Like many of you, I watch and listen to the news with great anxiety… and am aghast at developments on Wall Street. Why did we get no warnings. Real warnings. Why did this come upon us as such a bolt seemingly out of the blue. But did it? Or did people know and not tell.

And that got me thinking–what do we know in education, and specifically, in special education that needs to be told to a wider audience. So we can bring about necessary changes before a jolt hits all of us.

I’m writing some of my ideas on that… and would love to hear yours.

Published online on September 16, 2008
Published in print on September 17, 2008

Education Week


A Dearth of Standardization in College-Entrance Exams

To the Editor:

As reported in your recent articles “SAT Scores for Class of 2008 Halt Slide of Recent Years” (Sept. 3, 2008) and “ACT Scores Dip Slightly as Participation Soars” (Aug. 27, 2008), scores on the SAT and ACT college-entrance exams remain flat or trend slightly downward, while score gaps between groups of students remain wide. Are these numbers reliable? Unfortunately, no.

We assume that scores reflect a standardized norm, but this is not the case. While attention turns to the ACT’s one-tenth of a point decline (on a 36-point scale), where is the mention of the approximately 2 percent of SAT test-takers who take the exam under nonstandard conditions? The latter is a far more significant number.

In 2002, when the College Board, the owner of the SAT, faced a threatened lawsuit by disability-rights advocates who argued against flagging scores of exams administered with extended time, it blinked. Rather than defend its appropriate and legal reporting, the College Board settled. ACT Inc., the owner of the ACT, followed suit. Since 2003, test scores are no longer marked, and no one knows what scores mean because some (how many?) are not normed, not standardized. In short, there are apples and oranges aplenty. On the SAT, time can be extended by 50 percent or even 100 percent, thus modifying the test.

As an attorney who represents schools and writes and speaks nationally about testing and standards issues, I see the widespread confusion and cynicism this flawed policy causes. Who, if anyone, benefits from results whose very validity is questionable?

Rather than continue down this path, the College Board should consider three better options: (a) Flag scores again; (b) give all students the choice to take tests with nonstandard accommodations that would be flagged; or, (c) if time really does not matter, simply remove the time restriction from everyones tests. These steps could return trust, fairness, and validity.

Public reporting is overdue, even as we ponder flat scores, wide gaps, and slight dips.

Miriam Kurtzig Freedman
Stoneman, Chandler & Miller LLP
Boston, Mass.

Back in 1995, I wrote the attached piece which appeared in Education Week. Briefly, it speaks about the fact that we spend too much time, money, and effort on evaluating children and putting them into various categories–and that we should spend more time, money, and effort on teaching ALL students.

The article received LOTS of responses at the time. As a school attorney, I visited many schools back then. Often I saw the piece on school bulletin boards. Fun! I’d love to know what you think of the message. I believe it still rings true. Enjoy the read!

Education Week: The Elevator Theory Of Special Education

Have you been following news of the SAT and ACT scores?

Education Week, August 27 and September 3, 2008 reported that SAT scores are flat. Gaps among groups remain wide. ACT scores “dip slightly.” Are these numbers the meaningful gold standard we need? Unfortunately not. We assume reported scores reflect a standardized norm. But, alas, they no longer do. While Ed Week headlines SAT scores and the ACT’s one tenth of a point (on a 36 point scale) decline as a “slight dip,” where is mention of the approximately 2% of ALL students who take the SAT with extended time? A far higher number!CAVEAT: Unfortunately, I was unable to find current percentages for either test.

Since 2003, when the College Board (BC) faced a threatened lawsuit by disability advocates who argued against “flagging” scores that were administered with extended time, it blinked. Rather than defending its appropriate and legal reporting, the CB, owner of the SAT, settled. ACT Inc., owner of the ACT, followed suit. Test scores are no longer “flagged.” No one knows what scores mean because some (how many?) are not normed, not standardized. Apples and oranges aplenty. On the SAT, time can be extended by 50% or 100%, modifying the very test!

As an attorney who represents schools and writes and speaks nationally about testing and standards issues, I see the widespread confusion and cynicism this flawed policy causes. Who, if anyone, benefits from results whose very validity is questionable?

Rather than continuing down this path, consider three better options: (a) “Flag” scores again. (b) Give all students the choice to take tests with non standard accommodations that will be flagged. Or, (c) if time really does not matter, simply untime everyone’s tests. These steps can return trust, fairness, and validity.

Public reporting is overdue, even as we ponder flat scores, wide gaps, and slight dips.

I’d love to hear your thoughts.

