persistently low-performing 

students were both students with disabilities 

and students without disabilities.17 The 2% rule 

permitting lower expectations, however, applied 

only to students eligible for special education 

services.

Implementation of the 2% rule supported 

advocates’ concerns about creating a problematic 

loophole. In total, 16 states developed AA-MAS 

to implement the 2% rule. In the 2011–2012 

school year, participation on AA-MAS varied 

across the states—11.7 to 52.9 percent of 

students with disabilities.18 Researchers found 

that some students were given the AA-MAS even 

when they had scored proficient on the regular 

assessment in the previous year.19 Researchers 

also found African American students with 

disabilities were much more likely to be assessed 

against these easier assessments.20 Additionally, 

in California, some 

districts assessed 

more than 70 percent 

of their students with 

disabilities on AA-MAS. 

Acknowledging the 

problems associated with 

the 2% rule, in 2013, 

the Department of Education initiated steps to 

eliminate it.21 In August 2015, a final rule was 

published that prohibited the 2% rule. To justify 

the decision, the Department of Education 

stated:

Nearly all states have developed and are 

administering new high-quality general 

assessments that are valid and reliable 

and measure students with disabilities’ 

knowledge and skills against college- and 

career-ready standards. Including students 

with disabilities in more accessible general 

assessments aligned to college- and 

career-ready standards promotes high 

expectations for students with disabilities, 

Researchers found that some 

students were given the AA-MAS 

even when they had scored 

proficient on the regular assessment 

in the previous year

Every Student Succeeds Act and Students with Disabilities 15
ensures that they will have access to gradelevel content, and supports high-quality 

instruction designed to enable students 

with disabilities to be involved in, and 

make progress in, the general education 

curriculum—that is, the same curriculum as 

for nondisabled students.22

Benefits of Inclusion in Standards-Based 

Reform

Despite the potential loopholes to accountability, 

since the passage of NCLB, studies have 

documented the numerous benefits of including 

students with disabilities in the ESEA. For 

instance, in 2003, 33.6 percent of students with 

disabilities who left special education dropped 

out of school,23 but by 2014, the dropout rate 

decreased to 18.5 

percent.24 With the 

increased transparency 

and accountability for 

the performance of 

students with disabilities, 

previous National Council 

on Disability (NCD) 

reports highlighted that 

students with disabilities were performing better 

academically and graduating high school at 

higher rates.25 NCD reports also acknowledged 

stakeholders attributing the positive impact 

to the fact that “students with disabilities 

were no longer ignored,” and that educators 

were “becoming aware of what students with 

disabilities are capable of achieving if they are 

held to high standards and expectations.”26

The civil rights and disability communities 

have long held that the ESEA provides some 

important protections for historically underserved 

student groups, including students with 

disabilities. With a joint interest in assuring 

all students have access to a quality public 

education and exit high school prepared for 

success in college or career, the business, 

civil rights, and disability community worked 

collaboratively to advocate for these principles in 

ESSA reauthorization.27 Specifically, the coalition 

advocated for maintaining strong accountability 

systems, as those systems set expectations for 

what it means to be a good school,28 maintaining 

a strong focus on subgroup performance, and 

safeguarding access to the general education 

curriculum for all learners.

Mechanisms of IDEA and ESSA

The underlying mechanisms of ESSA and IDEA 

have caused some to argue that the laws conflict 

with one another.29

ESSA’s mechanism is a 

“top-down” approach 

that requires states to 

establish consistent 

standards, assessment, 

and an accountability 

system accounting for 

the performance for all students, disaggregated30

by student subgroup; whereas IDEA is a 

“bottom-up” approach that focuses on serving 

the individual student through the Individualized 

Education Program (IEP). Despite the concerns 

about a potential conflict in these approaches, 

both Congress and the Department of Education 

saw the two laws as complementary. In fact, in 

2005 the Department noted:

Both laws have the same goal of improving 

academic achievement through high 

expectations and high-quality education 

programs. NCLB works to achieve that 

[I]n 2003, 33.6 percent of students

with disabilities who left special 

education dropped out of school, 

but by 2014, the dropout rate 

decreased to 18.5 percen

16 National Council on Disability
goal by focusing on school accountability, 

teacher quality, parental involvement 

through access to information and choices 

about their children’s education, and the 

use of evidence-based instruction. IDEA 

complements those efforts by focusing 

specifically on how best to help students 

with disabilities meet academic goals.31

A key aspect of IDEA is to ensure the 

student has access to and makes progress in 

the general education curriculum.32 In November 

2015, the Department of Education issued a 

Dear Colleague Letter to define the general 

education curriculum further aligning NCLB and 

IDEA.33 Specifically, the Department indicated 

that because of NCLB’s requirement(s), the 

general education curriculum should be aligned 

with the state academic content standards for 

the grade in which the student is enrolled. As 

such, a student’s IEP should focus on supporting 

students in providing access to making progress 

with the state academic standards.

As Congress completed the bipartisan 

passage of ESSA in 2015, they again upheld and 

updated provisions of ESSA in alignment with 

IDEA and acknowledged that both work together 

to help support the improvement of outcomes 

for students with disabilities. Because of this, it 

is critical to understand how the policies in ESSA 

can impact students with disabilities. Therefore, in 

this report, we consider the following questions.

Research Questions

■ How do policies in ESSA impact students 

with disabilities? Specifically, how does 

ESSA address students with disabilities 

through standards, assessment, and 

accountability?

■ How do the policies within ESSA amend or 

align with IDEA?

■ To the extent that state plans or planning 

processes are available, how have states 

addressed students with disabilities and 

their families in their plans or planning 

process?

Research Methods

To address these questions, the NCD research 

team conducted a mixed-methods study 

gathering stakeholder perspectives, as well as 

policy and quantitative information.

Qualitative Analysis

To gather stakeholder perspectives, the 

NCD research team conducted interviews 

and held five forums, four regional and 

one national. Specifically, the NCD team 

conducted 20 semistructured interviews 

with key stakeholders, including Department 

Research Questions Addressed 

in Report

■ How do policies in ESSA impact students 

with disabilities? Specifically, how does ESSA 

address students with disabilities through 

standards, assessment, and accountability? 

■ How do the policies within ESSA amend or 

align with IDEA? 

■ To the extent that state plans or planning 

processes are available, how have states 

addressed students with disabilities and their 

families in their plans or planning process?

Every Student Succeeds Act and Students with Disabilities 17
of Education officials, state and local 

administrators, and representatives from 

disability rights organizations, professional 

associations, and parent organizations to 

determine perspectives on the potential impact 

of ESSA on students with disabilities.

In the second phase of research, we gathered 

perspectives from parents and students, through 

four regional forums in California, Illinois, Texas, 

and Virginia. NCD recruited participants through 

the Council of Parent Attorneys and Advocates 

(COPAA)’s member network, local parent 

networks, and state and national partners in the 

forum locations. In total, 72 people participated in 

the regional forums. Only 30 percent of regional 

forum participants were COPAA members and 

70 percent were non-COPAA members. Of the 

72 participants in the regional forum, 38 percent 

were parents or students of color.

The third phase of data collection occurred 

during an online forum at COPAA’s national 

conference. In total, 58 people participated in the 

national forum. Twenty-three percent were people 

of color. An additional 23 people responded 

through an email address.34 In addition to the 

72 participants at the regional forums, 81 people 

responded in the national forum and the email 

responses.

With this information, we describe 

experiences for these populations of students; 

identify any potential gaps in services, policy, and 

research; and make recommendations to improve 

opportunities for students with disabilities.

In all settings, NCD used a semistructured 

question protocol to gain perspectives about 

parent and child experiences with IDEA. Data 

was recorded and transcribed to identify themes 

among the experiences (see appendix for 

protocols).

Policy Analysis and Literature Review

To address these research questions, we 

reviewed the statute, related federal regulations, 

and federal Dear Colleague Letters (often 

referred to as federal guidance) to assess the 

current policies within ESSA. We focused both 

on the policies that explicitly mention students 

with disabilities and IDEA and on those policies 

that have the potential to impact students with 

disabilities. We also have reviewed research and 

literature on the impact of standards-based reform 

on the educational experiences of students with 

disabilities. Finally, we reviewed some of the initial 

state plans to evaluate the inclusion of students 

with disabilities within those plans.

