Allison S. Owen · February 2010
78 GEO. WASH. L. REV. 870 (2010)
Thomas hates that he cannot understand. As far back as he can remember, he was unable to complete even the so-called simple lessons. Thomas would watch as the other students in his class easily formed the letters of their names on their papers while he struggled to do the same. Now that he is older, Thomas dreads taking tests. He even fails open book tests because he never understands what the questions are asking. Thomas often feels alone and sad that he cannot understand assignments the way his classmates can. In fact, Thomas has trouble making friends and his interactions with others often end badly. Sometimes he throws temper tantrums, unable to manage his anger because he always feels so frustrated.
Thomas is a learning-disabled student. His brain works differently, making learning more difficult for him than it is for his peers. Not only is Thomas under a lot of pressure to do well for his own benefit, but when it comes to mandated statewide assessments, he also carries the weight of his school on his shoulders. The No Child Left Behind Act (“NCLB”), a federal school-reform law, holds states accountable for student proficiency in various academic subjects. Thomas attends a school that improved significantly in its performance on the assessments, yet the school still failed to meet the standards set forth under NCLB. This is because Thomas, as a student with a learning disability, is separately accounted for under NCLB. Although Thomas did his best, he was still one of three disabled students in his school who failed to meet proficiency on the NCLB assessment. Well over two-thirds of his 500-student school reached proficiency level in both reading and math, yet three students effectively caused the failure of the entire school.
Thomas’s story and the story of his school are not unique. Over six and a half million school-age children, nearly fourteen percent, receive some type of additional educational services through special education. And all of them face difficult odds: compared to nondisabled students, between nineteen and forty-two percent fewer students with disabilities are able to pass state proficiency examinations; their drop-out rate is double that of nondisabled students; only fifty-five percent, as opposed to seventy-five percent of students within the general school population, receive a regular high school diploma; they are half as likely to attend college; they often avoid the “painful experience of school” and therefore have poor attendance; and according to the Census Bureau, only fifty percent of disabled individuals are employed, compared to the eighty-four percent of nondisabled individuals.
Although enacted with good intentions, NCLB compounds the plight of disabled children and risks stripping them of their right to an individualized education under the Individuals with Disabilities Education Act (“IDEA”). By imposing standardized testing on all students as a means of measuring a school’s progress, NCLB problematically shifts the IDEA’s focus on individualized programs that contemplate academic as well as social and developmental goals to mere performance-driven results. NCLB fails to recognize the limitations of disabled students in taking these assessments, the different pace at which many learn, and the other skills integral to their success. NCLB also fails to take nonacademic factors into account, including social, behavioral, developmental, and functional skills.
This Note proposes amending NCLB to align it with the individualized spirit of the IDEA. First, for those disabled students whose individualized education programs include a social, behavioral, developmental, or functional component, this Note proposes that these skills be included in the NCLB assessment. Second, the standards of the academic portion of the NCLB assessment should be modified to measure a disabled student’s progress at a rate determined by the team responsible for the student’s education.
Part I of this Note discusses the relevant provisions of NCLB and the IDEA, as well as the tension between the statutes. Part II describes how the interplay between the statutes creates negative consequences for disabled students. Part III details the proposed amendment to NCLB, and Part IV describes how the proposal addresses each of the NCLB consequences discussed in Part II.