Dear friends of public education,

It’s been far too long since my last post–I was away from my desk.

Nonw, I’m back and happy to report that my little law book, GRADES, REPORT CARDS, ETC…AND THE LAW continues to meet needs all over the country! People seem to love it.

In fact, I’ve been invited to speak around the country on this issue which is really about the nuts and bolts of inclusion in classrooms. How do educators provide grades for all students, including students with disabilities, honestly, validly, and fairly–so that they and their parents get the relevant information they need. And ultimately, so education results improve.

If you have specific questions, concerns, or comments on these issues, please send them along. I’ll do my best to respond.

Also, I wanted to let you know that my third little law book (the first one is now an LRP Publication, STUDENT TESTING AND THE LAW) will be published soon. It is called, IEP AND 504 MEETINGS… AND THE LAW. This little book, too, should be a great addition to your library–useful, and hopefully, fun, too. A law book that’s fun? Yes, indeed we aim for that!

Moving from Confusion to Confidence to Return to the Mission of Educating All!


Hello again,

I get so many questions about this topic… so let’s see if this explanation helps.

Educators and parents often get confused about the difference between these. Remember: an accommodation does NOT fundamentally alter what is being taught or tested, and a modification DOES. A fundamental alteration changes the essence of what is being taught or tested. For example, providing a student with a reader (someone or a technology to read the text to him) on a reading lesson or test fundamentally alters the lesson or test. If a student uses a reader, he is not reading–he is being read to. That is a different skill set. Therefore, it is a modification.

Making these decisions arise in schools–and in many other settings. Do you remember Casey Martin, the golfer whose lawsuit went all the way to the Supreme Court in 2001? That’s what the case was about. The whole country got a lesson in accommodations and modifications then!

Due to his leg impairment, Martin could participate in the PGA Professional Tour only if he was allowed to use his golf cart. His impairment substantially limited his ability to walk long distances (5 miles on that golf course, as I recall.).

Well, the Supreme Court analyzed the situation and came down on his side. It decided that the cart would NOT fundamentally alter the PGA Tour. And here’s the key: To do so, it had to analyze whether WALKING was fundamental to the game. If it was, Martin could not use the cart. If it was not fundamental, then he could use it. Based on the evidence it had, the Court decided that walking was NOT fundamental.

Importantly, the Court reminded us that accommodations should NOT provide an unfair advantage to the person. If the cart had done so, it would not be allowed. Based on the evidence before it, the Court found that the cart did NOT provide an unfair advantage. So, it was allowed.

Bottom line: decide what is fundamental. And go from there!

I hope this post is useful. Would love to hear! Miriam

The issue of report cards and transcripts comes up often. I get many email queries about it…

So, I’d like to share my several step process in developing report cards.

As I see it, the most important step is the first one. The school needs to be very clear about what the grades will mean. This can be either school wide or teacher-by-teacher. In either case, students and parents have a right to know what matters when it comes to grades.

Will they focus on knowledge? skills? effort? attendance? participation? Some of the above? All of the above? In what order of importance? Be very clear about what grades mean. Of course, different teachers can have different standards.

I hope this chart is useful:


1. Establish standards that are based on objective criteria or other educational justification.

2. Create clear uncomplicated standards that are fair and easy to understand.

3. Notify everyone! This includes students and parents.

4. Implement consistently. Build in the possibility for flexibility–that is, for making exceptions in rare situations. Have a procedure in place for these.

5. Remember–This is NOT rocket science!

6. Remember–Courts defer to educators who do the above.

7. Keep smiling. Education is where it’s at!

If this chart is useful, let me know!


NEW! New Regulation 34 CFR 300.160.

In essence, it’s a new development about accommodations! The Regulations now specify that accommodations on state or district tests need to lead to VALID results!

On April 9, 2007, as you probably know, the US Department of Education issued NCLB and IDEA regulations dealing with assessments (both regular assessments and accommodations, and alternate and modified assessments). For those of us who believe in standards when testing and in valid results from testing, this new regulation should be very helpful.

The relevant sections of the new regulation, 34 CFR 300.160, Participation in assessments, are cited below. In brief, state or local policies and guidance may not allow accommodations that invalidate scores (such as reading a reading test). Emphasis added.

(a) General. A State must ensure that all children with disabilities are included in all general State and district-wide assessment programs, including assessments described under section 1111 of the ESEA, 20 U.S.C. 6311, with appropriate accommodations and alternate assessments, if necessary, as indicated in their respective IEPs.