With the change in administration—from 

President Obama to President Trump—and 

the start of a new Congress, we have closely 

monitored and reviewed activity of the 

Administration and 115th Congress through May 

2017 and the impact of such activities on ESSA 

and on students with disabilities.

Limitations

In this study, NCD recruited participants 

through COPAA’s member network, local 

parent networks, and state and national 

partners in the regional focus group locations. 

The interviewees were based purposefully on 

location and position. Therefore, the qualitative 

data identified in the report should not be viewed 

as generalizable, but rather as perspectives of 

individuals within those positions. Additionally, 

implementation of the law does not begin 

until the 2017–2018 school year. As such, the 

stakeholder perspectives are prospective in 

nature and additional studies will be needed to 

assess the impact of ESSA on students with 

disabilities after implementation.

18 National Council on Disability
Chapter 1: ESSA Provisions Specific to Students 

with Disabilities35

T

he goal of ESSA “is to provide all children 

significant opportunity to receive a fair, 

equitable, and high-quality education, 

and to close educational achievement gaps.”36

As noted earlier, ESSA seeks to accomplish this 

goal by requiring states to establish standards, 

assessments, and accountability systems. ESSA 

is designed to support all students, including 

students with disabilities, in expanding educational 

opportunity and improving 

students’ outcomes. 

IDEA focuses specifically 

on ensuring eligible 

students with disabilities 

are provided individualized 

services and supports to 

enable them “to be involved in and make progress 

in the general education curriculum.”37

Standards

Title I of ESSA requires states to set challenging 

academic standards in reading, math, and 

science that must apply to all public schools 

and all “public school children.”38 Statedesigned K–12 standards must align with higher 

education institution entrance requirements 

without the need for remediation and relevant 

state career and technical education standards. 

The law also requires that states adopt language 

proficiency standards for English learners (EL).39

Additionally, Title I of ESSA permits states 

to develop AAS for students with the most 

significant cognitive disabilities. AAS must be 

aligned to the state’s challenging academic 

content state standards, promote access 

to the general education curriculum, and 

reflect professional judgment of the highest 

possible standards achievable. Importantly, 

AAS must align to ensure students are “on 

track to pursue” 

postsecondary 

education or 

competitive integrated 

employment.40 The law 

does not permit states 

to develop any other 

alternate or modified achievement standards for 

students with disabilities other than AAS.41

With the implementation of more rigorous 

standards in recent years, one state administrator 

noted, “These days you are seeing real 

instruction in the standards. Teachers [are] 

empowered.” She added, that as a result, they 

are “providing more support on grade-level 

instruction . . . [and] access to more inclusive 

settings for our students.”42

Assessments

States are required to implement annual 

assessments in reading and math for each grade 

AAS must align to ensure 

students are “on track to pursue” 

postsecondary education or 

competitive integrated employment

Every Student Succeeds Act and Students with Disabilities 19
from third through eighth grades and once in 

high school.43 States must also test students 

in science once in the following grade spans: 

third through fifth grades, sixth through ninth 

grades, and tenth through twelfth grades. States 

must assure that students with disabilities—

as defined by IDEA or Section 504—taking 

the general assessment must be provided 

appropriate accommodations, which may include 

the use of assistive technology, “necessary to 

measure the academic achievement.” Statedesigned assessments should also be developed, 

incorporating principles of universal design for 

learning (UDL) “to the extent practicable.”44

The law requires the results of students 

to be reported by 

student subgroups 

(disaggregated) at the 

state, district, and 

school levels including 

a subgroup for students 

with disabilities. States 

must continue to test 

and report disaggregated 

assessment data on no less than 95 percent of 

all students as well as 95 percent of students 

in each student subgroup: low-income, race/

ethnicity, disability, EL, and any other subgroup 

established by the state.45

Alternate Assessment Aligned with 

Alternate Achievement Standards 

(AA-AAS)

States may continue to use a statewide AA-AAS 

for students with the most significant cognitive 

disabilities.46 A student’s IEP team makes the 

determination for inclusion in AA-AAS.

With past implementation raising concerns 

that students assessed on AA-AAS increased 

segregation and prevented access to the general 

education curriculum,47 Congress, in ESSA, 

required that IEP teams have more transparent 

conversations about assessment decisions. 

Specifically, through the IEP process, parents 

must be informed that their child’s performance 

will be measured against alternate achievement 

standards. They must discuss how the decision 

to take the AA-AAS may affect the child 

completing requirements for a regular diploma. 

The state must also ensure that the decision to 

assess a student on AA-AAS does not preclude 

him or her from attempting to complete a regular 

high school diploma.48

The law requires states to adhere to a 

1 percent student participation cap at the state 

level for each required 

subject.49 This new 

statutory cap exceeds 

the previous 1% rule 

under NCLB, which 

capped the counting 

of proficient scores. 

Under the new cap, 

states must ensure that 

they do not test students on the AA-AAS more 

than 1 percent of all tested students by subject. 

Districts do have flexibility if they need to exceed 

the 1 percent participation cap, and states are 

prohibited from applying a cap at the local level.

States may request a waiver from the 

Department of Education on the 1% participation 

cap. In the final assessment regulations, the 

Department added clarity on how states may 

request waivers.50 Specifically, waiver requests 

must be submitted 90 days prior to the start of 

the testing window for the subject area in which 

the cap is expected to be exceeded. With ESSA’s 

implementation timeline, such requests could 

be submitted as early as December 2017. State 

States must continue to test and 

report disaggregated assessment 

data on no less than 95 percent of 

all students as well as 95 percent 

of students in each student 

subgroup 

20 National Council on Disability
waivers are reserved for exceptional situations, 

in which states need to assess additional 

students with the most significant cognitive 

disabilities with alternate assessments. Waiver 

requests must provide transparent state-level 

information on the number and percentage 

of students, including by subgroup, taking 

the alternate assessment. Clarifying language 

provided by the Department of Education states:

Recognizing that a state should do 

everything it can to ensure students are 

being held to the appropriate standards and 

that only students with the most significant 

cognitive disabilities should be taking the 

alternate assessment 

aligned with alternate 

achievement 

standards, and to 

ensure that it is 

making substantial 

progress toward 

reducing the percentage to fewer than 

1 percent, the regulations require a state 

seeking a waiver to have a plan of action to 

meet the 1 percent limit in the future.51

Data from 2014–2015 alternate assessments 

based on AAS suggests that more than half of 

the states will need to address the 1% cap on 

participation because in that year they exceeded 

the 1% cap. The wide range of participation rates 

in the alternate assessment (from less than 0.6% 

to more than 2.0%) indicates that some states 

have successfully assessed less than 1% of 

students on AA-AAS. However, most states will 

need to specifically address the overuse of the 

AA-AAS and provide technical support to districts 

and IEP teams.

In utilizing the AA-AAS for students with the 

most significant cognitive disabilities, ESSA 

requires the state to meet several conditions in 

addition to those outlined above.52 Specifically, 

the state must promote involvement and 

progress in the general curriculum for students 

with the most significant disabilities consistent 

with IDEA. Through the state plan, the state 

must describe that general and special 

educators know how to administer the AA-AAS 

and how to use appropriately accommodations 

for students with disabilities on all assessments. 

They also must describe how the alternate 

assessments incorporate principles of UDL. 

Finally, to increase the number of students with 

the most significant 

cognitive disabilities 

participating in and 

assessed against the 

general assessment for 

the grade in which he 

or she is enrolled, the 

state must “develop, disseminate information 

on, and promote the use of appropriate 

accommodations.”53

Stakeholders identified challenges with 

the IEP teams making the decisions on 

assessment in their experience with previous 

implementation of the AA-AAS under NCLB. 

Parents noted the conversation frequently 

occurs at a young age and ties to decisions on 

placement. One parent advocate commented, 

“Where it becomes contentious is the general 

education [discussion], and deciding the 

placement of the child, the goals and [whether 

they take] the alternate assessment. Schools 

are bringing it up to parents in kindergarten, 

first grade, second, third grade. And then, when 

the parents try and get the child off of that 

[M]ost states will need to 

specifically address the overuse of 

the AA-AAS and provide technical 

support to districts and IEP teams

Every Student Succeeds Act and Students with Disabilities 21
[it’s difficult].”54 Another parent said, “the 

options were always presented as binary—

either life skills class at the expense of 

academics [and the regular classroom] or life 

skills get pushed aside for academics. Why can’t 

the child have both?”55

With the new requirement for IEP teams 

to discuss the options for assessment(s) as 

it relates to the child’s access to the general 

curriculum and to a regular diploma, both schools 

and families will need training and information. 

