This material was originally presented at the 4th Annual Best Practices in Special and Regular Education Conference held in Concord, New Hampshire, on September 27 & 28, 2001. The conference was sponsored by the New Hampshire School Administrators Association (NHSAA), the New Hampshire Association of Special Education Administrators (NHASEA) and the New Hampshire Department of Education.

A Word of Caution

This material is designed to provide educators with a general understanding of the law as it pertains to the grading of students. You are strongly encouraged to seek a legal opinion from the school district's legal counsel regarding any specific case.

I. Overview

The purpose of this material is to provide the general educator with a working knowledge of his or her obligations under the IDEA and Section 504 to provide students with disabilities equal opportunity to learn and receive a passing grade.

II. The Impact of IDEA Requirements on Grading

The IDEA does not specifically address the issue of grading students with educational disabilities. However, the incorporation of the inclusionary model in the 1997 reauthorization of the IDEA, has a profound impact on the question of how to provide an appropriate education for special education students while at the same time maintaining high academic standards for all students.

The 1997 reauthorization now requires a justification from the IEP Team as to why a student is not participating in the general education class and curriculum. To the extent possible, educators are required to afford special education students opportunity to participate in the general curriculum. This mandate must be implemented under pressure from the standards-based school reform movement that seeks to improve academic excellence for all students.

Along with the inclusionary model comes the requirement, as of July 1, 1998, that students with disabilities are to be included in statewide assessments. In summary, the IDEA reauthorization creates a general presumption that students with disabilities will not only "participate" in the general curriculum to the maximum extent possible, but will also be held to standards of accountability. This presumption is bolstered by the Congressional criticism that the "implementation of IDEA in the past has been impeded by low expectations . . ." 20 U.S.C. §1401(b)(44).

Grading also has implications on whether or not a student advances to the next grade level. The Federal Regulations address the need for students to meet standards in order to move to the next grade level. 34 CFR Part 300, Appendix A to Part 300, Federal Register, Vol. 64, No. 48, page 12472, states that:

"Public Agencies often require all children, including children with disabilities, to demonstrate mastery in a given area of the general curriculum before allowing them to progress to the next level or grade in that area. Thus, in order to ensure that each student with a disability can effectively demonstrate competencies in an applicable area of general curriculum, it is important for the IEP Team to consider the accommodations and modifications that the child needs to assist him or her in demonstrating progress in the area."

These two concepts, accommodation and modification, have direct implications for how we grade and evaluate special education students. Therefore, it is important for the educator to understand the difference between an accommodation and a modification.

A. Accommodation defined

An accommodation is a change in the course, standard, test preparation, location, timing, scheduling, expectations, student response, and/or other attribute which provides access for a student with a disability to participate in a course, standard or test which does not fundamentally alter or lower the standard or expectation of the course, standard or test." See Guidelines for the Promotion and Retention of Special Education Students, California Dept. of Education, http://www.cde.ca.gov/spbranch, (8/23/2000).

Simply put, accommodations are "outside the body," that is, physical or environmental changes around the student. Teachers usually refer to accommodations as good teaching strategies.

Some examples of accommodations are as follows:

Pacing: extending/adjusting time; allowing frequent breaks; varying activity often; omitting assignments that require timed situations.

Environment: leaving class for academic assistance; preferential seating; altering physical room arrangement; defining limits (physical/behavioral); reducing/minimizing distractions (visual, auditory, both); cooling off period; sign language interpreter.

Presentation of Material: emphasizing teaching approach (visual, auditory, tactile, multi); individual/small group instruction; taping lectures for replay; demonstrating/modeling; using manipulatives/hands-on activities; pre-teaching vocabulary; utilizing advance organizers; providing visual cues.

Materials and Equipment/Assistive Technology: taping texts; highlighting material; supplementing material/laminating material; note taking assistance/copies from others; typing teacher's material rather than using handwriting on board; color overlays; using calculator, computer, word processor; using Braille text; using large print books; using decoder for television and film; having access to any special equipment.

Grading: giving credit for projects; giving credit for class participation.

Assignments: giving directions in small, distinct steps; allowing copying from paper/book; using written back-up for oral directions; adjusting length of assignment; changing format of assignment (matching, multiple choice, fill-in-blank, etc.); breaking assignment into series of smaller assignments; reducing paper/pencil tasks; reading directions/assignments to students; giving oral/visual cues or prompts; allowing recording/dictated/typed answers; maintaining assignment notebook; avoiding penalizing for spelling errors on every paper.

Reinforcement and Follow-Through: using positive reinforcement; using concrete reinforcement; checking often for understanding/review; providing peer tutoring; requesting parent reinforcement; having student repeat/explain the directions; making/using vocabulary files; teaching study skills; using study sheets/guides; reinforcing long-term assignment timelines; repeating review/drill; using behavioral contracts/check cards; giving weekly progress reports; providing before and/or after school tutoring; conferring with student (daily, bi-weekly, weekly, etc.).

