[Congressional Record Volume 150, Number 113 (Monday, September 20, 2004)]
[Senate]
[Pages S9378-S9379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 IMPLEMENTATION OF ACCOUNTABILITY PROVISIONS FOR STUDENTS WITH SPECIAL 
                                 NEEDS

  Mrs. CLINTON. Mr. President, I rise to bring an important matter to 
the attention of my colleagues. As we all know, the No Child Left 
Behind Act, NCLB, requires an important shift in accountability for our 
Nation's public schools. It requires our schools to look at the 
achievement of all students, including students in several 
traditionally under-performing subgroups such as students with special 
needs.
  Our goal in passing this law was to make sure that no child was left 
behind to send a clear message that all American children deserve a 
world-class education. To do that, we required accountability for 
results, expanded local control and flexibility, emphasized the 
importance of valid and reliable educational tools, and expanded 
parental involvement. We also required schools to show, through 
transparent processes, sufficient progress for all students, including 
minorities, low-income students and students with disabilities.
  Today I am submitting for the record an August 30, 2004, New York 
Times article that contains troubling information about how NCLB is 
being implemented for students with special needs. This article, 
``School Achievement Reports Often Exclude the Disabled,'' by Diana 
Jean Schemo, illustrates that some States are skirting the law in ways 
that are leaving students with disabilities behind.
  According to Schemo and the education officials who corroborated her 
observations, some States have raised the minimum number of disabled 
students that must be enrolled before the school has to report on their 
progress as a separate group. And some States do not break down the 
test scores for disabled students on school report cards. A number of 
States even classify special education schools as programs, not 
schools, therefore exempting them from accountability.
  This report is deeply troubling because it makes it impossible for 
parents to evaluate the effectiveness of their children's schools, and 
ultimately, could lead to children with special needs being ignored as 
they too often were in the past.
  Over 25 years ago, Congress enacted the Individuals with Disabilities 
Education Act, a landmark education and civil rights law that ensured 
that all students--including the 6 million with disabilities--receive 
quality services in our Nation's public schools. This body has worked 
hard to reauthorize the IDEA because we continue to believe strongly in 
the notion that every child with special needs has the right to a free, 
appropriate, public education. The spirit and the letter of the No 
Child Left Behind Act builds on that promise, and it is my hope that 
with better implementation, it will be realized.
  I ask unanimous consent that the New York Times article be printed in 
the Record.
  There being no objection, the following material was ordered to be 
printed in the Record, as follows:

                [From the New York Times, Aug. 30, 2004]

         School Achievement Reports Often Exclude the Disabled

                         (By Diana Jean Schemo)

       The first time Tyler Brenneise, a 10-year-old who is 
     autistic and mildly retarded, took the same state achievement 
     tests as California's nondisabled children, his mother, 
     Allison, anxiously awaited the results, along with the state 
     report card on his special education school, the Del Sol 
     Academy, in San Diego. But when the California Department of 
     Education issued its annual report on school performance 
     several months later, Del Sol Academy was nowhere to be 
     found. Ms. Brenneise wrote state officials asking why. ``They 
     wrote back,'' she said, ``that the school doesn't exist.''
       That is because San Diego labels Del Sol a program, not a 
     school, said Karen Bachoffer, spokeswoman for the San Diego 
     schools. And like most other states, California does not 
     provide report cards for programs that educate disabled 
     children.
       ``He doesn't count,'' Ms. Brenneise said. ``He's left 
     behind.''
       The problem is not confined to California. Around the 
     country, states and school districts are sidestepping the 
     spirit, and sometimes the letter, of the federal No Child 
     Left Behind Education Act when it comes to recording their 
     successes and failures in teaching disabled youngsters.
       Federal officials have acknowledged permitting a growing 
     number of states to exclude many special education students 
     from reports on school progress, on the grounds that they 
     account for only a small portion of enrollment.
       But a review of state education records shows that some 
     states and districts are going far beyond this measure to 
     avoid disclosing the quality of the education they provide to 
     such students.
       Some exempt schools for disabled students. Still others 
     simply do not disclose basic information required by the 
     federal law, for example the percentage of disabled education 
     students who graduate from high school, and about 10 states 
     have not been fully reporting how students do on achievement 
     tests tailored to disabled students, federal officials say. 
     New York City's all-special-education district of 20,000 
     mentally or physically disabled students, District 75, gives 
     only fragments of the information the federal law requires 
     for accountability, reporting schools ``in good standing'' 
     despite dismal results.
       The trend toward avoiding accountability is alarming 
     advocates for the nation's six million disabled students, who 
     see it as an erosion of the education act's disclosure 
     requirements. In them, parents and advocates say, they saw a 
     crucial lever for helping their children meet higher academic 
     standards, and a way of finding out which schools were 
     meeting the challenge.
       ``The reporting system is a shambles,'' said James Wendorf, 
     executive director of the National Center for Learning 
     Disabilities. Without full disclosure, Mr. Wendorf said, 
     parents have no handy way of knowing what kinds of services 
     schools are providing each day and how the schools, as a 
     whole, measure up. ``It's like flying a plane without 
     instruments,'' he said. ``How does a parent know where the 
     plane is expected to land if they don't have that kind of 
     information?''
       Federal officials say that aside from the 10 or so states 
     not fully reporting scores on achievement tests tailored to 
     disabled students, most have made great strides to satisfy 
     the complex new law, but they say they are monitoring to see 
     that states follow through. Under the law, schools must 
     report on the test scores of disabled children to show they 
     are making adequate progress toward proficiency in reading 
     and math by 2014. The states are left to determine what is 
     proficient. Eugene W. Hickok, the under secretary of 
     education, acknowledged that many schools that exclusively 
     serve disabled children were not issuing report cards. But he 
     said that in such cases, the test scores of children in those 
     schools were instead reported at the school district level 
     and, if not there, at the state level.
       ``Every child is part of an accountability system,'' Mr. 
     Hickok said. ``That doesn't mean there aren't people who are 
     trying to

