As part of the college application scandal, today’s Wall Street Journal reports that more students use SAT accommodations. I’m quoted in that article.

Yet, the key reality I focus on is not about students or parents–it’s about these huge and wealthy testing companies, the College Board (which administers the SAT) and the ACT. Sixteen years ago, they created the totally predictable pickle we’re now. At that time, they initiated nonstandard so-called “standardized” tests–if you can believe that! They invalidated their very own product! And the public continues to pay for it dearly with actual dollars and much anxiety.

What happened 16 years ago? In 2003 these companies decided to stop notifying colleges and schools when a student took the test in a NONstandard way, as with extended time. Mind you, it is not illegal provide such notice (called “flagging.” ) Valid tests continue to do it–as they should. Check out my 2003 story about this, “Disabling the SAT.” A sorry tale indeed.

It was obvious then that this development would become a loophole. Here’s what I wrote at the time:

“The rates at which students receive testing accommodations also vary dramatically by zip code, with well-to-do, empowered parents being able to pressure the system into giving their children extra support. ….

The (College) Board’s decision to end flagging is likely to exacerbate these problems. Now that there is no consequence for taking the SAT with extra time, so-called diagnosis shopping will undoubtedly become even more common among the well heeled, who can afford the privcate psychologists and the pricey lawyers….”

Now this freebie loophole has blown up.

Let’s not blame parents. Let’s not blame students. Let’s finally be honest and blame the companies for no longer providing tests that are standardized.

I’ve written many times about the options these companies have–these include bringing back the flags, ending timing for anyone (thereby creating a different test–let’s be honest about this), creating a new test, no longer having these tests, etc., etc. The public also has options which it has already exercised, as more colleges make these no-longer-standardized tests “optional.”

Let’s see what the College Board and the ACT finally do about the mess they created. I trust and hope they will do the right thing and make standardized tests –standardized– again.

The misuse of SAT and ACT accommodations is an important and unfortunately wholly predictable story as we see in the current college admissions scandal.

As a school attorney, I see the current scandal to have been predictable and waiting-to-happen ever since 2003, when the College Board and ACT stopped flagging test results that had been taken under non-standard conditions. And yes, it is gameable.

My 2003 story, “Disabling the SAT,” actually predicted the current mess:

“The rates at which students receive testing accommodations also vary dramatically by zip code, with well-to-do, empowered parents being able to pressure the system into giving their children extra support…The Board’s decision to end flagging is likely to exacerbate these problems. Now that there is no consequence for taking the SAT with extra time, so-called diagnosis shopping will undoubtedly become even more common among the well heeled, who can afford the private psychologists and pricey lawyers.”

And, so, 16 years later, here we are!

I don’t blame parents for trying to “help” their kids. That’s what parents do. I blame these companies for creating this loophole. In my law practice, I saw parents becoming savvier, making their requests earlier (in junior high school or early in high school) to have a history of “extended time” for the College Board or ACT to act on. The loophole was provided for them by these companies. Who can blame them for using it?

But my concern over the years has been elsewhere. It’s been about these tests themselves. With “nonstandard” accommodations–mostly extended time—these tests are no longer standardized and no longer valid because they don’t measure what they purport to measure. That is, how a student performs in a timed situation. It’s time to get honest and real about this.

So why do these costly and by now uninterpretable tests still have such sway? Good question!

In terms of the misuse of accommodations, the numbers don’t add up. Alas, hard data from the College Board is not readily available. So, working backward, starting with the fact that 13% of students have “IEPs” and an estimated 2-3% have “504 plans.” There is some overlap in these two programs. And, of course, many students with disabilities who do NOT take these tests at all!

Yet, we have anecdotal stories that in some upscale suburbs close to 18-20% of students have extended time and in some private schools–around 40%! And, one can only imagine that in low income communities, those numbers are very low. Equity? Fairness? Honesty? Test validity? In an ungameable situation these numbers just couldn’t be!

What to do about this? These companies have choices. One obvious question becomes: when will they throw in the towel and stop timing any of these tests? That sounds easy. But NOT so fast…

….. because we know that there’s no free lunch. When and if they do stop timing these tests, the tests will be easier to take and less anxiety-producing. Here again, careful what you wish for as we will witness yet another notch in the lowering of standards in our schools and colleges because, in the real world, timing IS an important attribute and skill set in many areas of modern life. Pick your poison. Another story for another day.

Of course, these companies could go back to flagging test results given under non-standard conditions which would immediately wipe out this loophole. That is a perfectly valid and still legal option. To implement it, however, the companies would need good hard evidence of why they time these tests. Why? Why? Why? We still don’t have a clear answer to that basic question. And that’s where this story needs to start. Why are these tests timed? What important and fundamental knowledge or skills they measure that are time-dependent? This question needs an answer.