One local administrator acknowledged the 

benefits of the new statutory language around 

information during the 

IEP meetings, “Teachers 

[under NCLB] were 

challenged by how to 

manage and navigate 

the conversation with 

the parents when the 

decision for alternative 

assessments may take 

the child off track [for 

a regular diploma]. The new statutory language 

can help. [It gives] more power to the team and 

family.”56

Locally-Selected Assessment and 

Computer Adaptive Assessments

For the high school assessment, ESSA 

includes a new provision permitting districts 

to use a nationally recognized high school 

assessment, approved by the state, in lieu of 

a state high school assessment.57 To ensure 

these tests are truly “nationally recognized,” 

the regulations clarify they must be given in 

multiple states, be recognized by institutions of 

higher education, and provide the same benefits 

to all students—including EL and students 

with disabilities.58 The final regulations make 

clear that students with disabilities must be 

permitted to access accommodations on any 

locally-selected assessment in accordance with 

the state accommodations guidelines under 

IDEA. The regulations further stipulate that it 

is the additional responsibility of the state to 

ensure that a student who requires and uses 

accommodations is not denied any benefit 

afforded to a student who does not need such an 

accommodation. Finally, a state cannot approve 

an assessment that offers some students a 

benefit, such as a college reportable score, that 

would not be available to 

another student taking 

the same assessment 

with accommodations.59

States may develop 

computer-adaptive tests, 

which allows for above 

and below grade-level 

test items; however, for 

the purposes of ESSA, 

such assessments must measure and report test 

results against grade-level academic standards.60

States may also allow districts to develop 

innovative assessments under the Innovative 

Assessment Pilot, which applies to no more than 

seven grantees approved by the Secretary of 

Education.

State Accountability System

Under ESSA, states are required to develop 

their own statewide accountability system and 

use the system to make annual accountability 

determinations.61 States must develop a single 

accountability system based on standards and 

establish “long-term goals” for proficiency 

in reading and math and graduation rates as 

“[T]he options were always 

presented as binary—either 

life skills class at the expense 

of academics [and the regular 

classroom] or life skills get pushed 

aside for academics. Why can’t the

child have both?”

22 National Council on Disability
well as state-determined “interim measures 

of progress.”

major racial and ethnic groups, and students 

with disabilities. States may continue to set 

their own minimum group size or N size for 

subgroup disaggregation and accountability 

purposes with the caveat that such N sizes are 

statistically reliable.

Fifth Indicator or Additional Indicator

The indicator of school quality and student 

success, frequently called the fifth indicator or 

additional indicator, must be comparable, valid, 

reliable, and allow for meaningful differentiation 

across schools.63 This indicator can be a 

measure related to student engagement, 

educator engagement, advanced coursework, 

postsecondary readiness, school climate, 

and safety. The selected indicators must be 

statewide and the same for all subgroups of 

students, but the indicator may be different 

by grade span (e.g., high school versus 

elementary school). Since the passage of 

ESSA, as states develop draft consolidated 

implementation plans, representatives from the 

business, civil rights, and disability communities 

have advocated that states consider these 

five questions to guide decisions on this 

new indicator:

1. Is the indicator focused on students?

2. Can the indicator be measured by the 

student group?

3. Is the indicator aligned with readiness for 

post–high school success?

4. Does the indicator differentiate between 

schools?

5. Can the indicator hold the weight of 

accountability?64

Measuring School Performance

States must use the following indicators 

to measure school performance within the 

state accountability system:

1. Academic achievement as measured by 

the annual statewide assessments in 

English and mathematics

2. A measure of student growth or other 

academic indicator for elementary schools

3. For high schools, the four-year adjusted 

cohort graduation rate and may include 

an extended-year adjusted cohort 

graduation rate

4. Progress in achieving English language 

proficiency for EL

5. At least one “indicator of school quality 

and student success”

In determining the performance of schools, 

ESSA requires that each of the first four 

indicators have substantial weight in the system 

and, taken together, the first four indicators must 

have “much greater weight” than the indicators 

selected for the “additional” indicator in the 

accountability system calculation. The Secretary 

of Education is prohibited from prescribing any 

indicators or the weights for any of the indicators 

in the system.62

The performance of students must be 

described in the aggregate and disaggregated 

for low-income students, EL, students from 

Every Student Succeeds Act and Students with Disabilities 23
School Improvement

Within the accountability system, the indicators 

are used to identify, differentiate, and report on all 

public schools. At least every three years, states 

must identify schools for comprehensive support 

and improvement. The schools identified must 

include the following:

■ The lowest-performing 5 percent of schools 

receiving Title I funds in the state

■ All high schools with graduation rates below 

67 percent

■ Schools where 

a subgroup is 

consistently 

underperforming 

the same as the 

lowest 5 percent of 

schools and does 

not improve after a 

state-determined number of years

The state is required to determine the 

number of years for intervention and the exit 

criteria. Once identified, the district determines 

the school’s improvement plan. The state must 

review school progress after four years.

In addition to the identification of the schools 

for comprehensive support and improvement, 

the district must 

identify and oversee 

targeted support and 

improvement in any 

school when one or 

more subgroup is 

underperforming. In 

this case and for these schools, the district 

determines when intervention begins and 

ends except if the school is then identified 

as a consistently underperforming school in 

the state. With this new policy and limited 

opportunities for clarity from the Department of 

Education, the provision could be implemented 

in as many ways. As states submit their plans, 

it will be critical to analyze their proposals for 

determining underperforming subgroups and 

the requirements of districts to oversee support 

and intervention in identified schools.

Reflecting on the shift in ESSA back toward 

the states, Dr. Thomas Hehir, former director 

of the Office of Special 

Education programs, 

noted, “We still have 

guardrails in inclusion 

in accountability 

systems. . . . It wasn’t 

that long-ago kids 

weren’t even tested. 

The downside is how 

they will play out in 50 different accountability 

systems because so much discretion is at the 

state-level.”65

State Diploma Options and Students 

with Disabilities

ESSA defines both a regular high school diploma

and an alternate diploma. While the definition 

for a regular high school diploma is not new,66

the definition of an 

alternate diploma is 

new to the law. The 

definition gives states 

the option to create a 

diploma for students 

who cannot meet the 

requirements of a regular diploma. The purpose 

of defining the alternate diploma was to ensure 

that the requirements are still aligned to the state 

As states submit their plans, it will 

be critical to analyze their proposals 

for determining underperforming 

subgroups and the requirements 

of districts to oversee support and 

intervention in identified schools

While the definition for a regular 

high school diploma is not new, the 

definition of an alternate diploma is 

new to the law

24 National Council on Disability
standards and to the requirements for a regular 

diploma. States have asked for a way to count 

students with the most significant cognitive 

disabilities as graduates and this provides one 

pathway for states to do so.

Because students with significant cognitive 

disabilities typically receive IDEA services 

through age 21 (or beyond if allowed by 

state law), ESSA stipulates that a student 

must receive the alternate diploma within 

the time period that a student is eligible to 

receive services under IDEA. Importantly, a 

general equivalency diploma, certificate of 

completion, certificate of attendance, or similar 

lesser credential cannot count as an alternate 

diploma.67

While it is too early to know which states68

will develop an alternate diploma that meets 

the requirements of ESSA, one stakeholder 

said, “States are still making sense of the new 

policy and there seems to be interest. There 

are some positives to developing the alternate 

[diploma] such as: the opportunity to count 

students positively in graduation [rates]; and, 

it provides an opportunity for states [to work] 

with stakeholders to develop a meaningful 

diploma.”69

Parents are also clearly seeking more 

information and better options for their children 

with regard to diplomas and diploma options. 

