FOR RELEASE: 
February 1, 2001

FOR MORE INFORMATION CONTACT:

Jonathan Hutson, TLPJ, 202-797-8600 x 246
Jeffrey P. Foote, TLPJ, 503-228-1133
Sid Wolinsky or Alison Aubry, DRA, 510-451-8644

TLPJ AND DISABILITY RIGHTS ADVOCATES REACH SETTLEMENT WITH STATE OF OREGON OVER ‘HIGH STAKES’ EDUCATIONAL TESTING

State to Implement Accommodations for Children with Learning Disabilities

Lawyers for children with learning disabilities announced today the release of an expert report and recommendations on the impact of high stakes testing on students with learning disabilities, as well as the settlement of a class action lawsuit against the Oregon State Board of Education which had alleged that Oregon’s assessment system discriminated against learning disabled students. The experts’ 42-page report, which contains 30 recommendations on how to ensure that students with learning disabilities are treated fairly with regard to high stakes tests, formed the basis of the settlement of the class action, Advocates for Special Kids v. Oregon State Board of Education. The lawsuit was filed in February 1999 in Federal District Court in Portland on behalf of parents and their children by Disability Rights Advocates (DRA) and Trial Lawyers for Public Justice (TLPJ).

"High stakes tests" are tests that are used to make decisions with important consequences for students, such as placement in gifted and talented programs, eligibility for honors or advanced placement classes, promotion from one grade level to another, graduation from high school, and admissions decisions and scholarship awards to college.

According to lawyers for the plaintiffs, both the expert report and the settlement are unprecedented and have national implications. "Under the settlement, Oregon will take extensive steps to modify its current testing system so that students with learning disabilities will not be tested on their disabilities and instead will be able to demonstrate their abilities," said Alison Aubry, an attorney with DRA. "By entering into this constructive resolution, Oregon has put itself at the forefront of treating all of its students fairly," she said. "Oregon will be providing much broader accommodations to students with learning disabilities, and will also be providing an alternative to the standard assessment for those learning disabled students who are disadvantaged by the regular assessment."

The parents and students who brought the lawsuit in Oregon expressed their satisfaction with the settlement and the expert report. Cathy Wyrick, a Portland mother of one plaintiff, said: "We filed this case because our children were in danger of having their educational opportunities destroyed by these tests. Smart and talented students were failing the tests because they weren’t provided with the accommodations that they needed in order to show their actual knowledge. With this settlement, kids with learning disabilities will now have an equal chance on the assessments."

The settlement adopts the recommendations issued by a neutral panel of experts who were appointed by the parties in the lawsuit to study Oregon’s assessment. The panel consisted of four prominent educators and researchers from across the country, and a retired Oregon Supreme Court justice who acted as the facilitator. The panel was charged with reviewing Oregon’s testing system as it relates to students with learning disabilities, and to make recommendations on policies and procedures needed to ensure that learning disabled students have an equal opportunity to participate in the assessment system. The panel received extensive amounts of information from the State and the plaintiffs, and studied the assessment system for approximately one year before issuing their recommendations.

According to DRA, this is the first time an expert panel has been convened to analyze a testing system specifically with regard to the impact on students with learning disabilities. "Although virtually every state in the nation has adopted or plans to adopt high stakes tests, no one until now has focused on how these tests affect students with learning disabilities," said Sid Wolinsky of DRA. "Oregon should be commended for agreeing to jointly appoint a panel to specifically study the impact of Oregon’s high stakes assessment on learning disabled students," he continued. "The panel’s work will be invaluable not only in Oregon, but across the country because it lays a blueprint for all states to follow in order to make sure that their assessment systems are fair to learning disabled students."

The expert panel’s report was distributed as part of Disability Rights Advocates’ new publication, Do No Harm: High Stakes Testing and Students with Learning Disabilities. Do No Harm analyzes the issues surrounding high stakes testing and students with learning disabilities, including the legal implications of such tests and what safeguards are necessary to protect the rights of learning disabled students. Do No Harm is available online at www.publicjustice.net.

