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.