USOE Letter Tells State Board All is Well, All is Well in Special Ed   4 comments

Below are two letters.  The first one is my response to the second, so you might want to skim the second one first.  But the second one is written in the style that George Orwell warned us about– “like a cuttlefish squirting out ink… (the great enemy of clear language is sincerity).”
That one, in essence, has the head of the Utah State Office of Education’s Special Education department telling the rest of the bureaucracy that the new No Child Left Behind reauthorization ruling from Secretary of Education Duncan won’t in any way hurt anyone in Utah; in fact, Duncan’s ruling doesn’t even affect Utah students, she says!  It’s her complete handwaving away of the rule itself, as well as an admission that it’s okay with her that our rights as parents and teachers in Utah are going away.  It’ s not keeping her up at night.
My letter says that Duncan’s rule for NCLB and his snipping away of the last vestiges of state authority over special education IS keeping me up at night.
(If you didn’t already read why, that’s here.)
Dear Glenna Gallo and Utah State School Board,
I have read a letter that was sent out to the USOE/USSB concerning Secretary Duncan’s “final rule”  concerning the end of state authority over special education that Duncan plans to take effect nationally September 15th.  [Pasted in full after this letter]
Here is a direct quote from your office:
“The recent regulation changes taking effect in September do not impact Utah students at all.”
I am stunned at this quote. I have read the Department of Education’s directive.  It certainly applies to every state if the unconstitutionally acting Secretary Duncan is to be taken seriously.
Here is the link.
Its summary states that the rule will “no longer authorize a State to define modified academic achievement standards and develop alternate assessments based on those modified academic achievement standards….”
Further down, the page promotes the idea that forcing the same curriculum (Common Core Curriculum aka College and Career Ready) –on all students, without differentiation for special education students, is a good idea:
“Including students with disabilities in more accessible general assessments aligned to college- and career-ready standards [Common Core] promotes high expectations for students with disabilities, ensures that they will have access to grade-level content, and supports high-quality instruction designed to enable students with disabilities to be involved in, and make progress in, the general education curriculum—that is, the same curriculum as for nondisabled students.”
How can the USOE claim that this will not affect Utah students?
There are two major battles to be fought here.  One is the battle for the children themselves, whose best interests are no longer to be determined (for testing nor for curriculum or standards) by their loving parents and teachers, but by the feds.  This is clearly not limited to testing, but to standards and curriculum as well.
The other is the fight for our local right to direct the affairs of our children’s lives as we see fit: the fight to defend the application of the Constitution in our daily lives.
By continuing to hold hands with the Dept. of Education, rather than to stand up against this takeover of our rights, the USOE and School Board and Governor are complicit with Secretary Duncan’s federalization of special education in Utah. 
Utah’s government (USOE/USSB) is freely giving away what is not theirs to give:  the people’s voice, the people’s power, the people’s authority over the lives and programs of their own children.  By not saying no, you have said yes.
I take this very, very seriously.  The power to make decisions for our children’s lives and any programs by which our children are molded –and from which few have any alternative pathways– is a Constitutional, sacred birthright in America.
You who are elected (or paid) to be the guardians of Utah’s public education system have a duty to be a voice  for US, to represent We, the People, We, the teachers, and We, the Students. 