One parent said, “in our state, a special 

education eligible child usually graduates 

with the lowest level diploma. This inhibits 

them towards attending a university after 

graduation.”70 Another family member noted 

concerns about her brother being educated 

in “an alternative curriculum,” adding that 

he was then only eligible for a certificate of 

completion.71

Disciplinary Practices, Including the 

Use of Seclusion and Restraint

Within the state plans, ESSA also requires 

states to include a description of how they will 

support districts “to improve school conditions 

for student learning, including through reducing—

(i) incidences of bullying and harassment; 

(ii) the overuse of discipline practices that 

remove students from the classroom; and (iii) 

the use of aversive behavioral interventions 

that compromise student health and safety.”72

The ESSA Conference Report clarifies that the 

term aversive behavioral interventions means 

seclusion and restraint.73

Parents from the forums emphasized 

concerns related to discipline in schools. One 

Every Student Succeeds Act and Students with Disabilities 25
parent described that after multiple suspensions 

and a “lack of effort by the school to find 

solutions,” they ultimately felt their child was 

“type cast” as a “bad student” and removed 

him from school.74 Another parent said her son 

was frequently removed from the class for 

disciplinary reasons adding he was “missing a 

lot of instructional time, [and] as a result he fell 

way behind.”75 In 2013–2014, 70,000 students 

with disabilities were subjected to seclusion and 

restraint, and students with disabilities had more 

than double the suspension rate of students 

without disabilities.76 Previous NCD reports 

have recommended Congress pass legislation 

to establish uniform standards on seclusion and 

restraint in schools to “ensure the safety and 

dignity of every student.”77

These new provisions in ESSA state plan 

are critical in ensuring states address these 

discrepancies. Yet, in early analyses of ESSA 

state plans, it appears that states are merely 

restating the statutory language rather than 

describing what they will do to support districts 

as required by the law. In some ESSA plans, 

states describe implementing Positive Behavior 

Interventions and Supports (PBIS), which may be 

beneficial. However, the plans do not ensure that 

such implementation targets and decreases the 

use of seclusion and restraint and exclusionary 

discipline.78

Professional Learning and Curricular 

Supports

ESSA’s Title II (Preparing, Training, and Recruiting 

High-Quality Teachers, Principals, or Other School 

Leaders) provisions eliminate the “highly qualified 

teacher” requirements under NCLB and replaced 

it with the requirement that states assure 

teacher certification or licensing requirements 

are aligned with the state’s challenging 

academic standards.79 ESSA made conforming 

amendments to IDEA regarding teachers 

and assures that special education teachers 

must obtain full state certification as a special 

education teacher; have not had special education 

certification or licensure requirements waived on 

an emergency, temporary, or provisional basis; 

and hold at least a bachelor’s degree.80 ESSA also 

eliminated the ESEA waiver requirement that 

states implement teacher evaluation systems. 

States may use Title II funds to implement such a 

system if they choose.

ESSA’s Title II, Part A (Teacher and Principal 

Training and Recruiting Fund) and Title IV, Part 

A (Student Support and Academic Enrichment 

Grants) are now block grants to states and 

districts. The allowable uses of funds are 

flexible and interchangeable between these 

two programs as long as the state and district 

can show how activities are aligned with state 

standards, the growth or improvements for 

teachers and principals, and how data will be 

used to improve the activities. In the case 

of a school district, they must also show 

the state how they will prioritize funds to 

provide support to personnel in the state’s 

lowest performing schools.81 Because of the 

Disciplinary Practices

In 2013–2014, 70,000 students with 

disabilities were subjected to seclusion and 

restraint, and students with disabilities had 

more than double the suspension rate of 

students without disabilities.

26 National Council on Disability
flexibility offered through federal law and the 

requirements to provide comprehensive and 

targeted improvement support to identified 

schools, states and districts could invest in 

training to support Multi-Tiered Systems of 

Support (MTSS) including PBIS, UDL, and other 

evidence-based programs that support the 

learning of all students, including students with 

disabilities.

In explaining how using data to support the 

targeting and allocation of resources works to 

both the state’s and the students’ advantage, 

one state administrator said, “[Because of our 

planning model], we can take the requirements 

of ESSA and IDEA and merge them. We have 

what we refer to as the Integrated Accountability 

System whereby districts submit data 

electronically and we can do a data analysis of 

all requirements to help identify where to put 

the professional learning resources and identify 

which districts and schools may need corrective 

action. We use data to make decisions about 

where our resources are going to go to support 

every student having improved outcomes.” 

ESSA was designed with this flexibility and 

accountability at the state level in mind.

Every Student Succeeds Act and Students with Disabilities 27
28 National Council on Disability
Federal Funding of ESSA and School 

Choice

On May 23, 2017, the President 

released the fiscal year 2018 (FY2018) 

budget, which provides $59 billion in 

discretionary funding for the Department of 

Education. This represents $9 billion in cuts 

or a 13 percent reduction below the FY2017 

level.82 In the President’s FY2018 budget, the 

state Title I formula for ESSA is reduced by 

$1 billion; however, the 

Administration has added 

an additional $1 billion 

to a specific program in 

Title I—the Furthering 

Options for Children to 

Unlock Success (FOCUS) 

program, which would 

support the establishment and expansion of 

systems that differentiate funding based on 

student characteristics and allow the funds a 

student generates to follow the student to a 

school of choice.83 The funding and FOCUS 

program builds on a new pilot program included 

in ESSA that allows up to 50 school districts to 

adopt a weighted student funding formula that 

would combine federal, state, and local dollars 

into a single funding stream tied to individual 

students.84 Under the pilot, districts would 

provide funding to schools based on the number 

of students they enroll and the characteristics of 

those students (e.g., EL, low-income, or students 

with disabilities). If a student leaves one school 

and moves to another, the receiving school is 

given the money designated for the student. In 

comparison, the current funding model used by 

most states-to-school districts provides funds 

based on staffing ratios and through specific 

funded programs. Under the predominant 

model, when a student changes schools, all or 

most of the funding 

stays with the local or 

original public school. 

The FY2018 budget also 

includes $250 million 

for competitive awards 

through the Education 

Innovation and Research 

(EIR) program to provide scholarships for 

students from low-income families to attend the 

private school of their parents’ choice.

Charter Schools

ESSA currently authorizes public school choice 

through Title IV, Part C (Expanding Opportunity 

Through Quality Charter Schools).85 In the 

reauthorization, the charter school program 

was amended to address concerns that charter 

schools are under enrolling and underserving 

students with disabilities.86 Specifically, the 

Chapter 2: Other Policy Considerations

Under the pilot, districts would 

provide funding to schools based on 

the number of students they enroll 

and the characteristics of those 

students 

Every Student Succeeds Act and Students with Disabilities 29
law requires grantees address recruitment, 

enrollment, and retention practices to promote 

access for all students including students with 

disabilities. Additionally, it requires charter 

authorizers to monitor schools on their ability 

to meet the needs of students with disabilities 

enrolled in their schools. The President’s FY2018 

budget includes a $168 million increase for the 

charter school program.

Private School Choice

Neither ESSA nor IDEA authorizes private school 

choice (vouchers,87 education savings plans,88

scholarships, or tax credits89). Congress and the 

Administration have actively discussed several 

policy routes to implement the Administration’s 

stated agenda to expand 

school choice. The 

appropriations process 

provides one mechanism 

for school choice policy. 

For instance, the FY2017 

Omnibus Funding Bill 

included $45 million for the District of Columbia 

school voucher program under the Scholarships 

for Opportunity and Results (SOAR) Act. As 

previously discussed, the FY2018 proposed 

budget expands public school choice with an 

additional $1 billion through FOCUS, adds $250 

million in the EIR program to provide scholarships 

for students from low-income families, and 

expands the charter school program. Binding 

action on the FY2018 budget is required by 

September 30, 2017; however, Congress may 

need to pass a continuing resolution and/or an 

omnibus bill to complete the appropriations 

process.

Parallel to the FY2018 appropriations process, 

Congress is actively discussing a new tax bill that 

could include funding for tax credits, education 

savings accounts, or both to provide school 

choice funding options to states and/or individual 

families. Additionally, several bills currently 

introduced in the House and Senate may be 

considered. For instance, the Creating Hope and 

Opportunities for Individuals and Communities 

through Education (CHOICE) Act (H.R. 691 and 

S. 235) permits IDEA and Title I funding to be 

used by parents at a school of their choice. Other 

proposals create block grants for vouchers and 

opportunities for tax credits or target specific 

populations of students such as Native American 

Indians or military families.

