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June 18, 2001 New Jersey State
Board of Education Re: Comments on Amendments for Standards and Assessment for Student Achievement, NJAC 6A:8 Dear Members of the State Board of Education: On behalf of our clients, Education Law Center (ELC) submits the following comments on the proposed amendments to N.J.A.C. 6A:8. Since its founding in 1973, ELC has acted on behalf of disadvantaged students and students with disabilities to achieve education reform, school improvement and protection of individual rights. In addition to serving as lead counsel to over 350,000 preschool and school-age urban children in Abbott v. Burke, ELC provides a full range of direct legal services to parents and care-givers involved in disputes with public school officials. Each year, ELC serves approximately six hundred individuals in cases involving special education, student discipline and school residency. ELC applauds the State Board of Education for amending the regulations on standards and assessment to include students with disabilities and limited English proficiency, as required by the ESEA No Child Left Behind Act. The regulations as proposed, however, do not go far enough in some areas to assure school and district accountability for the academic performance of all students. Our comments are set forth below. 1. Education Law Center (ELC) does not have sufficient information to comment on the appropriateness of establishing the starting point for measuring the percentage of students meeting or exceeding the state’s level of proficiency at 75% but notes that the No Child Left Behind Act requires that it be based on the "higher of the percentage of the students at the proficient level who are in i) the State’s lowest achieving group of students; or ii) the school at the 20th percentile in the State, based on enrollment, among all schools ranked by the percentage of students at the proficient level." See IIII(b)(2)(E). Regardless of where the initial bar is placed, however, the No Child Left Behind Act makes clear that states must define "adequate yearly progress" so that all students in all groups are expected to improve and achieve the proficiency level in twelve years. 1111(b)(2)(B). The bar must be raised over time so that the goal of 100% proficiency is met no later than twelve years after the end of the 2001-02 school year. 1111(b)(2)(F). The State Board has indicated that it plans to address adequate yearly progress in Phase 2 of the amendment process, based on expected clarification from the Federal government. Nevertheless, the Board is obligated to raise the bar for the first time no later than two years into the process. 1111(b)(2)(H)(ii). The current amendments therefore must be revised to include, at a minimum, the level of proficiency that must be attained in the first two years of implementation so that schools and districts are aware of the progress they must achieve in the near future. In order to ensure that schools and districts do not focus on getting the more affluent children to proficiency first, leaving the most disadvantaged students behind in the process, and to comply with the No Child Left Behind Act, see 1111(b)(2)(C)(v)(II), the State Board must also include "separate measurable annual objectives" for improvement for students who are minorities, poor, disabled, or of limited English proficiency. 2. ELC appreciates the problems inherent in holding a school accountable for the performance of students who have not attended the same school for a full academic year and understands the rationale behind excluding from district accountability those students who have enrolled in the school or district after September 15 of the calendar year prior to the test administration. Nevertheless, schools and districts cannot totally abnegate responsibility for the academic progress of these students. Moreover, the No Child Left Behind Act makes clear that the performance of those students must be used in "determining the progress of the local educational agency." 1111(b)(3)(C)(xi). ELC therefore proposes that the State Board amend the regulations to include a provision that explicitly states that schools and districts are responsible for assuring that those students in the district who have not attended a single school in the district for one academic year make progress in meeting the Core Curriculum Content Standards ("CCCS"). In addition, the scores of those mobile students should be separately reported so that their progress can be separately tracked, as well as included in the overall assessment of the district’s progress. (See comment 4 below.) 3. ELC is concerned that some districts may attempt to improve their overall test scores by recommending that more students with disabilities take the Alternate Proficiency Assessment (APA) rather than take the Statewide assessments with accommodations and/or modifications. It is therefore imperative for the Department to provide districts with guidelines for identifying students on a case-by-case basis who cannot participate in other assessments due to the severity of their disabilities and who, therefore, should participate in the APA. On the contrary, the State Board has opted to delete N.J.A.C. 6A-8.4.1(d)(4)(i), on the basis that the provision repeats information provided in the special education code. However, it is unlikely that the majority of service providers who consult the state regulations on assessment will know to look as well in the special education code for specific guidelines pertaining to the assessment of children with disabilities. Thus, ELC recommends that the guidance provided in N.J.A.C. 6A:14-4.11(a)(2) and (4) be repeated in 6A:8. At a minimum, 6A:8 should direct readers to the relevant provisions of the special education code. 4. Section 6A:8-4.5 should be amended to incorporate the requirement in the No Child Left Behind Act that information on student achievement at each proficiency level be disaggregated by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged. See 1111(h)(1)(C)(i).5. The language of Section 6A:8-4.1(d)(1) is unclear as to which entity is responsible for determining appropriate accommodations and modifications to the Statewide assessment system for students with disabilities. As written, it appears as if the Department – rather than the IEP or 504 team – is responsible for determining which accommodations are appropriate for a particular child. In addition, the regulations should be amended to include guidance regarding how such accommodations are to be implemented, for it has come to our attention that many teachers are not consulting students’ IEPs prior to administering Statewide assessments for specific information on accommodations, relying instead on the test’s general instructions regarding appropriate accommodations. Thank you for your consideration of these comments. Very truly yours, Jennifer R. Weiser, Esq. |