In anticipation of slightly exceeding the federal 1 percent state-level cap on the percentage of students taking an alternative assessment, the Texas Education Agency posted for public comment a waiver request to the U.S. Department of Education for the 2017-18 school year. TCTA submitted comments supporting the waiver request in recognition that decisions regarding whether a particular assessment is educationally appropriate for a special education student lie properly with the student’s IEP team, and should not be hindered by a cap imposed upon student participation in certain assessments by virtue of another federal law.

The federal Every Student Succeeds Act places a 1 percent state-level cap on the percentage of students with the most significant cognitive disabilities who can take an alternative assessment aligned with challenging state academic standards (AA-AAAS). ESSA provides that, for each subject, the total number of students using the alternative assessment cannot exceed 1 percent of the total number of students in the state who are assessed in that subject. Unlike the former No Child Left Behind Act, ESSA allows states to seek waivers from the 1 percent cap; in fact, it expressly provides that states may do so. 

Also unlike the NCLB Act, ESSA prohibits USDE or a state from imposing a district-level cap on the percentage of students who can be assessed with an alternative assessment. However, ESSA does provide that if a district exceeds the 1 percent cap, it must submit information to the state justifying the need to exceed it, and the state is required to provide the district with appropriate oversight as a result.

In the letter to USDE seeking the waiver, the Texas Education Agency set out its plan for monitoring and providing additional guidance to school districts to make substantial progress toward reducing the percentage of students taking alternative assessments to fewer than 1 percent. Additionally, the TEA letter contains assurances that if Texas is granted the waiver:

  • It will continue to meet all other requirements of ESSA and take additional steps to support and provide oversight to each school district that the state anticipates will exceed the 1 percent threshold to ensure that only students with the most significant cognitive disabilities take an AA-AAAS.
  • It will monitor and regularly evaluate each such school district to ensure the school district provides sufficient training such that school staff who participate as members of an individualized education program team implement the guidelines established by the state for participation in AA-AAAS so that all students are appropriately assessed.
  • It will address any disproportionality in the percentage of students taking an AA-AAAS as identified through the data provided.
  • It has verified that each school district that the state anticipates will assess more than 1 percent of its students in any subject using an AA-AAAS has followed the state’s guidelines for participation in the AA-AAAS.

TCTA will continue to monitor developments on the waiver request and will report to our members accordingly.