Importantly, any choice program developed 

may differentially impact students with 

disabilities and their 

rights depending on 

the structure of the 

program. For instance, 

under a school choice 

program where a family 

with a child eligible 

under IDEA selects a private school, the child 

becomes a “parentally-placed” private school 

student90—the parent rather than the IEP team 

has made the decision to enroll the child in 

a private school. This means a child can lose 

his or her individual right to a free appropriate 

public education under IDEA, and parents 

lose their procedural safeguards under the 

law. To maintain rights under IDEA, a private 

school choice proposal would need to specify 

explicitly the rights to which students and their 

families are entitled under such a program. 

As for anti-discrimination protections, if the 

private school accepts federal money through 

a voucher program, the schools would be 

obligated to comply with Section 504 of the 

Neither ESSA nor IDEA authorizes 

private school choice (vouchers, 

education savings plans, 

scholarships, or tax credits)

30 National Council on Disability
Rehabilitation Act.91 Under a tax credit proposal 

or an education savings plan, where a private 

school may not accept federal funds, the school 

may be considered a public accommodation 

under Title III of the Americans with Disabilities 

Act (ADA).92 As a public accommodation, the 

school is required to 

provide reasonable 

modifications for 

students with 

disabilities. Religious 

schools are not 

subject to the 

requirements of Title 

III of the ADA.

Regulatory Process

Using the Congressional Review Act (CRA), the 

115th Congress and the current Administration 

has sought to rollback what republicans consider 

burdensome regulations 

issued by the Obama 

Administration. The CRA 

allows Congress to vote 

to revoke regulation 

made final within 60 

continuous legislative 

days of when Congress received final notice of 

the regulation. After rescinding the regulation, the 

federal agency is not permitted to issue any new 

regulations if they are considered “substantially 

similar” until the statute is reauthorized.93

In March 2017, the President signed a joint 

resolution eliminating ESSA Title I accountability 

regulations made final in November 2016.94

Without the regulations to guide implementers 

and add transparency to the Department’s state 

plan expectations, stakeholders will need to 

evaluate the Department’s state plan approval 

process carefully.

Additionally, on February 24, 2017, the 

President signed Executive Order 13777 (the 

Order), Enforcing the Regulatory Reform Agenda 

to reduce regulatory burdens through regulatory 

reform. Because of the 

Order, a regulatory reform 

officer was appointed 

and the Regulatory 

Reform Task Force 

(RRTF) was established 

for the U.S. Department 

of Education. It is the 

responsibility of the RRTF to conduct an analysis 

of all departmental regulations and make 

recommendations for regulations to repeal, 

replace, or modify. On May 25, 2017, the RRTF 

provided a progress report and issued a public 

notice seeking comments on an initial canvass 

of education regulations 

and policy-oriented 

guidance. The public 

is invited to comment 

and make specific 

recommendations to 

repeal, replace, or modify 

existing regulations or guidance by August 

21, 2017. Public outreach from Department 

of Education offices is underway and the 

Order along with the Office of Management 

and Budget directed the agency to include 

in its FY2019 Annual Performance Plan five 

performance indicators focused on carrying 

out regulatory reduction and associated cost 

savings.95 At this writing, the RRTF has not 

indicated whether the current regulations for Title 

I (Part 200) will be kept, modified, or rescinded.96

To maintain rights under IDEA, a 

private school choice proposal would 

need to specify explicitly the rights 

to which students and their families 

are entitled under such a program

In March 2017, the President signed 

a joint resolution eliminating ESSA 

Title I accountability regulations 

made final in November 2016

Every Student Succeeds Act and Students with Disabilities 31
State Planning Process: 

Accountability for Students 

with Disabilities

States have two timelines for submitting their 

initial plans: April 3, 2017, or September 18, 2017. 

On March 13, 2017, Secretary DeVos reissued 

a Revised Consolidated State Plan template for 

state use to develop their ESSA plans.97 The 

revised template came just a few weeks before 

the April 3 submission deadline.

The new template eliminated elements,98

including removal of ESSA’s stakeholder 

engagement requirements.99 Advocates believe 

this removal diminishes vital grassroots input to 

ESSA plans. They said, 

“This action disregards 

Section 1111(a)(1)(A) of 

ESSA, which requires 

state education agencies 

to meaningfully consult 

a wide variety of 

stakeholders that are vital 

to the implementation and success of the law.”100

Despite these actions, stakeholders from 

our interviews acknowledged positive efforts 

with collaboration. For instance, a participant 

representing state departments of special 

education state administrator said, “We have 

states that are being more intentional around 

stakeholder engagement. What’s exciting is that 

we’re hearing more how states are working hard 

to make sure the right folks are at the table from 

the beginning. Special education directors for 

example [are] part of ESSA plan development in 

their states and that is encouraging.”101

In discussing the ongoing challenge of 

ensuring students with disabilities are fully 

considered throughout ESSA planning process, 

one state administrator commented, “It’s 

proactive for us to have Title I and IDEA on the 

same [internal] team.”102

In states such as Kansas, programmatic 

directors responsible for early education, special 

education, and all ESSA titles are housed in the 

same department. With this shared planning, 

the focus is on the success of all children and 

providing support to districts to influence a 

systemic approach to student learning and 

achievement.

While the semistructured interviews revealed 

positive developments regarding planning in 

some states, we also know that it has been 

challenging for stakeholders (in some states) 

to provide input given 

that many of the plans 

issued publicly for 

comment were lacking 

in the very details that 

advocates cared about. 

One advocate said, 

“The problem is that a 

lot of the missing information on the draft was 

essential but we were unable to review and 

comment on it.”103 For example, North Carolina 

and Arkansas issued their plans for public 

comment but the drafts lacked most information 

essential to determining any impact on students 

with disabilities.

Furthermore, the revised ESSA template 

eliminated the requirement to submit data on 

the number and percentage of students in each 

student subgroup that would not be included in 

the accountability calculation due to minimum 

N size. This means that states, as part of their 

ESSA plans, do not need to report on how 

many students and schools are left out of the 

accountability system.104 The higher the N size, 

the less likely it is for schools and districts to 

In states such as Kansas, 

programmatic directors responsible 

for early education, special 

education, and all ESSA titles are 

housed in the same department

32 National Council on Disability
be identified for comprehensive or targeted 

support and improvement under Title I. The ESSA 

template also affected how student graduation 

can be reported and eliminated a requirement 

for disaggregated graduation data by student 

subgroup. Finally, the new ESSA template does 

not require information regarding the state’s use 

of AA-AAS. With the new 

template and elimination 

of the regulation, states 

cannot count students 

exited from special 

education as part of the 

students with disabilities 

subgroup in the years following their exit.

As of May 12, 2017, 16 states and the District 

of Columbia have submitted ESSA plans deemed 

ready for peer review by the Secretary of 

Education.105 All other states will submit their 

plans in September 2017. An initial analysis106 of 

early drafts of ESSA state plans reveals some 

concerns or disconnects 

that may impact all 

disadvantaged students, 

including students 

with disabilities. These 

issues primarily relate 

to accountability, school 

improvement, and 

alignment with IDEA.

Specifically, 

states show considerable variability in how 

they approach the inclusion of subgroups 

in accountability. For instance, with N size, 

submitted state proposals’ N size range from 0 to 

30, meaning some states may still be excluding 

many students and schools in the accountability 

system. Some states are proposing to use a 

“super subgroup”107 in schools not meeting 

N size; however, Congress clearly established 

that differentiation of student subgroups is an 

essential focus of ESSA.

States have also demonstrated variability 

with their accountability systems. For instance, 

states are proposing a wide range of years to 

achieve long-term goals (from 6 to 20 years). 

Many states do not 

provide details on the 

methodology to identify 

schools or districts 

for comprehensive or 

targeted support and 

intervention. In fact, 

some states are explicitly excluding schools 

from identification for intervention and support 

when they have a high percentage of special 

education students. While ESSA allows states 

to apply different approaches to identifying 

schools, it does not allow for outright exclusion 

from accountability based on subgroups.108

Additionally, it is unclear 

if states have created 

meaningful plans for 

factoring the 95 percent 

participation rate on 

assessments into the 

accountability system as 

required by ESSA.

