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Legal Implications for Assessment. Case Law. Dianna vs. the Board of Education 1970 Filed on behalf of 9 students who were Mexican American Placed in classes for special education after a test on intellectual functioning that had been normed on children who were Caucasian

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Dianna vs. the Board of Education

    • 1970
    • Filed on behalf of 9 students who were Mexican American
    • Placed in classes for special education after a test on intellectual functioning that had been normed on children who were Caucasian
    • Items were deemed to be culturally biased
    • Court ruled that children were to be compared to their peers

Larry P vs. Riles

    • Plaintiff was African American
    • Court ruled that the assessment was biased
    • IQ was used as a measure of ability and test had not been standardized on a population that included minority students
    • Further ruled that no students could be placed until non biases tests were developed
    • States forced to retest all students and provide compensatory education

Chapman vs California Department of Education

    • Alleged test required for graduation (High School Exit Exam) was discriminatory
      • Court rules that a neutral agent should study the issue
      • Pending legislation for 2009 graduates for allow exemptions for students in special education classes

A.S.K. vs Oregon

      • Alleged test required for graduation was discriminatory for students with learning disabilities
      • Neutral panel submitted report
      • Oregon will take extensive steps to modify its current testing system so that students with learning disabilities will not be tested on their disabilities and instead will be able to demonstrate their abilities.
        • Broaden list of acceptable modifications
        • Institute an appeals process
        • Evaluate tests to see if they are valid and reliable for students with SLD

Noon vs Alaska

More accommodations allowed on state high school graduation exams

an alternative portfolio review assessment for students with severe disabilities to demonstrate their proficiency in math, reading, and writing,

an expedited due process appeals system


Briemhorstvs ETS

ETS agreed to stop “flagging” the test results of students who received extra time

are students with disabilities required to participate in a state s testing
Are students with disabilities required to participate in a State’s testing?

IDEA requires States to establish performance goals and indicators for children with disabilities--consistent to the maximum extent appropriate with other goals and standards for all children established by the State--and to report on progress toward meeting those goals.

  • Congress’s findings for the IDEA 1997 amendments noted that "the implementation of this Act has been impeded by low expectations…
  • Over twenty years of research and experience has demonstrated that the education of children with disabilities can be made more effective by
    • having high expectations for such children and
    • ensuring their access in the general curriculum to the maximum extent possible."
title i of the elementary and secondary education act
Title I of the Elementary and Secondary Education Act

A State assessment system will determine whether schools and districts receiving Title I funds are making adequate yearly progress (AYP) toward enabling all students in Title I schools to reach high standards.

All students with disabilities in those schools must be included in the State assessment system

Scores of students with disabilities must be included in the assessment system for purposes of public reporting and school and district accountability.


Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by such an entity.


“IEP should include a statement of any individual modifications in the administration of State and district-wide assessments.

Excluding students with disabilities from these assessments severely limits and in some cases prevents children with disabilities from continuing on to post-secondary education. “

why are students not exempt
Why are students NOT exempt?

Section 504 of Rehabilitation Act of 1973 prohibitsexclusion from participation of, denial of benefits to, or discrimination against, individuals with disabilities on the basis of their disability in federally assisted programs or activities.


States must use information about the performance of children with disabilities in State and district-wide assessment programs to revise their State Improvement Plans

States and LEAs also use results for rewards and sanctions for schools and districts


The IEP team determines how the child participates in State and district-wide assessments of student achievement.

    • What medications in administration
    • What modifications in content (Extend 1 and 2) as approved by the State
  • The IEP may NOT exempt the student from participation
individual decisions
Individual decisions

Decisions about student promotion or graduation may be based on state assessments

Other assessments and performance measures may be sued

out of level testing
“Out-of-level testing”
  • Assessing students using versions of tests that were designed for students in other (usually lower) grade levels.
    • May limit student frustration and provide appropriate assessment levels.
    • not specifically prohibited by IDEA but may be problematic when used for accountability purposes.
  • BUT 34 CFR §300.137 requires that the performance goals for children with disabilities should be consistent, to the maximum extent appropriate, with other goals and standards for all children established by the State.

Out of level testing MAY

    • Lower expectations
    • Prevent students from demonstrating full competence
    • Restrict access to general curriculum
how do we proceed
How do we proceed?
  • Modifications must be included in IEPs
    • Allow practice with modifications prior to testing
    • Ensure modifications are useful
    • Ensure modifications do not impede
  • Time
    • Extended time
    • Distributed time
    • Start times
    • Multiple day
  • Setting
    • Separate setting
    • Preferential seating
    • Small group setting
    • Presence of a familiar or specific teacher


    • Braille
    • Large print
    • Fewer items per page
    • Read aloud
    • Audio and visual accommodations
  • Response accommodations
    • Write in book
    • Verbal
    • Scribe
    • Word processor
    • Brailler

Aid accommodations

    • Overlays (masks for problems)
    • Voice activated computers
    • Calculators

• Be aware of how an accommodation may change what the assessment measures.

  • • Match the accommodation to the testing format (e.g., extended time for timed assessments, dictation for written essays).
  • • Match the accommodation to individual student needs
    • read aloud accommodation in science for a student who knows the material but cannot read the test because he or she has skills that are below grade level
    • testing breaks for a student with ADHD who cannot concentrate for long periods of time

Use accommodations only if educators use them in the classroom or they are otherwise necessary