By not saying no, and by sending out letters like this one, you are representing Secretary Duncan to us, rather than us to Secretary Duncan.  That is not right.
I implore you to open your eyes to see the lies of Secretary Duncan.  The title itself is a complete deception: “Improving the Academic Achievement of the Disadvantaged; Assistance to States for the Education of Children with Disabilities,” –while the text of the rule states, “to no longer authorize a state to determine. Does that title match that text? Assistance equals dictatorship?  Improvement equals dictatorship? 
It is ironic that the ESEA reauthorization was sold to Congress as a reduction in the federal educational footprint.  That was another sheer lie that should be obvious to everyone now.
I cannot stomach the ongoing tolerance of Utah’s educational leadership, that passes along, rather than stops, the bullying that flows from the Department of Education. Why has Utah’s education board and office been so willing to relinquish her own authority in these matters? 
It is time for those who have a conscience to take a stand.  Make a statement even if you cannot alter the course; take the public stand so that we know who is on what side of this fight over our children and our freedoms.
I suggest that you do something more than pass along dictator-like directives from Duncan to Utah’s districts. 
I would start by sending Secretary Duncan a letter of reprimand for attempting to assert such falsely gotten, pretended authority over us and over our children.  Perhaps our D.C. representatives will cosign.
We don’t get a second chance.  Failure to say no to this “final rule” means we lose this autonomy forever. 
Christel Swasey
Utah Teacher and Mother
Pleasant Grove
Here is the letter/email referenced above, that went out today or yesterday from Utah’s Special Education Director at USOE to the State Board and USOE:
Dear USOE Leadership and Utah State Board of Education,
In case you have been receiving concerned emails and phone calls regarding recent USDOE regulation changes taking effect September 15th that impact statewide assessments, here is some additional information, beyond that already provided by Superintendent Smith and Asst. Superintendent Nye (below).
ESEA used to allow states to create an additional state assessment, beyond the regular state assessment (in Utah, the SAGE) and the 1% assessment (in Utah, the DLM for math and ELA and UAA for science).  That additional assessment was referred to as the 2% assessment.  In other words, the SAGE would be used for 97% of students with disabilities, with the students with the most significant disabilities taking the 1% assessment, and 2% of students with significant disabilities (but who do not qualify for the 1% assessment) taking the 2% assessment.  Although the 2% option was removed in 2013 for states applying for an ESEA waiver, this did not impact Utah, as we have never had a 2% assessment, nor were there plans to develop one.  The recent regulation changes taking effect in September do not impact Utah students at all.
There is some misinformation on how students with disabilities participate in the appropriate statewide assessment.  Students with disabilities may participate in the 1% assessment (DLM and UAA) if the IEP team determines that they should not access grade level standards, and require instruction aligned to the Essential Elements (EEs) (alternate core standards).  You can find those EEs at and more information about the DLM and UAA at
Students with disabilities who do not receive instruction in the EEs receive instruction aligned to grade-level state standards, and as such participate in the SAGE, with the provision of appropriate IEP team-determined accommodations and/or modifications.   Special education is in place, and there are no planned changes to remove special education services or accommodations.  However, special education services are intended to supplement grade level general education instruction, not replace it, UNLESS the student is learning under the EE standards (again, students with most significant disabilities).   You can find more information about assessment participation for students with disabilities at
Please let me know if you have any concerns or questions.

