California School Districts Sue State over NCLB Testing

Ten California school districts are suing the State of California, Governor Schwarzenegger, the California Commissioner of Education, and other officials, claiming that the defendants are violating NCLB and the California Constitution by testing English Language Learners (ELL) in English. Joining the districts as plaintiffs in Coachella Valley Unified School District v. State of California, which was filed on June 1 in state superior court in San Francisco, are the California Association for Bilingual Education (CABE); Californians Together, a coalition of advocates, parents, educators, and civil rights groups; and the California chapter of LULAC, the national League of United Latin American Citizens.

NCLB requires that ELL students--students not yet proficient in English--take tests in Reading/Language Arts, Math and English proficiency. Like all other students, ELL students must meet yearly state academic targets, and their scores help determine whether a school has met its academic target, called Adequate Yearly Progress (AYP). If the ELL subgroup in a school fails to meet the AYP target, the entire school fails to make AYP. Failure to meet AYP targets for two consecutive years or more results in a school being labeled “in need of improvement” and being subject to a range of sanctions.

Under NCLB, students who have been in this country for three years or less, even if they have met English language proficiency, may take Reading/Language Arts and Math tests in their native language, if such a test is available. NCLB requires that states provide accommodations to ELL students and, “to the extent practicable,” develop and administer native-language tests to these students.

Unreliable Assessments

As the plaintiffs point out, education experts agree that it takes an average of five years for a non-native English speaking student to become academically proficient in English. If a student is tested in a core subject matter, such as Reading/Language Arts or Math, before he/she is academically proficient, it is impossible to distinguish between a linguistic error and an academic error. Therefore, the plaintiffs state, tests in English for these students are unreliable measures of what they know in a core academic subject. To date, Education Week reports that eleven states use native language tests as part of their accountability system.

California has 1.6 million ELL students, of which 85% speak Spanish as their native language. In the plaintiff districts, a majority of the ELL students are native Spanish speakers. Contrary to what NCLB allows, California requires that students take tests in Reading/Language Arts and Math in English after they have been in the country for one year. The ELL subgroups in most of the plaintiff districts met the state targets in the English proficiency test, but failed to meet the yearly state targets in the core academic subjects tested in English.

Constitutional Violation

The plaintiffs claim that the failure to develop English tests violates not only NCLB, but also the California constitution. Owing to the failure of ELL students to meet state targets in the core academic subjects, schools in the plaintiff district have been labeled as needing improvement and have been subjected to varying degrees of sanctions. The plaintiffs contend that these sanctions force schools to steer resources away from programs that help ELL students and force an excessive fixation on English instruction at the expense of instruction in core academic subjects. This forced change in programs adversely affects the ability of ELL students to graduate and to do well on SATs. In addition, labeling the school as needing improvement stigmatizes students, teachers and administrators. These effects violate the California constitution because, as a result of unreliable tests, ELL students in these schools are being denied educational instruction and resources provided to other students in California .

California's Reaction

The spokesperson for the California Department of Education is reported to have stated that California has a hundred native languages and it is not practical to develop tests in every language. This claim has been echoed by the Connecticut Commissioner of Education, who noted that Connecticut has one hundred sixty native languages and to develop and administer tests in each one would be cost-prohibitive. A court in Pennsylvania took a similar stance in rejecting a claim in 2004 by the Reading school district that testing ELL students in English violated NCLB. The Commonwealth Court of Pennsylvania held that the state's only requirement under NCLB is to develop tests “to the extent practicable.” That case is currently being appealed.

Native Language Testing is Not a New Requirement

Education Week points out in an article this week that since 1994, states have had the requirement under federal education law to develop native language tests “to the extent practicable.” Recently, a consortium of nine states has begun working on a Spanish language arts test based on Spanish language arts standards, also being drafted by the consortium. Moreover Education Week reports that Kansas , a state with tests in Spanish, has seen success with ELL students in meeting AYP targets.

As one of the attorneys filing the case noted, we are “defeating the purpose of NCLB when we don't test validly.”

Prepared by Wendy C. Lecker, June 16, 2005