(b) Accommodation guidelines.
(1) A State (or, in the case of a district-wide assessment, an LEA) must develop guidelines for the provision of appropriate accommodations.
(2) The State’s (or, in the case of a district-wide assessment, the LEA’s) guidelines must–

(i) Identify only those accommodations for each assessment that do not invalidate the score; and
(ii) Instruct IEP Teams to select, for each assessment, only those accommodations that do not invalidate the score.

(d) Explanation to IEP Teams. A State (or in the case of a district-wide assessment, an LEA) must provide IEP Teams with a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on modified or alternate academic achievement standards, including any effects of State or local policies on the student’s education resulting from taking an alternate assessment based on alternate or modified academic achievement standards (such as whether only satisfactory performance on a regular assessment would qualify a student for a regular high school diploma).

(f) Reports. An SEA (or, in the case of a district-wide assessment, an LEA) must make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(1) The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations (that did not result in an invalid score) in order to participate in those assessments.
This regulation is new! It does not replace another regulation–it creates a new one. It went into effect on May 9, 2007. The IDEA now explicitly requires that states or local agencies that do testing allow and report scores taken only with accommodations that do not invalidate results. This is consistent with the earlier regulation defining “appropriate accommodations,” at 34 CFR 300.320 (a)(6)(i).

I believe this development will strengthen the attempt by educators to assure that test results are valid. Valid test results will, I believe, lead to better teaching and learning!

Sunday, April 15, 2007

Great news about Grades, Report Cards, etc…and the Law!
Great news!

My little book, Grades, Report Cards, etc…and the Law, has been adopted by the state of Colorado for all of high schools in the state. Each one received a copy! As well, each one received a copy of the 2-page update on cases and Department of Education guidance, which have developed since the book was first published two years ago. If you wish a copy of that 2-pager, email to, and I will send it to you.

Helping educators move from confusion to confidence!

Sunday, March 11, 2007

New OCR guidance on report cards and transcripts!
Report cards and transcripts for students with disabilities (SWD)
—New OCR guidance for how to do them.

March 2007 Update
Miriam Kurtzig Freedman, M.A., J.D.

Letter to California, 47 IDELR 45 (OCR 2006). The Office for Civil Rights (OCR) recently provided additional guidance for school professionals and parents. The OCR highlighted similarities and differences between report cards and transcripts for SWD.
First the similarities:

Report cards and transcripts have the same purpose: to provide information about a student’s “progress or level of achievement in specific classes, course content, or curriculum.” Each is designed to provide information about WHAT the student is studying and the progress/achievement of that student.

Report cards and transcripts can assign grades for how SWD participate in regular education classes. Districts or states establish standards. If SWD do not participate in the general or grade-level curriculum and are taught different content, modified, or alternate curriculum, report cards and transcripts can (and should) reflect that. This Letter is consistent with prior OCR letters.

For report cards and transcripts, the OCR highlights the fact that schools generally have a continuum of options for students—e.g., from below basic to basic to college prep to honors to Advanced Placement. The OCR confirms that report cards and transcripts can use markings, such as asterisks (*) or other symbols to indicate that SWD had a modified or alternate curriculum in general education. This Letter is consistent with prior OCR letters.

Now, the differences between report cards and transcripts:

This OCR letter highlights differences between report cards and transcripts. The OCR reminds us that Section 504 and Title II of the ADA prohibit schools from treating SWD differently from other students on the basis of disability. As a general rule, SWD should receive the same aids, benefits and services as other. A different aid, benefit, or service is permissible if it is necessary for SWD, so long as it is as effective as the aid, benefit or service that is provided to others. Specifically:

Report cards. These are provided to parents. Since, according to the OCR, they are not provided to others, the OCR reasons that report cards may indicate that a student receives special education or related services—so long as that information is consistent with the purpose of report cards (to inform parents about how the child is progressing). Merely indicating that a child receives special education and related services is not enough—as it is not as meaningful as report cards provided to other students (which indicate level of progress, etc.) Contrary to prior letters, this Letter appears to permit report cards (but not transcripts, see below) to inform parents about the WHO. See earlier blog for the difference between the WHAT and the WHO.

Transcripts. These are provided to others (such as post-secondary institutions, potential employers, and others outside the district). They may not indicate that a student receives special education or related services because such information (a) impermissibly reveals confidential information and (b) does not further the purpose of transcripts (to provide information about the student’s academic achievement). Transcripts may provide information about the WHAT—not the WHO: What did the student study and how did he/she do? This Letter confirms prior letters.

