Students with disabilities are treated unfairly under the new federal education law, No Child Left Behind, according to some local educators.

Expecting students who have special needs to perform at the same level as those who don’t have special needs is inhumane and abusive, say superintendents and other education officials.

The complicated and controversial law requires that by 2014, all students in the country – including those with special needs – meet standard levels of proficiency in reading and math in each grade level. On the way to meeting the goal, education departments in every state have set yearly targets that entire schools and subgroups of students within those schools must meet. The subgroups include students identified as being from low-income families, having certain disabilities and belonging to minority groups.

The Maine Educational Assessment, which is currently given to students in fourth, eighth and 11th grades, is being used to gauge student progress in this state.

Only 1 percent of students with the most significant cognitive disabilities in each district and in the state as a whole can be exempted from taking the MEA. They are allowed to take an alternate test to assess their abilities and their scores weren’t counted toward their school’s performance ratings.

But Maine educators say the 1 percent threshold is not enough and that many other students in special education should not have been made to take the MEA.

Several area schools recently were categorized by the state as “underperforming” because a certain percentage of students in a disabilities subgroup did not meet the established targets for their grade level. If even one subgroup misses the target, the entire school can be listed as “underperforming.”

The consequences for making the list two or more years in a row can be as steep as having the state department of education take over the school. Also, teachers can lose their jobs.

Area schools making the list this year included some in Bangor, Calais, Pittsfield, Newport, Howland, Old Town and Waldoboro. A few have appealed the listing.

Officials from some of those school districts spoke out recently about what they see as flaws in the law.

The educators said No Child Left Behind is at odds with another federal law, the Individuals with Disabilities Education Act (IDEA), which mandates that children be evaluated on an individual basis but places no limit on the number of students who can be identified as requiring special education.

They said No Child Left Behind penalizes schools in communities with group homes or that house consolidated programs for students with special needs, since those schools have a disproportionately large percentage of those students.

Educators also said it’s unrealistic to limit to 1 percent the number of students with disabilities who can take the alternate test.

“No Child Left Behind and exceptional children don’t mix,” said Bangor Superintendent Robert Ervin. “The concept of an accountability system for this group of students is at the very least unfair. In all other ways, we make an attempt to accommodate their needs. These kids are working as hard as they can. To expect them to make an arbitrary target based on students without the same needs is unfair.”

Catherine Menard, curriculum coordinator in SAD 31 (Howland), said it’s “demoralizing” for students with disabilities to take the MEA and be tested at grade level “when … by virtue of being in that subgroup, it’s already been identified that they’re not working at that level. It’s not providing anything optimistic for that student – it’s just confirming information everyone already knows.”

After hearing similar concerns from educators throughout the state, federal lawmakers are taking action. U.S. Sen. Susan Collins has announced that she plans to appoint a task force to assess the effects of the law.

While No Child Left Behind has some benefits, “other changes … such as new educational standards for special needs students, have been met with apprehension and some criticism,” Collins said recently.

Another Washington-based education support group, the Council of Chief State School Officers, is organizing a task force to develop recommendations to “clarify, align and resolve conflicts” between IDEA and No Child Left Behind, said Jaci Holmes, federal liaison for the Maine Department of Education.

With the reauthorization of IDEA anticipated early next year, this will “be an opportunity to look at the interface between the two regulations,” Holmes said.

Maine follows federal guidelines that list definitions for 13 disabilities: mental retardation, hearing impairment, deafness, speech and language impairment, visual impairment, emotional disability, orthopedic impairment, other health impairment, specific learning disability, deaf-blindness, multiple disabilities, autism and traumatic brain injury.

Students are identified as having disabilities after a series of diagnostic tests. A team including parents, teachers, a principal, a special education director and a psychological examiner make the determination. To qualify for special education, a student must have a disability that has been proven to have an adverse effect on school performance.

While 99 percent of these students with special needs must still take the MEA, accommodations can be made to give some of them extra time or a different setting in which to take the test.

But Murray Shulman, director of pupil services in Bangor, said even if they’re allowed modifications, students with disabilities still could be “overwhelmed” at the prospect of taking the state’s standardized test.

Mona Baker, who oversees the alternate assessment at the Department of Education, said the state tried to get across the message that the 1 percent limit isn’t as important as “making the right decision for kids.”

But Shulman said it may not have worked out that way.

The 1 percent cap could have “biased the decision-making process” so students who would have been better evaluated through the alternate assessments instead took the MEA, he said.

While Shulman believes that No Child Left Behind and IDEA contradict each other, Christine Wolfe, director of policy for the U.S. Department of Education, Office of the Undersecretary, found no inconsistency.

The 1 percent rule was based on state and national data on how many alternate assessments have been given annually and on the incidence rates for students with cognitive disabilities.

Wolfe said the cap makes schools think twice about which students are identified for alternate assessments based on alternate achievement standards, and it reduces the incentive to hold those with physical disabilities to lower standards.

Old Town Superintendent Matthew Oliver agreed that there may be an inaccurate perception that all students with special needs may be unable to perform up to grade level standards on the MEA.

Some disabilities can affect a student’s performance on a “traditional, pencil-and-paper test” like the MEA more than others, he said. “All school systems that have children with disabilities can’t be painted with the same brush.”

Mental retardation, attention deficit disorder or specific learning disabilities could “seriously impair [a student’s] ability to demonstrate proficiency,” while deafness or speech and language impairment may be less likely to affect performance, he added.

Still, many of the schools that made the state’s underperforming list did so because they had the minimum 41 or more students in a disabilities subgroup, with a certain percentage of those students not meeting grade level standards on the MEA in either reading or math.

Small schools which had fewer than 41 students with special needs did not have the disabilities subgroup measured against their school’s performance targets this year. Those schools instead will have scores for the undersized subgroups accumulate over a three-year period to get a more accurate reading before they are evaluated against the targets.

The Samuel L. Wagner Middle School in Winterport and Reeds Brook Middle School in Hampden were inappropriately placed on the underperforming list initially because a disabilities subgroup at each school missed the performance targets.

Both SAD 22 schools, however, were taken off the list last week after state officials recognized that certain students had been improperly counted as having special needs. Removing them from the disabilities subgroup at each school dropped those subgroups below the minimum size and kept them from being counted against the school’s performance this year.

That enabled both schools to get off the state’s underperforming list for now, but many educators fear that like many other smaller schools in Maine, they will likely end up on the list in a year or two when the disabilities subgroups are eventually counted against performance targets.

For all its deficiencies, however, No Child Left Behind has some similarities to Maine’s own laws, state officials say. The state’s Learning Results also require that all children – even those with special needs -be held to the same academic standards.

But while the same “basic belief is at the heart of Maine’s Learning Results,” the federal law’s focus on publicly identifying schools “takes this philosophy to a new and potentially harmful level,” said Maine Deputy Commissioner of Education Patrick Phillips.

Public reporting could “bring about more rapid change by identifying the scale of the problem,” but it also could “single out groups for excess scrutiny,” he said.

In the end, “we should not lose sight of the fact that student assessment is not just about accountability,” Baker said. “The core of all activity in schools and school systems is teaching and learning, and the key question is: Are all of our students learning?”