Additionally, state 

plans showed little 

alignment between other efforts to improve 

opportunities for students with disabilities and 

ESSA plans. Of the 15 or so plans reviewed, 

only one state, New Mexico, mentions the State 

Systemic Improvement Plan (SSIP). This lack 

of alignment between Title I and IDEA plans 

can be problematic. For instance, many states’ 

SSIP goals are focused on improving reading 

[S]tates, as part of their ESSA plans, 

do not need to report on how many 

students and schools are left out of 

the accountability system

In fact, some states are explicitly 

excluding schools from 

identification for intervention and 

support when they have a high 

percentage of special education 

students

Every Student Succeeds Act and Students with Disabilities 33
proficiency and/or reducing harsh disciplinary 

practices for students with disabilities, which 

may directly align with similar objectives in ESSA. 

Coordination between 

the two plans can help 

to increase collaboration 

between general and 

special education and 

better support students 

with disabilities. One 

stakeholder noted 

states should consider “to what extent they can 

leverage the good work they have already been 

doing.”109 Finally, even though ESSA presents 

opportunities for states 

to support efforts to 

make classrooms 

more accessible to all 

students through UDL, 

few states mention UDL 

implementation in their 

planning.

Of the 15 or so plans reviewed, only 

one state, New Mexico, mentions 

the State Systemic Improvement 

Plan (SSIP). This lack of alignment

between Title I and IDEA plans can 

be problematic

34 National Council on Disability
Analyzing the provisions of ESSA, the 

current status of state plans, and the 

perspectives of stakeholders, in this 

report, we recognize the following findings:

■ Inclusion in accountability: ESSA 

maintains key provisions to ensure students 

with disabilities are included in state 

accountability systems and are held to the 

same expectations as students without 

disabilities.

❍ State authority: ESSA returns 

considerable authority to the states in 

establishing parameters of accountability 

systems. Specifically, state decisions 

on provisions related to N size, the fifth 

indicator, 95 percent participation, and 

defining schools for comprehensive 

and targeted support for chronically 

underperforming subgroups can have a 

considerable impact on students with 

disabilities.

■ Assessment provisions: ESSA establishes 

that states are required to develop no more 

than two assessment options, meaning 

most students with disabilities should 

be taking the general assessment (with 

accommodations as appropriate). The law 

also introduces new options for high school 

assessment. This creates both opportunities 

and challenges in assessing students with 

disabilities.

■ Students with the most significant 

cognitive disabilities: ESSA includes 

provisions to support students with the 

most significant disabilities. Specifically, 

ESSA establishes key provisions around 

alternate achievement standards, alternate 

assessments, and alternate diplomas to 

improve opportunities for students with 

the most significant cognitive disabilities. 

ESSA clarifies that parents are to be fully 

apprised by the IEP team of the impact 

of choosing alternate standards and 

assessments for their child.

■ State plans: States have an important 

opportunity to engage stakeholders in 

meaningful ways to implement ESSA. 

States also have the responsibility to help 

districts invest in professional learning 

that includes MTSS, PBIS, UDL, and other 

evidence-based practices to improve 

academic outcomes as well as address and 

reduce the use of harmful aversive practices 

such as the use of seclusion and restraint.

Chapter 3: Findings

Every Student Succeeds Act and Students with Disabilities 35
36 National Council on Disability
Chapter 4: Recommendations

To ensure that students with disabilities are supported as schools, districts, and states 

begin to implement ESSA, policymakers should 

consider the following recommendations.

Recommendations

Inclusion in accountability: To best support students with disabilities in accountability 

systems, Department of Education officials, peer reviewers, and states should ensure that:

1. Schools are held accountable for student achievement disaggregated by student 

subgroups, in particular as they establish N sizes for accountability.

2. State accountability systems meaningfully hold schools accountable if fewer than 95 percent 

of all students or of any subgroup of students are not included in the state’s assessment.

3. Additional indicators or fifth indicators adopted by the state are meaningful for all 

populations of students and support improving academic achievement.

4. School districts identify schools in need of comprehensive or targeted support and 

intervention including when students with disabilities are the primary trigger for such 

improvement. Data and best practice show that when provided the instruction, support, 

services, and accommodations needed, most students with disabilities can achieve 

commensurate with their peers.

5. School and district improvement plans rely on the school data to adopt evidenced-based 

intervention and support strategies. One state administrator acknowledged the benefits 

of data, “For example, high school graduation: [we’ve found] it isn’t just a challenge for 

special education students. We help districts work on graduation rates for all students. 

Achievement on state [reading and math] assessments: we can provide professional 

learning to support teachers who have students struggling to meet state standards.”110

(continued)

Every Student Succeeds Act and Students with Disabilities 37
Assessment provisions: To best support students with disabilities in assessment, 

Department of Education officials, peer reviewers, and states should ensure that:

6. All assessments within the state system incorporate principles of UDL.

7. Students with disabilities are provided access to appropriate accommodations on any 

assessment offered by districts or the state.

Students with the most significant cognitive disabilities: To best support students with 

the most significant disabilities, Department of Education officials, peer reviewers, and 

states should ensure that:

8. States fully implement the new ESSA requirements regarding AA-AAS. States should 

utilize technical assistance, training, and support provided by the National Center on 

Educational Outcomes to update state criteria, train IEP teams, and work closely with 

parent advocates in order to assure students taking the AA-AAS are in fact appropriately 

assigned to that assessment.

9. Any state request to exceed the 1 percent participation cap at the state level is carefully 

considered and monitored to ensure students are not inappropriately included in the 

AA-AAS.

State plans: To improve conditions for student learning, Department of Education officials, 

peer reviewers, and states should ensure that:

10. Stakeholders are effectively engaged, including parents of students with disabilities, in 

the development of ESSA plans.

11. State plans include meaningful ways to reduce the use of exclusionary discipline and 

seclusion and restraint as well as incidents of bullying and harassment in schools. 

State plans should consider adopting, modifying, or enforcing state-level policies and 

promoting effective district-level policies to address these issues. State plans should 

also support practitioners in implementing alternatives to exclusionary discipline and 

seclusion and restraint.

Recommendations, continued

38 National Council on Disability
Endnotes

1 Pub. L. No. 114-95, 114 Stat. 1177.

2 Laura Hamilton, Brian Stecher, and Kun Yuan, Standards-Based Reform in the United States: History, 

Research, and Future Directions (Santa Monica, CA: Rand Corporation, 2008).

3 Martha Thurlow, “NCLB and the Inclusion of Students with Disabilities in the Accountability and Assessment 

Systems, Testimony before the House Education and Workforce Committee,” The Beacon (Fall 2004), 

accessed October 30, 2017, http://www.harborhouselaw.com/articles/highstakes.nclb.inclusion.thurow.htm.

4 Cammy Lehr and Martha Thurlow, “Putting It All Together: Including Students with Disabilities in Assessment 

and Accountability Systems,” NCEO Policy Directions 16 (October 2003), accessed October 30, 2017, https://

nceo.info/Resources/publications/onlinePubs/Policy16.htm.

5 Rachel Quenemoen, A Brief History of Alternate Assessments Based on Alternate Achievement Standards 

(Synthesis Report 68) (Minneapolis: University of Minnesota, National Center on Educational Outcomes, 

2008), accessed October 30, 2017, https://nceo.umn.edu/docs/OnlinePubs/Synthesis68/Synthesis68.pdf.

6 Arun K. Ramanathan, “Paved with Good Intentions: The Federal Role in the Oversight and Enforcement of the 

Individuals with Disabilities Education Act (IDEA) and the No Child Left Behind Act (NCLB),” Teachers College 

Record 110, no. 2 (2008): 278–321; Linda Darling-Hammond, “From ‘Separate but Equal’ to ‘No Child Left 

Behind’: The Collision of New Standards and Old Inequalities,” in Many Children Left Behind: How the No 

Child Left Behind Act Is Damaging Our Children and Our Schools, edited by Deborah Meier, Alfie Kohn, Linda 

Darling-Hammond, Theodore Sizer, and George Wood (Boston, MA: Beacon Press, 2004), 3–32.

7 Daniel Koretz, Measuring Up: What Educational Testing Really Tells Us (Cambridge, MA: Harvard University 

Press, 2008).

8 Jessica Cardichon, Ensuring Equity in ESSA: The Role of N-Size in Subgroup Accountability (Washington, DC: 

Alliance for Excellent Education, 2016), accessed October 30, 2017, http://all4ed.org/reports-factsheets/n-size/.

9 34 C.F.R. 200, 2003, accessed October 30, 2017, http://www2.ed.gov/legislation/FedRegister/finrule/2003-

4/120903a.pdf.

