Administrative law primer for educators unfamiliar with admin law
To this point, I haven’t included many substantive posts. Any comments or questions are welcome.
Until recently, administrative law issues have not affected most people in education. The following briefly “talks through” some of the issues raised by the new policy on accountability under NCLB for students with disabilities. Hopefully, it will enlighten those unaccustomed to federal administrative law.
The new policy made me curious about the language which authorizes the U.S. Department of Education to create a 2% flexibility allowance for students with persistent academic disabilities—that is to say allowing states to use modified assessments for 2% of students. If the enabling language is in NCLB, then the question becomes whether the interpretation could be challenged in court.
Section 6311(b)(3)(C) of NCLB, which controls State plans, says that “[State] assessments shall … provide for … the reasonable adaptations and accommodations for students with disabilities ….” The 2% rate appears to be the Dept. of Ed’s understanding of what constitutes a reasonable adaptation. When administrative agencies make interpretations of statutes they are charged with administering, they can be reviewed and overturned by the courts. The courts are most deferential to administrative interpretations when an agency uses rulemaking procedures as the Dept. of Ed. will do in this case. Mere disagreement with the policy choice is not grounds to strike down the interpretation. Rather, it requires a court to find either the statute was not ambiguous (hence the interpretation is incongruous) or the statute was ambiguous and the policy is unreasonable. Here, the statute’s use of “reasonable” makes it ambiguous. Nothing I’ve read suggests the 2% rate is unreasonable. Assuming things go as planned and it becomes a federal regulation, the opponents of the regulation will have to either a) get Congress to change the language of the statute or b) elect a President willing to make a change. Neither option is a likely winner, so the time to be heard is during the rulemaking process where one can comment, offer amendments, or object.
- posted by bumper @ 10:43 PM 
1. the child is working at a grade lower than his actual age/grade level. Most of our kids are making fine progress, but they come to us 1,2, or even 3 grades behind...and we work like a dog to catch them up. But it takes longer than a few months, and that's all NCLB gives us.
2. the child is emotionally fragile, resistant to taking academic risks (like testing), and is likely to tank the test even if they do know the material. Even with extensive accomodations, many of our children are not equipped emotionally to handle testing. It's part of their disability.
3. the general ed school to which our 50 kid program for emotionally disabled kids has to suffer the consequences for having us in their building.... there is a strong liklihood our overall school will not make AYP this year, and we are big reason. Hmmm. No wonder folks don't want us in their schools.
4. There are several hundred emotionally disabled elementary kids in our county. Then that many more middle and high schoolers. The 2% gets used up by autistic, & mentally retarded children who are deemed (rightly so) unavailable for the testing requirement. It's a no win situation.
I don't know the people involved in making these rules. (Emeritus Professor Robert Henderson, UIUC special education probably does) I do know (based on objective empirical evidence) that most students labeled disabled in schools can likely meet grade-level academic expectations, if ...
It's a big if, and one that most teachers and parents do not address, and it may not make common sense to them.
If an educator assumes that "disability" is a social construct of convenience for the many, not a property of a person, ...
If you assume that when one teacher can generate grade-level performance of a person labeled XYZ, then others may also ...
If you assume that instruction of people labeled XYZ can change, then change it to generate better student results ...
Then, an educator may change the likelihood of increasing the achievement of a student labeled XYZ.
Then, the 2 percent rule seems adequate to accomodate students Mrs. Ris describes.
To be sure, I'm way out on a professional limb with my assertion, but I have good company with established professional thinking and empirical evidence acknowledged by a minority of (probably older) special educators and behavioral scientists.
Bob Heiny
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: 10:12 AMI need help with my crappy computer! It is always freezing when i open IE and going to MSN? What do you think?
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