[[Page S9379]]

     find ways to get around the law.'' State officials deny any 
     effort to shortchange disabled students. Rather, many say 
     they were overwhelmed by the new law and could not initially 
     meet some of its more cumbersome reporting provisions.
       In some states, like New York, officials said that local 
     and statewide systems did not meet the federal law's demands 
     and that they had not entirely worked out the conflicts. New 
     York officials pledged to correct the problems but also 
     expressed misgivings about the value of report cards for some 
     schools.
       Particularly in the city's special education district, said 
     Lori Mei, executive director of the division of 
     accountability for the city's public schools, ``you really 
     can't have a cookie-cutter approach.'' Ms. Mei added, ``it 
     may be that we have to have different kinds of outcome 
     measures that are not really tests.''
       To close the achievement gap, the federal law requires 
     schools to report test scores separately for various groups 
     of students, including African-Americans, Latinos, immigrants 
     and low-income and disabled children.
       Schools must show sufficient progress by each of these 
     groups or face steadily tougher consequences that can 
     ultimately include closing.
       But states are skirting the law in a range of ways. About a 
     dozen have raised the minimum number of disabled students 
     that must be enrolled before the school has to report on 
     their progress as a separate group. In Maine, school report 
     cards, available on the state's Web site, do not break down 
     test scores for groups like disabled students or report the 
     percentage that took the exams. Nor do they in New Mexico, 
     Colorado or Arkansas, while in Michigan, report cards say 
     only whether particular groups, like disabled students, met 
     targets for proficiency and 95 percent participation in 
     exams.
       About 10 states, including Missouri, Utah, Delaware, 
     Colorado and Hawaii, have failed to properly report the 
     scores of disabled children on the special achievement tests 
     and are receiving federal money under ``special conditions'' 
     obligating them to do so in the future, federal officials 
     say.
       Most states are not issuing public report cards on special 
     education schools. Like California, states generally contend 
     that these are not schools, but programs, and thus are exempt 
     from the federal law, an argument largely accepted by 
     officials in Washington. In California, the determination of 
     what is a program and not a school can be made at the local 
     level, but it is often made by states or a consortium of 
     school districts.
       As a result, the scores for students attending special 
     education schools are frequently mixed in with the larger 
     pool of scores of disabled students from throughout the 
     districts, making it impossible for parents to get a snapshot 
     of achievement at the institution their children actually 
     attend each day, and for taxpayers to judge their 
     effectiveness.
       Dee Alpert, a lawyer who has researched the issue 
     extensively for her newsletter, The Special Education 
     Muckraker, said that parents of children who must attend 
     special education schools, usually those with severe 
     disabilities, must ``go through 97 different steps'' to get 
     information that is readily available to parents of normal 
     children.
       ``Being the parent of a kid with a disability is tough 
     enough,'' said Ms. Alpert, whose son was in special 
     education. ``Trying to be an informed involved parent of a 
     kid with a disability is tougher, by far.''
       But Mitchell Chester, the assistant superintendent for 
     policy and accountability in Ohio, said there were sound 
     reasons for attributing disabled children's performance to 
     their home districts, as Ohio does.
       ``We think districts have to remain accountable for whether 
     or not those children are served,'' Dr. Chester said. ``So 
     districts can't just make the decisions to farm kids out and 
     wash their hands of their progress.''
       Officials in Colorado, Maine and New Mexico said they would 
     release the breakdown of scores of disabled students on 
     standardized tests in the coming months. In Colorado, 
     officials said they had just begun reporting scores on the 
     special tests tailored to the disabled, while Delaware said 
     it had been reporting such scores, but not in the way the 