10 U.S. Department of Education, Alternate Achievement Standards for Students with the Most Significant 

Cognitive Disabilities Non-Regulatory Guidance (Washington, DC: Author, 2005).

11 Martha Thurlow and Yi-Chen Wu. 2016. 2013–2014 APR Snapshot #12: AA-AAS Participation and Performance

(Minneapolis, MN: University of Minnesota, National Center on Educational Outcomes, 2016), accessed 

October 30, 2017, https://nceo.info/Resources/publications/APRsnapshot/brief12/index.html.

12 Martha Thurlow, et al., Graduation Policies for Students with Significant Cognitive Disabilities Who Participate 

in States’ AA-AAS (Synthesis Report 97) (Minneapolis, MN: University of Minnesota, National Center 

on Educational Outcomes, 2014), accessed October 30, 2017, https://nceo.umn.edu/docs/OnlinePubs/

Synthesis97/SynthesisReport97.pdf.

13 Diane Lea Ryndak, et al., “Policy and the Impact on Placement, Involvement, and Progress in General 

Education,” Research and Practice for Persons with Severe Disabilities: The Journal of TASH (2014), 

doi:10.1177/1540796914533942.

14 34 C.F.R. 200, 300, 2007, accessed October 30, 2017, http://www2.ed.gov/legislation/FedRegister/finrule/2007-

2/040907a.pdf.

15 “Consortium for Citizens with Disabilities, letter to President Barack Obama, July 9, 2013,” accessed October 

30, 2017, http://www.c-c-d.org/fichiers/CCD_regulation_letter_final.pdf.

16 U.S. Department of Education, Raising Achievement: Alternate Assessments for Students with Disabilities

(Washington, DC: Author, 2006), accessed October 30, 2017, http://www2.ed.gov/print/policy/elsec/guid/

raising/alt-assess-long.html; Jamal Abedi, et al., Considerations for the Alternate Assessment Based on 

Every Student Succeeds Act and Students with Disabilities 39
Modified Achievement Standards (AA-MAS): Understanding the Eligible Population and Applying That 

Knowledge to Their Instruction and Assessment (Albany, NY: New York Comprehensive Center, 2009), 

accessed October 30, 2017, https://nceo.umn.edu/docs/AAMAS/AAMASwhitePaper.pdf.

17 Sheryl S. Lazarus, et al., The Characteristics of Low Performing Students on Large-Scale Assessments

(Minneapolis, MN: University of Minnesota, National Center on Educational Outcomes, 2010), accessed 

October 30, 2017, https://nceo.umn.edu/docs/OnlinePubs/briefs/BriefJan2010/NCEOBrie012010.pdf.

18 Martha Thurlow, Miong Vang, and Yi-Chen Wu, 2011–2012 APR Snapshot #7: State Assessment Participation 

and Performance of Students Receiving Special Education Services (Minneapolis, MN: University of 

Minnesota, National Center on Educational Outcomes, 2016), accessed October 30, 2017, https://nceo.info/

Resources/publications/APRsnapshot/brief7/index.html.

19 Hyun-Jeong Cho and Neal Kingston, “Capturing Implicit Policy From NCLB Test Type Assignments of Students 

with Disabilities,” Exceptional Children 78, no. 1 (2011): 58–72.

20 Thomas Hehir & Associates, Review of Special Education in the Houston Independent School District

(Houston, TX: Houston Independent School District), accessed October 30, 2017, https://hisdsped.files.

wordpress.com/2011/03/hisd__special_education_report_2011_final.pdf.

21 78 Fed. Reg. 52467, accessed October 30, 2017, https://www.federalregister.gov/documents/2013/08/23/

2013-20665/title-i-improving-the-academic-achievement-of-the-disadvantaged.

22 80 Fed. Reg. 50773, accessed October 30, 2017, https://www.federalregister.gov/documents/2015/08/

21/2015-20736/improving-the-academic-achievement-of-the-disadvantaged-assistance-to-states-for-theeducation-of.

23 U.S. Department of Education, Office of Special Education and Rehabilitative Services, Office of Special 

Education Programs, 36th Annual Report to Congress on the Implementation of the Individuals with 

Disabilities Education Act (Washington, DC: Author, 2014), accessed October 30, 2017, http://www2.ed.gov/

about/reports/annual/osep/2014/parts-b-c/36th-idea-arc.pdf.

24 U.S. Department of Education, Office of Special Education and Rehabilitative Services, Office of Special 

Education Programs, 38th Annual Report to Congress on the Implementation of the Individuals with 

Disabilities Education Act (Washington, DC: Author, 2016), accessed October 30, 2017, http://www2.ed.gov/

about/reports/annual/osep/2016/parts-b-c/38th-arc-for-idea.pdf.

25 National Council on Disability, The No Child Left Behind Act and the Individuals with Disabilities Education 

Act: A Progress Report (Washington, DC: Author, 2008), accessed October 30, 2017, http://www.ncd.gov/

rawmedia_repository/8cf4b0d0_ffd1_446c_b246_bc8a4048ac3d.pdf; National Council on Disability, 2004. 

“Improving Educational Outcomes for Students with Disabilities” (2004), accessed October 30, 2017, http://

www.ncd.gov/rawmedia_repository/f4a8d429_aff8_4d8a_90bb_a178a4b23222.pdf.

26 Ibid.

27 The coalition included Business Roundtable, Council of Parent Attorneys and Advocates, Democrats for 

Education Reform, Education Trust, Leadership Conference Education Fund, National Center for Learning 

Disabilities, National Council of LaRaza, National Urban League, U.S. Chamber of Commerce.

28 “See Students Can’t Wait Campaign,” accessed October 30, 2017, https://edtrust.org/students-cant-wait/.

29 Christina A. Samuels, “Suit Says NCLB’s Demands Conflict with Those of IDEA,” Education Week 24, no. 23 

(2005): 23, accessed October 30, 2017, http://www.edweek.org/ew/articles/2005/02/16/23suit.h24.html.

30 ESSA data is required to be separated (disaggregated) by race or ethnicity, income status, disability status, 

and EL status. See: Pub. L. No. 114-95 § 1111(2)(B)(xi).

31 U.S. Department of Education, “Working Together for Students with Disabilities: Individuals with Disabilities 

Education Act and No Child Left Behind, Frequently Asked Questions” (2005), accessed October 30, 2017, 

www2.ed.gov/admins/lead/speced/toolkit/faqs.doc.

32 20 U.S.C. § 1400(c).

33 Michael Yudin and Melody Musgrove, Dear Colleague Letter (Washington, DC: U.S. Department of Education, 

Office of Special Education and Rehabilitative Services, 2015), accessed October 30, 2017, http://www2.

ed.gov/policy/speced/guid/idea/memosdcltrs/guidance-on-fape-11-17-2015.pdf.

40 National Council on Disability
34 There is no demographic information from the 23 email responses.

35 Elementary and Secondary Education Act, Pub. L. No. 114-95, as amended.

36 Every Student Succeeds Act, 20 U.S.C. 6301 § 1001, Statement of Purpose.

37 Individuals with Disabilities Education Act, 20 U.S.C. 1414.

38 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(1).

39 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(1)(F).

40 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(1)(E).

41 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(1)(E)(ii).

42 Telephone interview, 2016.

43 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(2).

44 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2)(B)(xiii).

45 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(2)(I)(ii).

46 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(b)(2)(D)).

47 Diane Lea Ryndak, et al., “Policy and the Impact on Placement, Involvement, and Progress in General 

Education,” Research and Practice for Persons with Severe Disabilities 39, no. 1 (2014): 65–74, accessed 

October 20, 2017, https://www.gvsu.edu/cms4/asset/64CB422A-ED08-43F0-F795CA9DE364B6BE/ryndak_et_

al_2014_policies_on_inclusion.pdf.

48 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2)(D)(i)(VII).

49 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2)(D)(i)(I).

50 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2).

51 See Every Student Succeeds Act: Assessments Under Title I, Part A and Title I, Part B: Summary 

of Final Regulations, 2016, accessed October 30, 2017, https://www2.ed.gov/policy/elsec/leg/essa/

essaassessmentfactsheet1207.pdf.

52 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(D)(i).

53 Ibid.

54 Participant. Regional Focus Group or National Forum. 2016.

55 Ibid.

56 Telephone interview, 2016.

57 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2)(H).