Or, we could throw up our hands and stop using these no-longer standardized tests—as many colleges already have. No testing! Some people would be relieved. I am not one of them, as it would mean yet another notch in our lowering standards. I would vote to bring back the flags and force the companies to explain why these tests are timed. Convince us that timing is essential. If they can’t do that, they should stop timing anyone and stop the madness.

A great question. The article does a good job of answering it…. in real time (while ignoring the 2003 back story when these big companies (the College Board and the ACT) stopped “flagging” test results given with non standard accommodations. See my 2003 tale about this (what I believe to be a) giant misstep by these companies.

Here’s a key sentence: “Particularly glaring in the 204-page indictment is that the majority of the children, whose parents were charged Tuesday, had seamlessly secured disability accommodations on their standardized tests…”

Glaring indeed. As a school attorney, I’ve been writing about this waiting-to-happen-scandal for years.

The accommodations loophole (started in 2003 when the SAT and ACT stopped “flagging” test results given under nonstandard conditions)…. has been an invitation to misuse. This story confirms that, in some circles, it’s become a racket.

But even this angle of the scandal misses another big and important story. My chief concern has been that the use of non-standard accommodations (like 50% extra time or 100% or having the right to take the test over two days or whatever) leads to tests that are no longer standardized. Timed tests are, by definition, supposed to be TIMED. Thus, they are no longer vaild.

So, honestly, what is the point? Why are we still taking these costly and anxiety producing tests–when they are no longer standardized…… and their results cannot be honestly interpreted or compared from student to student.

So, the obvious question becomes: when will these companies throw in the towel and stop timing any of these tests?

Not so fast….. because, of course, there’s no free lunch. When they do stop timing these tests, the tests will (undoubtedly) be more costly as they’ll need more proctors, but most importantly, the tests will be easier and less anxiety-producing. And again, we will be witnessing another notch in the lowering of standards in our schools and colleges…. Pick your poison! Another story for another day….

Of course, these companies could go back to flagging test results given under non-standard conditions, a perfectly valid and legal option–for which the companies would need evidence of why these tests are timed. Why? Why? Why? We still don’t have a clear answer to that basic question.

In the meantime, please see my old 2003 story–when the SAT and ACT stopped flagging test results given with “nonstandard” accommodations, most often extended time. It’s a sad tale–started perhaps with good intentions–that has lead to misuse (now, even abuse), loss of trust in these tests, and unfairness—among its many unfortunate side effects.
Here’s the link:
Read this and weep on so many levels with a story with so many strands…. For me, let’s focus on the abuse of accommodations for the SAT and ACT. Wealthy parents get doctors to write letters that the child is disabled and voila, according to this story, the child gets extra time–maybe time and a half or the right to come back the next day to finish the test. Really? What can this test possibly mean? how can it possibly be a standardized test? It can’t be.

The question I’m left with is: when will these companies stop timing anyone? Since these tests are no longer standardized, why do we still use them and pay so much for that priviledge….  Ending the timing of these tests will avoid the next scandal on this front.

Then we can move on to all the other scandals in this story. Read it and weep, indeed.



As a school attorney I believe this to be true. As a parent, as well. And you? I suspect you believe it also. Here’s a Wall Street Journal op-ed by a psycholanalyst…. on this very vital issue.

I am a concerned observer– not an expert– in this field. What is also concerning as well is the long term effects on these children (mostly boys) who grow up.. Where do the meds take them?

I spoke recently to a psychiatric nurse who treats young homeless men– many of whom started on their drug use/abuse with these meds given to them in schools. Is there a connection? Some research points to that. It’s very concerning–a tragedy that needs to be studied widely.

We should not be doing harm when we’re trying to do good.

Education Week LETTER

Let’s Have a National Discussion
February 12, 2019

To the Editor:

“Special Education’s Future,” one of Education Week’s 10 Big Ideas (January 9, 2019), suggests that the broken special education system is flawed in many ways, including issues with “child find,” eligibility labels, response to intervention, funding, and more. I hope the article spurs a national conversation and true systemic change for all students—disabled and not.

The article raises questions that Congress needs to answer, including one about the cost of special education, which is spot on. We need to know the real costs of general and special education for these students. However, the question raised about inequalities in due process doesn’t go far enough, as it assumes that a more-equitable due process is the path forward.

Of course, schools need equity, but it’s time to remove litigation from classrooms and rebuild effective schooling for all. The current one-size-fits-all legal system no longer works well, especially as students fall into two groups identified in the U.S. Supreme Court decision, Endrew F. v. Douglas County School District: those with severe/profound needs and the vast majority with mild/moderate needs who are mostly in general education classrooms. It’s time to create alternatives to due process for the latter.

In terms of inclusion, do policies help or hurt? To answer this, we must focus on all students—general and special education—especially as data are often incomplete, invalid, or misleading. Why do we continue to label students when it often impedes good teaching? Consider “wait to fail,” whereby students aren’t served until after they fall far behind and get labeled. This contradicts solid early-intervention research.