Testing Adaptations: reading test verbatim to student (in person or recorded); shortening length of test; changing test format (essay vs. fill-in blank vs. multiple choice, etc.); adjusting time for test completion; permitting oral answers; scribing test answers for student; permitting open book/notes exams; permitting testing in isolated/different location.

See "To Accommodate, To Modify, and to Know the Difference," Hayes, Nakonia, www.newhorizons.org/spneeds_hayes.htm

B. Modifications Defined

A modification is a change in the course, standard, test preparation, location, timing, scheduling, expectations, student response, and or other attribute which provide access for a student with a disability to participate in a course, standard or test, but which does fundamentally alter or lower the standard or expectation of the course, standard or test. Id.

Simply put, modifications involve structural, cognitive change in the level of the material. The following are examples of modifications:

Presentation of Subject Matter: utilizing specialized curriculum written at a lower level of understanding.

Materials and Equipment/Assistive Technology: adapting or simplifying texts for lower level of understanding; modifying content areas by simplifying vocabulary, concepts and principles.

Grading: modifying weights of examinations.

Assignments: lowering reading level of assignment; adapting worksheets, packets with simplified vocabulary.

Testing Adaptations: reducing reading level of test. Id.

Decisions regarding the "accommodations and modifications that the child needs to assist him or her in demonstrating progress," must be made on an individual basis by the IEP Team. A failure to make proper accommodations and modifications sets the student up for failure in the general curriculum. A failure to make proper modifications and accommodations enhances the risk of behavioral issues with the student.

III. The Impact of Section 504 on Grading Requirements

While the IDEA provisions indirectly impact grading, Section 504's nondiscrimination provisions directly impact the grading of students. Section 504 protects all students, including educationally disabled students. It prohibits discrimination against a student with a disability on the basis of that disability, providing that:

"No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance." 29 U.S.C. §794(a).

The goal of Section 504 is to provide equality in opportunity. The hallmark of Section 504 is accommodation. The Section 504 Plan seeks to offer reasonable accommodations in order to provide equality in opportunity. Section 504 does NOT require that an educational institution lower its educational standards. However, Section 504 does require that with respect to grades, class ranking, honor rolls, graduation and diplomas, students with disabilities must be treated the same as all other students. See 34 CFR Part 104, §104.4. Section 504 also requires that the District provide a free appropriate education at public expense [FAPE] to an otherwise qualified individual with a disability. Id. at Sections 104.31-104.36.

IV. The Basic Rules

There are some basic rules that the educator should apply to the grading of a special education student. These rules are as follows:

A. All Students Are Entitled to a Grade

If a student is to receive truly an equal opportunity, he or she should be given the opportunity to receive a grade. If the IEP does not reference any grade modifications, the assumption by the Office for Civil Rights is that the student will be graded in accord with the school's general grading standards. Thus, there should be no informal grade modifications outside of those established through the IEP team process. Simply put, students with disabilities should receive grades and credit in the same manner as other students when they complete the same courses as other students.

B. All Students with Disabilities Are Entitled to Grades That Reflect the Level of Work They Are Capable of Completing, Consistent with the Iep Authorized Accommodations and Modifications to the Core Curriculum

This rule is true regardless of whether or not the student is receiving services in a regular or special class. This basic rule only works effectively if the IEP Team sets academic standards that will balance the student's exceptional needs with challenging academic levels.

C. High, Low or Modified Grades May Be Given to Students with Disabilities as Long as Those Grades Are Available to All Students

A student's grade may not be modified solely on the basis of his or her special education status. To do such is to create a discriminatory classification. It is permissible to give modified grades, so long as the modified grades are available to all students, not just students in special education.

Any modification should be reflected in the IEP and should be directly related to the student's disability. If the modification is so extreme that it significantly alters the assignment or assessment, then it should be identified as an alternative assignment or assessment. Any such alternative assignments or assessments should be stated in the IEP and should relate directly to the student's disability.

When an IEP Team determines that a student with a more severe disability can not attain the school's content standards for a given course despite accommodations and modifications, then it is proper for progress toward IEP goals to be considered an appropriate measurement for grading.

D. Modified Grades May Be Identified as Such on Report Card or Transcript as Long as the Student's Special Education Status Remains Confidential

As a general rule, modified grades may be reflected as such on the report card or transcript provided:

The decision to provide the modified grade is made on an individual basis;

The decision provide the modified grade is reflected in the IEP;

The modified grade is available to all students (special education, general and gifted); and

The decision to allow the modified grade is not made on the basis of the student's status as a special education student.

E. Classes Should Not Be Identified as Special Education Classes on a Report Card or Transcript

The Office for Civil Rights [OCR] strongly discourages the use of transcript labels that identify a course as a special education course. OCR encourages the use of more generic descriptors, such as "Basic," "Level One," or "Practical," in describing courses that are targeted to special education students.

F. General Education Teachers Should Collaborate with Special Education Teachers

When both the general educator and the special educator are providing instruction to a student with disabilities, it is advisable that the teachers collaboratively reach an appropriate grade. This requires that the general educator and special educator develop a mutual grading arrangement in the context of an IEP meeting and that the arrangement is indicated in the IEP.