Jeffrey P. Foote, a Portland lawyer with Trial Lawyers for Public Justice, emphasized the national implications of the settlement and the expert report. "The President and Congress have both announced plans to increase high stakes testing at all levels of education," observed Foote. "Unfortunately, nowhere in the debate has there been any discussion of or attention to the needs and rights of students with learning disabilities," he said. "High stakes tests can be extremely harmful to disabled students because they are generally developed and implemented without any attention whatsoever paid to the impact of these tests on students with disabilities," he continued. "As a result, the tests often directly test the area of a student’s disability and test students on material that they have never been taught." Foote concluded, "Now, with the expert report and the settlement in Oregon, there is a model for states to follow with respect to how learning disabled students should be tested in a high stakes system."

Highlights of Expert Report

1. Students with learning disabilities must be provided with a broad list of accommodations on assessments, and must allowed to use any accommodation that they use in the classroom if the accommodation is listed in a student’s Individualized Education Program or Section 504 Plan. A state should only disallow an accommodation if there is evidence to show that the accommodation invalidates the score interpretation.
   
2. States must provide an "alternate assessment" – different from the standard testing assessment – to any learning disabled student who is disadvantaged by the standardized testing because of his or her learning disability. The alternate assessment must "count" in the same manner as the standard testing, and students who take the alternate assessment should not be penalized in any way for participating in the alternate assessment.
   
3. An assessment system must not directly test a student’s learning disability (for example, testing spelling for dyslexic students) and make that component essential to passing the assessment.
   
4. Assessments should not be used to make high stakes decisions for disabled students. Thus, a student with a disability should not be prevented from graduating, retained a year in school, or shut out of advanced placement and honors classes on the basis of poor performance on a standardized testing assessment.
   
5. States should establish comprehensive appeals processes so that parents and students can challenge any aspect of the testing system that they regard as unfair, including the disallowance of reasonable accommodations on the assessment.
   
6. States should provide extensive training and information to parents, students, and educators regarding the assessment system and options for participation for disabled students.
   
7. States need to conduct research and studies regarding the psychometric validity and reliability of the assessment system with regard to students with learning disabilities. This research should include studying the effect of accommodations on the assessment.
   
8. Whether a student requires accommodations or an alternate assessment should be determined by the student’s Individualized Education Program (IEP) or Section 504 team. These teams are comprised of the student’s teachers and parents, and are the people most knowledgeable about what a student will require in order to participate in the testing system.

The Oregon settlement includes each of the above provisions, and also provides for the appointment of a facilitator who will monitor the State’s compliance with the agreement. The settlement resulted from extensive negotiations presided over by Federal Judge Edward Leavy of the Ninth Circuit Court of Appeals. The settlement will be presented to Judge Garr King of the U.S. District Court in Portland for approval.

###

Disability Rights Advocates, www.dralegal.org, is a non-profit public interest law center in Oakland, CA, which advocates for people with disabilities to facilitate their full and equal participation in all aspects of contemporary life.

Trial Lawyers for Public Justice is the only national public interest law firm dedicated to using trial lawyers’ skills and resources to advance the public good. Founded in 1982, TLPJ utilizes a nationwide network of more than 2,200 outstanding trial lawyers to pursue precedent-setting and socially significant litigation. It has a wide-ranging litigation docket in the areas of consumer rights, worker safety, civil rights and liberties, toxic torts, environmental protection, and access to the courts. TLPJ is the principal project of The TLPJ Foundation, a not-for-profit membership organization. It has offices in Washington, DC, and Oakland, CA. TLPJ’s State Coordinator for Oregon is Kathryn H. Clarke, 503-224-7963. Copies of the expert panel’s report Do No Harm are available online at www.publicjustice.net.

^^ BACK TO TOP ^^