Finally, recall that while transcripts may indicate modifications of standards, they may not indicate the use of accommodations. See earlier blog for the difference between accommodations and modifications.

See Miriam’s book, Grades, Report Cards, etc…and the Law

for a far more extensive (and reader-friendly) discussion of these issues.

For information, please email

Together—creating legal solutions for better schools!

Thursday, March 01, 2007

A new OCR letter, with guidance on report cards and transcripts for students with disabilities
The OCR recently responded to continuing concerns about grades and coursework for students with disabilities (SWD) on report cards and transcripts. See its Letter to California, 47 IDELR 45 (OCR 2006).

In many ways, this letter is similar to many prior OCR letters, such as Letter to Runkel, 25 IDELR 387 (OCR 1996) and Centerville (OH) City School District, 40 IDELR 20 (OCR 2003). It confirms our prior blogs about accommodations and modifications, and the WHAT and the WHO!

I will summarize this new letter shortly.

Wednesday, February 14, 2007

The difference between the WHAT and the WHO
Here’s the third post about accommodations–which really gets us to the nitty gritty, to where it’s at.

Let’s recall that back in 1997, Congress revolutionized special education law by incorporating the “general curriculum” into the IDEA.

Since 1997 and the 1999 regulations
, all (that is, most) children with disabilities are to be included in the general curriculum with or without appropriate accommodations. Their education is based on what is happening in regular ed–not just on their own disabilities.

In short, their education is based on the WHAT of the curriculum. It’s all about WHAT the other students are learning in regular ed classes…. A world of difference from how we educated children with IEPs before 1997.

IEP Teams now need to know WHAT is going on in general ed–and how to include the student with disabilities in that curriculum (when that is appropriate for the child, as it will be for most children with disabilities). It’s all about the WHAT.

This is why the regular education teacher and someone “knowledgeable about the general curriculum” needs to attend the IEP meeting! Again, a huge change brought about by the 1997 IDEA amendments!

Once the IEP Team understands the WHAT, it can plan for the WHO–that is this child with his or her unique needs. The Team decides how that child will be educated in the context of geenral ed; that is, what specialized instruction will be provided, what accommodations (or modifications), if any, will be needed, etc.

So, since 1997–let’s remember it’s first the WHAT; then the WHO.

I hope you find these comments helpful.

Sunday, January 28, 2007

The difference between “leveling the playing field” and “changing the game.”
Interesting and important issues arise around the country about students seeking test accommodations, such as on graduation tests, the SATs, and many other tests, including tests at the post-secondary level. See, for example, the story in the January 23 Sun Journal from Portland, Maine, about a lawsuit against the state board that administers the bar exam for future lawyers.

The article reports that two plaintiffs are seeking additional time on the bar exam, due to their disabilities. The plaintiffs’s attorney is reported to have said that the plaintiffs are not looking to get special treatment. Rather, they want simply to “level the playing field.”

“Leveling the playing field” is a popular metaphor these days. And who can be against that? Not many of us. We all seek fairness and equal opportunity for all students.

But what is it? What is “leveling the playing field?” It is giving students an opportunity to take the test with necessary accommodations that do not fundamentally alter the test. See last week’s blog.

To keep test results valid and meaningful, we need to be sure that a test maker specifies (i) what the purpose of the test is, (ii) what it is designed to measure, and (iii) how it is to be adminstered. These steps are vital to assure that test results actually measure what the test purports to measure; that is, that the results are valid. A test maker needs to instruct the educators and other who administer various tests about the above. As well, the students and parents at the K-12 level need to be notified. Ultimately, we who work in public education (and parents and students) need to be clear about which accommodations are allowed and which are not (because they would invalidate the purpose of the test).

If, for example, an exam is designed to measure how students perform under the pressure of specific time constraints, then providing extra time actually changes the game; i. e., it changes the test. It no longer measures how students perform under specific time constraints. It measures something else. The test may no longer be valid. Imagine, giving extra time for a student on a five-minute typing test. Doing so no longer measures how many words a student can type in five minutes. It measures something else. It’s no longer just leveling the playing field; it’s changing the game.

Important testing issues arise when, as in this timing example, accommodations actually DO alter the test fundamentally. The test becomes different test. And what then? What can the results mean?

In our standards-based public education system, if we are going to test students, as we now do all around the country, we need to be sure that our tests are those that people can rely on because they report valid results–what the test was designed to measure. It is important for test makers to distinguish clearly between leveling the playing field–an important goal–and changing the game–a troubling consequence of faulty test administration.

