Wednesday, August 19, 2009

California’s English-only standardized tests do not violate NCLB

What a disappointment.

Interesting Editor note: "The Desert Sun in Palm Springs quotes the school districts’ attorney, Marc Coleman, as warning that school districts with large LEP populations are “going to continue to suffer sanctions unjustly, not because they're not doing a great job with kids but because test scores don't demonstrate that.” As for the possibility of an appeal to the state supreme court, Coachella Valley Unified Superintendent Ricardo Medina tells the Desert Sun, “I anticipate that there's going to be a reauthorization of (No Child Left Behind). That's going to have to weigh into the decision about how much time and energy we're going to put into this.”

Check out the trial court's decision summary for the Coachella Valley USD v. CA case


August 8, 2009

A California state appellate court has ruled that the California State Board of Education did not abuse its discretion and violate the No Child Left Behind Act (NCLB) when it decided to test limited English proficient (LEP) students only in English. A group of school districts sued several state officials and agencies, alleging that the board’s decision violated NCLB’s provisions that LEP students be assessed “in a valid and reliable manner” with reasonable accommodations, “including, to the extent practicable, assessments in the language and form most likely to yield accurate data… .” The act also requires each state to “identify the languages other than English” spoken by students “and indicate the languages for which [assessments] are not available and are needed” and to make “every effort” to develop these assessments, including by seeking ED’s assistance. 2003 non-regulatory guidance from the U.S. Department of Education (ED), which is not legally authoritative but signals department policy and advice, stated: “To the extent practicable, States must make every effort to develop and administer native language assessments, if doing so is likely to yield the most accurate and reliable information… .” The districts sought an order from a state court declaring that the state had not complied with NCLB, enjoining any sanctions against the districts based on LEP test results, and requiring the state to (1) develop and use tests in Spanish for LEP students who are literate in Spanish or instructed in Spanish and English, (2) to do the same for LEP students literate or instructed in other languages where practicable, and (3) to modify assessments for all other LEP students to account for linguistic complexity. The trial court denied their request, finding that NCLB does not direct how LEP students are to be assessed and that the state’s decision was not an abuse of discretion and was entitled to deference from the court.

The appeals court affirmed. The court recounted the state board’s process of arriving at its decision to test only in English, noting that 1998’s Proposition 227 provides that California students, subject to a parental waiver, “shall be taught English as rapidly and effectively as possible” and are to be “taught English by being taught in English”; that ED had approved the state’s plan to test only in English; that students whose spoken English is limited still may be less literate in their native language than in English, especially since 90% of California’s LEP students are instructed in English; that while 80% of LEP students speak Spanish, California students speak some 40 other languages, and the state could find no rationale for excluding some of these and no practical way to include all of them; and that translations of assessments raise issues of test comparability. NCLB “expressly proscribes [ED] from dictating any particular assessment instrument…,” the court observed, concluding that NCLB “entrusts it to the discretion of participating states to devise an appropriate assessment plan for LEP students.” In California the testing mandate had been delegated by the state legislature to the state board of education, making the board’s decision a quasi-legislative function subject to a more deferential standard of review by courts than would apply to ministerial actions.

Applying this deferential standard to the board’s decision, the appellate court rejected the school districts’ contention that the board “abused its discretion” in adopting a practice that is “incompatible on its face with the NCLB and thus ‘inherently invalid.’” Reading NCLB’s statutory scheme as a whole, the court held, “we cannot conclude that Congress intended to foreclose a state’s discretionary decision that testing LEP students in English with accommodations is the most propitious method of satisfying the statutory mandates.” In issuing September 2006 regulations on LEP students, the court noted, ED had rejected a suggestion that Spanish language assessment always be defined as “practicable,” for some of the same reasons the California state board considered. The state board’s decision was neither unlawful nor otherwise procedurally unfair, and its substantive decision did not constitute an abuse of discretion as a matter of law because nothing in the record revealed the decision to be arbitrary, capricious, or lacking evidentiary support.

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