4 responses to “USOE Letter Tells State Board All is Well, All is Well in Special Ed

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  1. Pingback: God, Science, & The Utah State Office of Education’s Puzzling Stance Regarding High Stakes, Common Core Testing of Special Education Students. | Dr. Gary Thompson

  2. Pingback: God, Science, & The Utah State Office of Education’s Puzzling Stance Regarding High Stakes, Common Core Testing of Special Education Students. | COMMON CORE

  3. Above is basically the same response I got from the Missoula MT School District Superintendent. Today, Aug 28 from the same local talk radio show mentioned, I learned that the Common Core assessment test results from last year have still not been released. Possible reason that the results were so poor? And they’re waiting for this Fed mandate to kick in?
    Read from bottom up. (Jon King is the co host and producer of KGVO 1290AMTalk Back radio show)

    On 8/24/2015 3:09 PM, Elena wrote:
    > Thank you Mark,
    > for your quick response. Agreed that the MCA and ARM are lengthy. However bottom line, are you saying that the MCA and ARM govern and remain in force over and above the Federal mandates re special ed under Common Core ? If so then please explain this:
    > 20-7-403. Duties of superintendent of public instruction. The superintendent of public instruction shall supervise and coordinate the conduct of special education in the state by:
    > Case Notes:
    > State/Federal Law Conflict — Role of Superintendent of Public Instruction: When state regulations conflict with federal regulations, state regulations yield to federal regulations. In re the “A” Family, 184 M 145, 602 P2d 157, 36 St. Rep. 1898 (1979).
    > In connection with this:
    > ED-2012-OESE-0018-0160 – Improving the Academic Achievement of the Disadvantaged; Assistance to States for the Education of Children with Disabilities- Federal Notice
    > SUMMARY:
    > The Secretary amends the regulations governing title I, Part A of the Elementary and Secondary Education Act of 1965, as amended (ESEA) (the “Title I regulations”), to no longer authorize a State to define modified academic achievement standards and develop alternate assessments based on those modified academic achievement standards for eligible students with disabilities. In order to make conforming changes to ensure coordinated administration of programs under title I of the ESEA and the Individuals with Disabilities Education Act (IDEA), the Secretary is also amending the regulations for Part B of the IDEA. Note: Nothing in these regulations changes the ability of States to develop and administer alternate assessments based on alternate academicachievement standards for students with the most significant cognitive disabilities or alternate assessments based on grade-level academic achievement standards for other eligible students with disabilities in accordance with the ESEA and the IDEA, or changes the authority of IEP teams to select among these alternate assessments for eligible students.
    > DATES:
    > These regulations are effective September 21, 2015.
    > On 8/24/2015 1:17 PM, Mark Thane wrote:
    >> Good afternoon, Elena-
    >> Education in the state of Montana is governed by Montana Code Annotated (statute) and the Administrative Rules of Montana (ARM). The statute and rules are lengthy, but I did copy one specific section for your review (below). This is the law in Montana and remains in force. Essentially, a student must be evaluated with multiple measures before they are identified for consideration as a student in need of special education services. A Child Study Team (CST) reviews all of the measures and determines if a student meets the criteria and should be considered to have a disabling condition. The Child Study Team includes the parents, the classroom teacher, a special education teacher, the school psychologist and a building administrator (principal). The determine requires careful examination of the data and student performance and his/her response to attempted interventions. A single test is not sufficient to be used to make such a determination. This determination is NOT in any way
    >> related to Common Core, with the possible exception that the Smarter Balanced Assessment (Montana’s adopted state assessment) may be one piece of data that is included in the discussion.
    >> The section I have copied below is a single section referencing a single disability category. However, it gives you a flavor of what is contained in the Administrative rules of Montana.
    >> Mark
    >> SPECIAL EDUCATION 10.16.3014
    >> 10.16.3012 CRITERIA FOR IDENTIFICATION OF STUDENT AS HAVING COGNITIVE DELAY (1) The student may be identified as having cognitive delay if the student has a significantly subaverage general intellectual functioning and corresponding deficits in adaptive behavior and educational performance, especially in the area of application of basic academic skills in daily life activities.
    >> (2) “General intellectual functioning” means performance on a standardized intelligence test that measures general cognitive ability rather than one limited facet of ability.
    >> (a) “Significantly subaverage general intellectual functioning” is defined as two or more standard deviations below the population mean on a standardized intelligence test. Error in test measurement requires clinical judgment for students who score near two standard deviations below the mean.
    >> (b) The presence of subaverage general intellectual functioning must occur during the developmental period defined as the period of time between conception and the 18th birthday.
    >> (3) Deficits in adaptive behavior is defined as significant limitations in the student’s effectiveness in meeting the standards of personal independence, interpersonal communication, and social responsibility expected for the student’s age/grade peers and cultural group as measured by standardized instruments or professionally recognized scales. (History: 20-7-402, MCA; IMP, 20-7-401, 20-7-403, MCA; NEW, 1993 MAR p. 1913, Eff. 8/13/93; AMD & TRANS, 2000 MAR p. 1048, Eff. 7/1/00.)
    >> —–Original Message—–
    >> From: Elena []
    >> Sent: Monday, August 24, 2015 12:58 PM
    >> To: Mark Thane
    >> Cc: Jon King
    >> Subject: Common Core Question
    >> Afternoon Mr Thane,
    >> Thank you for being a monthly guest on the local talk radio show, KGVO Talk Back.
    >> Just wondering what’s your opinion and comment concerning this:
    >> Effective Sept 2015: Feds Remove State Authority Over Special Needs Students and Redefine Who is Special Needs | COMMON CORE
    >> Thank you in advance for your time and response.
    >> E. Gagliano

  4. That response was a complete, mindless, confusing mess of acronyms and junk science.

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