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New York Students With Disabilities May Soon Take Easier Tests Than Their Peers

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State Education Commissioner John King Jr., second from right, speaks during a forum on Common Core learning reforms at the Stephen and Harriet Myers Middle School on Thursday, Oct. 24, 2013, in Albany, N.Y. The meeting Thursday was King's first since an earlier series of planned appearances was canceled after he was shouted down at a meeting in Poughkeepsie on Oct. 10. (AP Photo/Mike Groll) | ASSOCIATED PRESS

A proposal to test some severely disabled students on lower educational standards advanced in New York on Tuesday, paving the way for a potential collision course between the state and the federal government.

The New York State Board of Regents voted to support a proposal that would ultimately enable the state to test up to 2 percent of students with "severe disabilities ineligible for the alternate assessment" at their instructional ability -- and not their chronological age level -- up to two grade levels down. It would mean that, for example, a sixth grader with autism could be tested on an assessment written for fourth graders.

The yes vote means that the state will include that adjustment in a bid to have the federal government extend New York's waiver from the No Child Left Behind Act.

The controversial proposal revives a concept known as out-of-level testing, and civil rights advocates argue that New York's adoption of the proposal could lead to it becoming standard nationwide. On the one hand, some civil rights and special education advocates oppose the proposal, saying it would shortchange vulnerable students, and that they should instead be tested alongside peers their own age so that they don't slip behind as their classes pass them by. On the other hand, proponents, which include some teachers and New York State Education Commissioner John King himself, argue that testing students with disabilities at levels out of their reach is detrimental to their academic progress.

These supporters also say the proposal would make it easier to roll out the Common Core, a set of learning standards adopted by 45 states with the goal of making sure students across the country know the same things by the time they graduate from high school.

The proposal first came from King, who has been accused of rolling out New York's Common Core State Standards too quickly and recklessly. In January, the state teachers' union's board of directors voted "no confidence" in King, citing his Common Core implementation. And in several fora across the state, many special education teachers said Common Core exams were stressing their students.

But to go into effect, New York's testing change would have to be approved by the U.S. Education Department, which has signaled its opposition to out-of-level testing. For years, the feds allowed states to test up to 2 percent of students with disabilities on lower standards, but they have moved away from this practice. Over the summer, U.S. Secretary of Education Arne Duncan said he would seek to abolish the rule, allowing only 1 percent of students with the most severe disabilities to take a modified test. The Education Department recently reaffirmed that push. On a February call with reporters, Duncan's assistant secretary for elementary and secondary education Deb Delisle declined to comment specifically on New York's proposal, saying she has yet to receive a formal request from the state.

"We would have to look very carefully and reflect on what exactly they are proposing, but we have moved away from that 2 percent very deliberately," Delisle said, in response to a question from HuffPost. "We have heard from many support groups around special education students that they want their children to have access to high-quality standards and not have their education diminished in some regard by teaching to lower standards."

The National Center for Learning Disabilities, which represents parents of students with disabilities, sent King a letter saying that under the proposal, students tested at lower levels "will be permanently behind." The state should not lower the standards, they wrote, but rather enact "changes and enhancements to students' instructional programs" to boost performance.

Dianne Piche, who oversees education initiatives at the Leadership Conference on Civil and Human Rights, previously told HuffPost that the proposal revives an old idea used in segregated Southern schools to justify teaching black students at lower levels. "We are resurrecting issues with racism and disabilities that we never resolved," she said. "For a progressive state like New York to revert to practices that were embedded by the old South is horrifying."

Several New York groups, though, wrote to King supporting the proposal, saying it would help teachers. "Assessing a child closer to their instructional level will provide more accurate information," wrote Amy Zogby, director of the Syracuse University Parent Advocacy Center and Mid-State Region Special Education Center.

The special education proposal is part of a broader set of tweaks the Board of Regents has sought to make to the Common Core. Regents committees have suggested changes such as slowing down a plan to connect Common Core test performance to graduation rates by five years. They also have considered proposals that would tweak new teacher evaluations and their impact on teacher employment.

On Tuesday, the board voted to slow down the plan to connect graduation rates with test performance until 2022, and did not decide on the issue of teacher evaluations.

Rebecca Klein contributed reporting.

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