I agree that a revival of activism could fix what’s broken. Let’s get going!

Miriam Kurtzig Freedman
Attorney and Author

Vol. 38, Issue 26, Page 26

Published in Print: February 13, 2019, as Let’s Have a National Discussion

The big question he asks is whether schools will do what’s needed. That’s the provocative question that my colleague, Kalman R. “Buzzy” Hettelman puts out there for us all. The message is: The earlier the intervention the better.

It’s a good provocative read. His forthcoming book, Mislabeled as Disabled, focuses on the children who are not well served and do not learn to read.

Thanks for staying with it, Buzzy.

Here’s a great way to start the new year! An excellent article by Christina A. Samuels, “Special Education’s Future” in Education Week. I hope it helps us gain momentum for a national conversation to fix all that’s broken in special education.

The article gave me many “aha” moments as it sounds like what I’ve been writing for many years and what’s in my recent book, Special Education 2.0–Breaking Taboos to Build a NEW Education Law! Amazing!

Samuels highlights the many years of activism that got us here today and challenges us with “it will take a revival of that same spirit to fix what is broken in today’s implementation.” She’s right.

The piece lays out some of the broken features and challenges of special education, starting with President Ford’s prescient signing statement—which foretold many of them.

It explains flaws in “child find” and an eligibility system that requires children to have a “label”—often of questionable validity—to be served. It dares to cite research indicating that we may be under identifying minority children instead of over identifying them—as the press continues to report. Among other challenges, it questions the effects and effectiveness of the push for response to intervention (RTI), as well as the costs of educating children with disabilities, which are largely shrouded and unknown.

Ms. Samuels ends with three questions to pose to Congress when it takes up reauthorization. These questions are a good start but, as I see it, don’t go far enough. Let me explain.

1. The first question about costs is right on! It’s vital that we know what this system really costs. I appreciate the need to account for general ed (inclusion) and other intervention costs that these students receive.

2. The second question–about staffing–is beyond my expertise and I will leave it aside for now.

3. The third question about equity in the due process arena is too ‘in the box’ because it assumes that the current system is also the way forward. We just need to make it more equitable. While I agree that public schools need to be equitable for all, I ardently don’t agree that due process, litigation, lawyer-driven programming, etc. is how to move forward.

While due process may have been effective to end the 1970’s “access” issues, it is no longer needed. No one is excluded these days! All students with disabilities are served—some 14% of all students (even as the law contemplated 10%).

Given today’s reality, it’s time to end that legal system for the 80-90% of students with mild/moderate needs. Litigation (and the ever-present fear of litigation) needs to come out of our classrooms. Educators, administrators, and researchers, not lawyers and legislators, need to build a new approach so that teachers are free for actual teaching and learning for all students.

To the three questions posed in the article, I would add these two for now.

4. We need to acknowledge today’s reality of the two groups of students with disabilities. Please see my recent book, the Journal of Law and Education and

It’s time to seriously ask: Why do we still need the one-size-fits-all 1975 due process law for all students with disabilities, especially for the 80-90% of students with mild and moderate needs discussed above? I believe we don’t. Instead, for disputes between schools and parents, it’s time to explore other dispute resolution models for all children, whether disabled or not, that are child-and education-centric, not money or legalistic/rights-driven.

The 10-20% of students who have severe and profound needs also need a better system. Let’s convene a task force of stakeholders from all parts of public schools to develop a way forward.

5. It’s time to seriously question the current system for finding students “eligible” for services—which is often flawed and too late. As well, current “labeling” often interferes with teaching. For example, we still use the “wait to fail” approach–whereby students aren’t found eligible for special education until they have fallen far behind–an approach that directly contradicts research-based early intervention and continues the legalistic and damaging approach.

I’ll stop here. There’s much to digest in this short piece. It’s a good read.

But one more thing. While we’re thinking big, let’s be honest. It’s really time to abandon legal hoops in a 40+ year old system and move to a system that focuses on teaching and learning, that works for all students. One such approach is competency based schooling where all students (from the most advanced to the most challenged) receive schooling to take them from where they are to where they need to be.

Your thoughts? Here’s hoping that with this article and all of our efforts, we gain momentum for our national conversation and a true rebuild. Happy 2019!

Here’s a great article to start 2019. Thanks you, Joanne.

Teaching real information and skills matters–especially for students who don’t get “enrichment” at home.

Yet, our current education fads steer us in the wrong direction–e.g., no need to teach phonics, no need to teach facts (they can look it up in Google), no need to know the number facts, no need to memorize poetry, no need for the hard work of learning.

All that is wrong–especially for students who most need to learn at school.

Hopefully these fads will fade fast. We can only hope. Happy New Year!