Special education advocates fear that a federal law giving states control of school accountability measures may result in excluding students with disabilities.

Under the Every Student Succeeds Act, state education agencies are allowed to decide for themselves the size of student subgroups – specialized populations within schools that often require additional support and that categorize students, most frequently, by race, income level, homelessness, and disabilities. The ideal subgroup size has long been a source of debate, but most agree that groups too small – under 10 – risk identifying individuals while groups that are too large – more than 20 – are too difficult for most schools to reach.

While many states are setting subgroup sizes at 10 or 15 students, eight states, including New York and California, have set a group size of 30. Texas has set a subgroup size of 25. For the special education subgroup, that means a school must have 25 or 30 students in each of the grades being assessed in order to count in the state accountability measure.

“As best we can figure, that will leave about half of the schools in New York outside of the accountability system,” said Candace Cortiella, the founder of the Advocacy Institute. “If you take those eight states plus Texas, you have now captured 40 percent of all kids with disabilities in the country because some of those states are so large. Kids with disabilities are not going to benefit very much from the provisions in ESSA.”

The Advocacy Institute and the National Down Syndrome Congress examined draft ESSA plans and sent state officials letters outlining their concerns.

In Delaware, they noted that proficiency rates on assessments for students with disabilities were coupled with high proficiency rates.

“We don’t know how DE will get students college and career ready [and] meet the 4-year graduation rate goal of 81.9 percent in 2030 if the goal is so low for proficiency by 2030. Also, there isn’t a commitment to keep these goals instead of adjusting them downward if targets aren’t met along the way,” they wrote.

ESSA’s retained a provision from its predecessor No Child Left Behind that mandates all students take the general education assessment except for 1 percent of all students who have the most severe disabilities, such as nonverbal students or those who can’t physically take the standard test. Advocates are pleased this cap remained. But Megan Whittaker, policy and advocacy manager for the National Center for Learning Disabilities, said many states are applying for a waiver to lift that cap.

“[ESSA] was intended to put kids with disabilities on the same level as general students,” she said, adding that funneling too many students to the less rigorous test would disrupt that goal.

Also of concern is the requirement that at least 95 percent of all students and students in each subgroup participate in annual assessments. The punishment to schools that fail to meet this standard, though, is significantly watered down from No Child Left Behind, in which schools would fail their adequate yearly progress assessment for not meeting participation rates.

“There’s just not the same level of liability,” Cortiella said.

Ricki Sabia, the senior policy advisor at the National Down Syndrome Congress who partnered with Cortiella on analyzing state plans, said what’s contained in ESSA could benefit special education students, but with states in charge of writing their own plans, it leaves a lot to chance.

“It’s not the law we’re worried about as much as the implementation of the law,” she said. “A lot of the plans that are being approved we feel are still lacking the pieces to ensure that there is a focus on kids with disabilities.”