These issues matter. Faulty test adminstration does not lead to meaningful test results and ultimately, may lead to the loss of faith in testing programs.

Sunday, January 21, 2007

Here’s the difference between an accommodation and a modification
As I work with school folks around the country, I see many educators working hard to include children with disabilities in regular classes so that all children can learn well. It’s challenging and quite inspiring to see what people are doing. Often, the question arises about the legal requirements of grading and testing children with IEPs–when they are learning the same things as their peers or when they are learning something different–according to their own IEPs.

One discussion that’s useful is to be very clear about what we should call the changes that educators make for children with disabilities in regular classrooms–changes that are different from what other children do or get. To understand this, itls important to know the difference between between an accommodation and a modification. Here are three definitions that may help!

Adaptation–An adaptation is any change that teachers make for children with disabilities–whether they are accommodations or modifications.

Accommodation–An accommodation is a change that the student needs in order to participate in the class, learn the material, take the test, or any other activity and which does not fundamentally alter or lower the standard being taught and learned.

Modification–A modification is a change that the student needs in order to participate in the class, learn the material, take the test, or any other activity and which does fundamentally alter or lower the standard being taught and learned.

Each situation is different. Sometimes extra time is an accommodation, and sometimes, a modification. For example in a typing test (how many words per minute can the student type), extra time would be a modification. Sometimes if a teacher reads a test to a student, that may be an accommodation; but sometimes, it would be a modification (as in reading the reading tes
t to a student). Accommodations maintain the standard; modifications change the standard.

It’s important to know which is which and when. The IEP team needs to consider what is appropriate for the child and the IEP needs to reflect the team’s decisions.

Later postings will provide more details and some case examples about this important issue that educators deal with every day.

Tuesday, June 14, 2005

Miriam’s book is reprinted!
My book, Grades, Report Cards, etc…and the Law has been published for more than a year, and is generating excellent feedback. Educators seem to really rely on it as the develop new report cards and educate children in this standards-based environment. I am most gratified by this response!

“I love your book”
“The book is wonderful”

I am so glad that people are finding it useful and fun.

So, here is information about the book, along with the order form.

Grades, Report Cards, etc…and the Law
Miriam Kurtzig Freedman, M.A.,J. D.

…The Little Law Book that explains the requirements that educators, parents and officials need to know… in plain English

Grades, Report Cards. etc….and the Law is for people who want to create legal solutions for better schools—and prevent litigation. Following the first book in this series, Student Testing and the Law, here is the second Little Law Book! It provides practical guidance for all students—including students with disabilities. Topics include:

· Grades and report cards
· Honors
· Class rank and GPAs
· Diplomas and graduation
· And all, in a standards- based era

With this Little Law Book, you will learn how to–

· handle the legal requirements for grading. etc. all students.
· know the difference between accommodations and modifications.
· work comfortably with standards with all students and, in particular, students with disabilities.

Attorney Miriam Kurtzig Freedman consults and presents workshops and timely keynotes around the country, filled with insight and information. And all in practical plain English! She bridges the gap between law and education for people who seek and work for better public education for all students.


Grades, Report Cards, etc…and the Law

by Miriam Kurtzig Freedman, M.A., J.D.
(2005, Softcover, 8 ½ x 5 ½, 94 pp.)

1-4 copies $25.00 each
5-14 copies $21.00 each
15-34 copies $15.00 each
More than 35 copies To be determined

Above prices include book rate shipping/handling. Add 5 % sales tax to total order for books shipped to Massachusetts, or provide tax exempt certification. For more information, email Miriam@

Order Form


School or district:__________________________________________


Tax exempt certification number (if applicable):____________________

Quantity: Total Price _______Ship 1st Class? (Circle one) YES NO (Add $5 for each set of 10 books for 1st class mail.)

To order, send order form, purchase order, or check, payable to “School Law 1 2 3” to:

School Law 1 2 3
P.O. Box 960515
Boston, MA 02196

Monday, February 21, 2005

Hello School Law Bloggers
Hi Everyone,

Please excuse any technical problems that may come up here, as I join the digital age.

Anyway, over the next weeks and months, I’ll use this space to post commentary and links that will keep you up to date on critical issues in School Law, with a focus on testing, NCLB, special ed, and accountability.

If you like it, send me an email and join the discussion.

Thanks, Miriam

Sunday, February 15, 2004

Here’s some helpful information for schools that answers a common question:

Are public schools required to do additional testing to help students get “accommodations” on college entrance exams?


Guidance is provided by this recent Massachusetts Department of Education memo.