     federal law requires. Both said they were now complying 
     with the requirement.
       In Michigan, Ed Roeber, the director for assessment and 
     accountability, said school report cards did not detail 
     performance by particular groups like disabled students 
     because it ``would be confusing to people.'' Michigan grades 
     schools based on 11 indicators, only one of which is test 
     scores for the school as a whole. But reporting on separate 
     groups of students would be ``misleading,'' he said, because 
     test scores were unreliable indicators at that level. ``To 
     me, that's a major fault with the No Child Left Behind Act,'' 
     Mr. Roeber added.
       Ms. Brenneise, who is the chairwoman of a special education 
     advisory committee to the San Diego Board of Education, said 
     many schools were reluctant to honestly disclose their record 
     in educating disabled students, believing that these students 
     by definition cannot reach the same academic heights as other 
     students, and thus will always drag down the school as a 
     whole. Aside from discovering that no report card existed for 
     her son's school, she said that she never officially received 
     his test results. Eventually, Ms. Brenneise said, she filed a 
     formal records request and a district employee gave her a 
     slip of paper on which she had written what she said were the 
     son's test scores. Ms. Brenneise is now home schooling her 
     son.
       But much sidestepping of the law appears independent of the 
     intellectual disability involved. In Ohio, as in New York, 
     Oregon and many other states, public schools for the deaf and 
     the blind issue no reports on how well their students are 
     performing. Ohio officials acknowledge that deafness and 
     blindness do not typically imply lower intelligence, and said 
     they would release report cards for these schools next year.
       In New York, state education officials acknowledged that 
     the city's special education district was not fully reporting 
     on student achievement. Many of the district's schools 
     exclude more than half their students from the state's 
     standardized tests and do not report how they do on the 
     special achievement tests. Nor do they report how many 
     graduate or drop out.
       Though Albany issues report cards for many schools, state 
     officials said District 75 preferred to report its 
     performance to the public in a report card of its own design.
       ``Clearly, it was less than perfect, but I don't think it 
     was intentional,'' said Martha P. Musser, director of 
     information reporting services for the State Education 
     Department. ``New York City never had to deal with these 
     accountability issues for District 75 before.'' Ms. Musser 
     added that the state had ordered District 75 to improve its 
     public disclosure.
       The failure to report leaves parents like Martin 
     Schwartzman of Queens to make decisions in a vacuum. The 
     state recently ordered Mr. Schwartzman's 11-year old son, 
     Robby, who is autistic, to leave the private school he had 
     attended at taxpayer expense since first grade and return to 
     public school, along with 75 classmates.
       ``How can I get a measure of what's out there when there's 
     so little data available for District 75?'' Mr. Schwartzman 
     asked.
       Ms. Alpert, the lawyer, contends that the reticence to 
     report school results is too pervasive to be accidental, and 
     said the information being withheld was crucial for parents 
     and advocates.
       Several years ago, she represented a boy with attention 
     deficit disorder and learning disabilities whom the city 
     wanted to place in one of the special education district 
     schools. The boy was talented in math, and his parents 
     believed that with extra support, he could earn a Regents 
     diploma at a regular high school, she said.
       Using online school report cards that showed its reading 
     scores had fallen 20 percentile points in three years, while 
     math scores stagnated, Ms. Alpert refuted claims that the 
     school offered any ``foreseeable benefit'' for her client.
       ``We won the hearing,'' Ms. Alpert said. Within a year, she 
     added, the cumulative scores disappeared from the city's 
     school report cards.
       ``That's what score and graduation-dropout information does 
     for parents of kids with disabilities,'' she said, ``and 
     that's why school, district,'' regional programs and state 
     education officials ``don't want to publish it.''

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