President Obama delivers remarks next to Secretary of Education Arne Duncan in 2013. (Yuri Gripas/Reuters)

It seemed like an entirely reasonable request. The state of New York asked the U.S. Department of Education if it could get flexibility from federal law to test students with disabilities — those with “significant intellectual delays and substantial difficulties in cognitive areas such as memory, language comprehension, reasoning and problem-solving” — based on their developmental level and not, as required, on their age.

The answer was “no.”

New York officials also asked for flexibility to allow new English language speakers to have two years — instead of one — before they must take the state’s English Language arts exams for Grades 3-8. Given that English is a hard language to learn, and that it takes years to become proficient, that seemed like a reasonable request, too.

The answer, again, was “no.”

The 2002 No Child Left Behind law, which Congress is now trying to rewrite, sets out specific testing requirements, such as the ones mentioned above. The U.S. Education Department during the Obama administration has given waivers to states exempting them from other parts of No Child Left Behind, but somehow, couldn’t see its way to making it easier for students with disabilities and English Language Learners to take federally mandated standardized tests.

This episode shows just how dug in Education Secretary Arne Duncan’s department is when it comes to requiring all students to take standardized tests for “accountability” purposes — even if educators think it is useless and possibly harmful. If Congress does not find its way to rewriting No Child Left Behind and making it easier for educators to decide who is cognitively able to take a test and who isn’t, this mindset will continue.

According to the New York State School Boards Association:

Both requests were aimed at reducing stress on students and yielding more useful results. State officials say that federal rules that require testing students at their chronological age, with narrow exceptions for students with very severe disabilities, set up some disabled students for failure and turn the tests into stressful guessing games. School officials in districts with many immigrant students say one year often is not enough for new arrivals to be ready to take language arts exams written in English.

New York State officials recently received their answers to a waiver they sought in 2014. The request (which you can see here or below) said in part:

For the grades 3 – 8 State assessments currently in use, and until such time as NYSED transitions to adaptive testing, NYSED is requesting approval to more appropriately assess, for instructional, growth and State accountability purposes, the performance of a small subgroup of students whose cognitive and intellectual disabilities preclude their meaningful participation in chronological grade level instruction. These are students who have significant intellectual delays and substantial difficulties in cognitive areas such as memory, language comprehension, reasoning and problem-solving, but who do not meet the State’s definition of a student with a severe disability (most significant cognitive disability) appropriate for the State’s alternate assessment.

Asked why the department refused to grant flexibility to New York in these two instances, spokeswoman Dorie Nolt said in an e-mail:

Under Title I regulations, the Department holds states accountable for the performance of recently arrived English learners by requiring their participation in reading assessments after they have been in the United States for more than 12 months and including results from both reading and math assessments in accountability determinations. We continue to work with states on a case-by-case basis as they think through how to include all English learners in assessment and school accountability systems in a meaningful and thoughtful way that meets the requirements of the law. Any approach must ensure that students, including those who have recently arrived in the country with little or no English language knowledge, receive the resources, instruction, and interventions they need to make progress in learning the language, as well as mastering challenging, academic standards, and that educators and parents have information on their progress, beginning in the student’s first year enrolled in U.S. schools. New York requested to delay inclusion of these students entirely. We can’t afford to let recently arrived English learners slip through the cracks – schools should be held accountable for their learning.

Of course no student should “slip through the cracks.” Forcing kids to take tests when they can’t read and understand them seems to be on good way for them to slip right through.
New York was simply asking for permission to allow students to take mandated tests when they are able to actually read and understand them. The waiver request noted that the test scores tell educators pretty much nothing useful for them to help the students. It said in part:

These students are likely to be able to meet the State’s learning standards over time and make progress in the same curriculum and assessments, but are not likely to reach grade-level achievement in the time frame covered by their individualized education programs (IEP). When students with disabilities are required to participate in an assessment at their chronological age that is significantly misaligned with content learned at their instructional level, the assessment does not provide meaningful accountability, instructional or growth information for purposes of teacher and leader evaluations.

U.S. Assistant Education Secretary Deborah Delisle sent a letter in June to Elizabeth Berlin, then acting education commissioner of the state, saying that the requirements are “necessary to ensure that teachers and parents of all students, including (English learners) and students with disabilities, have information on their students’ proficiency and progress in reading/language arts and mathematics” and “to ensure that schools are held accountable for the academic achievement of all students.”

Here’s the request from New York officials for the waiver:

Here’s the letter from the U.S. Education Department in response:



new york letter1