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 (NCLB). The regulations as proposed, however, do not go far enough in some areas to assure school and district measurement of and accountability for the academic performance of all students. Enclosed, and incorporated by reference, please find comments prepared by Jennifer Weiser, Esq. of ELC in June 2002 on the standards and assessment proposal. Those comments, erroneously dated June 18, 2001, rather than 2002, were not included in the Department's July 2, 2002 Comment/Response form and should be considered now. Our additional comments are set forth below.

1. The state's proposed regulations are inconsistent with NCLB by failing to incorporate its mandate for multiple measures of student achievement. Sec. 1111(b)(3)(C)(vi). NCLB specifically requires that each participating state's assessment system "involve multiple up-to-date measures, including measures that assess higher-order thinking skills and understanding." Id. Thus, NCLB prohibits states from relying solely on traditional standardized tests to gather information about student proficiency and instead requires states to use multiple ways of measuring or assessing the same proficiencies. New Jersey's proposed regulations rely exclusively on the administration of one-shot tests to determine student proficiency at specified grade levels and therefore ignore this explicit requirement of NCLB.

2. The state's assessment and accountability system for students with severe disabilities is inconsistent with NCLB to the extent that the definition of the Alternate Proficiency Assessment (APA) in N.J.A.C. 6A:8-1.3 suggests that the APA is intended to be used for some students to determine their proficiency in the attainment of the Core Curriculum Content Standards for Students with Severe Disabilities (CCCSSSD), without also providing a measure of their proficiency in the attainment of the CCCS. NCLB requires that the state's accountability system be based on the achievement of all students towards the "same academic standards that the State applies to all schools and children in the State." Sec.1111(b)(2)(A)(i) and Sec. 1111(b)(1)(B). NCLB's plain language therefore requires states to measure and report student achievement against one set of standards.

In other sections, the New Jersey regulations do state that the statewide assessment system is designed to measure student progress in the attainment of the CCCS, N.J.A.C. 6A:8-1.1(c), and further state that the APA will measure the progress of students with severe disabilities toward achieving the CCCS and the CCCSSSD, N.J.A.C. 6A:8-4.1(d)(3)(ii). However, the definition of APA, which refers to a determination of student achievement in the CCCCSSSD and/or the CCCS for certain students with disabilities, implicitly allows the improper measurement of some students' achievement only against the CCCSSSD, and not against the same standards that apply to all students.

4. The documentation of student achievement and reporting requirements of the proposed regulations, found at N.J.A.C. 6A:8-4.2 and 4.5, in no way comport with the documentation and reporting requirements of NCLB. Among other requirements, NCLB requires the production of individual student reports that are "interpretive, descriptive, and diagnostic", that are provided to parents, teachers, and principals "as soon as is practicably possible after the assessment is given", and that are in an "understandable and uniform format, and to the extent practicable, in a language that the parents can understand." Sec. 1111(b)(3)(c)(xii). NCLB also requires that results be "disaggregated within each State, local educational agency, and school by gender, by each major racial and ethnic group, by English proficiency status, by migrant status, by students with disabilities as compared to nondisabled students, and by economically disadvantaged students as compared to students who are not economically disadvantaged...." Sec. 1111(b)(3(c)(xiii). These important NCLB requirements, as well as other NCLB documentation and reporting requirements, have been improperly excluded from the state's proposed regulations.