G. Students with Disabilities May Not Be Excluded from Recognition on the Honor Roll or Other Such Academic Honors on the Basis of Their Status

Students must be given an equal opportunity to participate in courses at all levels for which they are qualified or meet course requirements. A District may establish a neutral system of weighted grades, or "core course" criteria for honor roll, as long as the standards are founded on legitimate educational standards. The practical result may be that certain students with disabilities will be unable to perform at the levels required for these honors.

H. Pass/Fail Grades Should Only Be Awarded If They Are Allowed as a Legitimate Modified Grade in the IEP or Are Available to All Students in the Course

The grading matrix for a special education student should not differ from other students unless the difference is the result of a legitimate modification in the IEP. An example of an inappropriate grading practice would be for all special education children to receive a pass/fail grade in a course when the non-identified students receive a letter grade.

I. An Appropriate Grading Policy must Be Simple to Understand, Provide Adequate Notice to Parents and Students, and Provide Informed Choice as to Whether to Accept Accommodations Which Affect Grading

Communication with parents regarding grades is vital. The time to do such is during the IEP Team meeting. Parents are entitled to notice of the District's grading policy and an explanation of the grading policy. Parents of special education students should be offered an informed choice as to whether or not to accept accommodations and/or modifications that will affect grading. They should also be made aware of the adverse impact that a lack of accommodation or modification may have on promotion.

V. Teacher Comments

Beyond simply providing a letter grade, teacher comments on progress reports or report cards can be the impetus for complaints by parents and students. Comments are often necessary to convey specific information regarding a student's progress, or lack of progress, as well as to document a student's classroom behavior. However, teachers should use caution to assure that all comments are made timely and accurately, and should maintain records throughout the marking period. This will go far toward refuting any contention that a student is being discriminated against because of behavior related to his or her disability.

In the recent case of Coventry (R.I.) Public School, February 16, 1999, 31 IDELR 60, an English teacher wrote the following comment on a student's report card: "behavior needs improvement". The parent complained that the comment was made solely because of parent filing a complaint, since all of the student's previous comment reports had been good. OCR found that the teacher's comments were not made in retaliation for the parent's action in filing a complaint. The hearing officer relied upon the teacher's testimony that the comment was warranted based on student's misbehavior on several prior occasions. In particular, the officer noted that there were at least two indications of some misconduct contained in the teacher's prior reports.

VI. Promotion

In the special education context, disputes have often arisen over the subject of promotion, in particular, over the practice known as "social promotion". Parents and students have frequently argued on both sides of the equation; that is, they may argue for promotion when the district does not believe that the student has earned it, and they may argue against promotion when the district believes that promotion is in the student's best interest, whether because of academic or social factors, or a combination thereof. The key here is for the district, via the classroom teachers, to provide the student with the opportunity to earn promotion, and to carefully consider and document the reasons behind the district's decision to recommend for or against promotion. Even if the district gives in to pressure from a parent in determining whether or not to promote, the basis for the district's recommendation should be carefully documented.

Hernando (FL) County School, February 12, 1999, 31 IDELR 89, is a case demonstrating this debate and showing how a district acted properly under the circumstances. This case involved a student with diabetes and asthma. After an evaluation, the district determined that he did not have a specific learning disability. In his fourth grade year, the student had a Section 504 plan, which focused on the effects the student's disabilities had on his academic performance. The district recommended against promotion to 5th grade because of academic deficiencies, but relented upon the parent's insistence. In the 6th grade, the student had thirty-six unexcused absences and failed five classes. The school refused to promote the student to 7th grade. His parent contended that the absences were due to the student's diabetes, and that failure to promote was therefore discriminatory. The hearing officer ruled that the district did not discriminate based on disability when it failed to promote. The officer determined, based upon the student's record and teacher testimony, that the decision was based on the student's failure to master the subject matter. Given the accommodations that the district had provided, including a liberal policy for allowing the student to make-up missed work, the student's performance was not hampered by any failure of the district to accommodate his needs.

VII. The Impact of Failing Grades

Failing grades are frequently considered an indicator that the district has failed to provide a student with a free appropriate education at public expense. In Board of Education of Hendrick Hudson School District v. Rowley, 458 US 176, 204 (1982) the Supreme Court observed that an IEP must be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." One can anticipate that parents and student advocates will construe a failing grade as indicative of a student's failure to meet their IEP objectives. Therefore, if an educator dispenses a failing grade for any reason other than a student's failure to meet their IEP goals and objectives, it is incumbent upon that educator to provide an explanation in the accompanying progress report. Absent such, school districts are exposed to the rational argument that failing grades are indicative of the IEP's failure rather than the student's failure.

VIII. Peer Grading

Many educators use peer grading in the classroom. Unfortunately, there is an increasing weight of opinion that this methodology violates FERPA. At this juncture, evaluators should probably avoid peer grading.

IX. Conclusion