58 See Every Student Succeeds Act: Assessments Under Title I, Part A and Title I, Part B: Summary 

of Final Regulations, 2016, accessed October 30, 2017, https://www2.ed.gov/policy/elsec/leg/essa/

essaassessmentfactsheet1207.pdf.

59 34 C.F.R. 200 § 200.2(b)(4)(i).

60 See Every Student Succeeds Act: Assessments Under Title I, Part A and Title I, Part B: Summary 

of Final Regulations, 2016, accessed October 30, 2017, https://www2.ed.gov/policy/elsec/leg/essa/

essaassessmentfactsheet1207.pdf.

61 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2).

62 Every Student Succeeds Act, Pub. L. No. 114-95, § 5301.

63 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(2)(C)(vii).

64 See: Students Can’t Wait, Indicators, What to Include in School Ratings, Students Can’t Wait, 2017, accessed 

October 30, 2017, https://edtrust.org/students-cant-wait/indicators-what-to-include-in-school-ratings/.

65 Dr. Thomas Hehir, Professor of Practice, Harvard Graduate School of Education, in discussion with the author, 

2016.

66 The High School Graduation Rate Non-Regulatory Guidance supersedes the U.S. Department of Education’s 

guidance, titled High School Graduation Rate Non-Regulatory Guidance, issued on December 22, 2008, 

for requirements that go into effect beginning with the 2017–2018 school year, accessed October 30, 2017, 

https://www2.ed.gov/policy/elsec/leg/essa/essagradrateguidance.pdf.

67 Every Student Succeeds Act, Pub. L. No. 114-95, § 8301(23)(A)(II)f.

68 Other than Louisiana, which has developed the Pathways program.

Every Student Succeeds Act and Students with Disabilities 41
69 Telephone interview, 2016.

70 Participant. 2016. Regional Focus Group or National Forum.

71 Ibid.

72 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(g)(1)(C)(iii)

73 U.S. Congress. 2015. Every Student Succeeds Act Conference Report to Accompany S. 1777. 114th cong., 1st 

sess., Nov. 30, accessed October 30, 2017, https://www.congress.gov/114/crpt/hrpt354/CRPT-114hrpt354.pdf.

74 Participant. 2016. Regional Focus Group or National Forum.

75 Ibid.

76 U.S. Department of Education, Office for Civil Rights, Civil Rights Data Collection: Data Snapshot (School 

Discipline), 2014, accessed October 30, 2017, https://www2.ed.gov/about/offices/list/ocr/docs/crdc-disciplinesnapshot.pdf.

77 National Council on Disability, Breaking the School-to-Prison Pipeline for Students with Disabilities

(Washington, DC: Author, 2015), accessed October 30, 2017, https://www.ncd.gov/publications/2015/06182015.

78 Samuels, Christina A., “70,000 Students with Disabilities Secluded and Restrained in School.” Education 

Week 36(31): 1, 2017, accessed October 30, 2017, http://www.edweek.org/ew/articles/2017/05/17/70000-

students-with-disabilities-secluded-restrained-in.html.

79 Every Student Succeeds Act, Pub. L. No. 114-95, § 2101 (4)(B)(i)(III).

80 Pub. L. No. 108-446, Title I(B)(612)(a)(14)(C) as amended by Every Student Succeeds Act, Pub. L. No. 114-95.

81 Every Student Succeeds Act, P.L. 114-95, § 2001.

82 This level is the FY2018 level proposed by President Trump on May 23, 2017, accessed October 30, 2017, 

https://www2.ed.gov/about/overview/budget/budget18/justifications/a-ed.pdf.

83 Ibid.

84 U.S. Department of Education, Fact Sheet: President Trump’s FY 2018 Budget, 2017, accessed October 30, 

2017, https://www2.ed.gov/about/overview/budget/budget18/budget-factsheet.pdf.

85 Ibid.

86 U.S. Government Accountability Office, Charter Schools: Additional Federal Attention Needed to Help Protect 

Access for Students with Disabilities, GAO-12-543, 2012, accessed October 30, 2017, http://www.gao.gov/

products/GAO-12-543.

87 Vouchers are typically money parents can use toward tuition at a private or religious school.

88 Education Savings Plans are usually savings accounts that can grow tax free and be used at an educational 

institution of the parents’ choice.

89 Tax credit scholarship, education tax credit, or tuition tax credit programs are a form of school choice that 

allows individuals or corporations to receive a tax credit from state taxes against donations made to nonprofit 

organizations that grant private school scholarships.

90 34 C.F.R. § 300.130.

91 29 U.S.C. § 701 et seq.

92 42 U.S.C. § 12181 et seq.

93 Carey, Maeve P., Alissa M. Dolan, and Christopher M. Davis, The Congressional Review Act: Frequently Asked 

Questions (Washington, DC: Congressional Research Service, 2016), accessed October 30, 2017, https://fas.

org/sgp/crs/misc/R43992.pdf.

94 Joint Resolution. Pub. L. 115-13. 131 Stat. 77. March 27, 2017.

95 U.S. Department of Education, Regulatory Reform Task Force Progress Report (Washington, DC: Author, 2017), 

accessed October 30, 2017, https://www2.ed.gov/documents/press-releases/regulatory-reform-task-forceprogress-report.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term.

96 Ibid. See Appendix 3.

97 U.S. Department of Education, U.S. Secretary of Education Betsy DeVos Announces Release of Updated ESSA 

Consolidated State Plan Template, 2017, accessed October 30, 2017, https://www.ed.gov/news/press-releases/

us-secretary-education-betsy-devos-announces-release-updated-essa-consolidated-state-plan-template.

42 National Council on Disability
98 See: U.S. Department of Education, Guide to Completing Revised Consolidated State Plan Template, 

accessed October 30, 2017, https://www.ed.gov/news/press-releases/us-secretary-education-betsy-devosannounces-release-updated-essa-consolidated-state-plan-template.

99 20 U.S.C. §1111(a)(1)(A)

100 AASA: The School Superintendents Association, et al., Letter to Council of Chief State School Officers, 

March 21, 2017, accessed October 30, 2017, http://www.aasa.org/uploadedFiles/Policy_and_Advocacy/files/

Stakeholder%20Engagement%20Letter%20to%20Chief%20State%20School%20Officers%20FINAL%20

(003).PDF.

101 Telephone interview, 2016.

102 Ibid.

103 Cortiella, Candace and Ricki Sabia, “ESSA Consolidated State Plans: Issues of Concern,” Excerpts from a 

presentation made to the Consortium for Citizens with Disabilities Education Task Force, 2017.

104 For instance, if a state chooses 40 as their cell size, every school in that state with 39 students (or less) with 

disabilities will not be included in the state accountability system. If the state chose 30 or 35, these schools 

would then be included.

105 U.S. Department of Education, Press Release, 2017, accessed October 30, 2017, https://www.ed.gov/news/

press-releases/us-secretary-education-betsy-devos-announces-all-spring-state-essa-plan-submissionscomplete-ready-peer-review.

106 Cortiella, Candace and Ricki Sabia, “ESSA Consolidated State Plans: Issues of Concern,” Excerpts from a 

presentation made to the Consortium for Citizens with Disabilities Education Task Force, 2017.

107 Under the ESEA Waivers, many states’ accountability systems combined subgroups of students into what 

was commonly described as super subgroups. Super subgroups are a mechanism used by states to combine 

several distinct groups of students together (EL, students with disabilities, poor students, etc.) when it would 

be better to have them separated. The ESSA Conference Report (November 30, 2015) states that the intent 

of the law (ESSA) was not to preclude states from “including additional elements or methods for identifying 

student and school performance, which may include using additional categories of students.” Such additional 

elements or methods “must not prevent the State from meeting the minimum requirements for meaningful 

differentiation, identification for improvement, and school support and interventions under this section, and 

the State must not use such additional elements or methods to reduce the number or percentage, or change, 

the schools that would otherwise be subject to the requirements of the State’s accountability system. . . .” 

U.S. Congress, Every Student Succeeds Act Conference Report to Accompany S. 1777. 114th cong., 1st sess., 

Nov. 30, 2015, accessed October 30, 2017, https://www.congress.gov/114/crpt/hrpt354/CRPT-114hrpt354.pdf.

108 Ibid.

109 Telephone interview, 2016.

110 Ibid.

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