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Published in Print: November 15, 2000, as LEP Testing Controversy Plays Out In Calif. Court

LEP Testing Controversy Plays Out In Calif. Court

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Four California school districts are expected to argue in a state court next week that a controversial 1997 law requiring them to include all limited- English-proficient children in a standardized test be overturned.

Giving the state-mandated Stanford Achievement Test-9th Edition to LEP students violates their civil rights because the test isn't designed for them, the districts—San Francisco, Berkeley, Oakland, and Hayward—contend in a lawsuit that is scheduled to go to trial Nov. 20.

The San Francisco district for the past three years has defied a state mandate to include such students in the Stanford-9, refusing to give the tests to LEP students who haven't been enrolled in the district for at least 30 months. The other districts, which along with the Mexican American Legal Defense and Educational Fund joined the lawsuit in 1998, have complied with the state law and given the test.

"You can't give people an invalid test and make decisions about them and not infringe on their civil rights," argued James Donato, a partner at Cooley Godward, a law firm in San Francisco that is representing the city's 61,000- student district pro bono in the lawsuit.

California, whose 1.5 million students who aren't fluent in English constitute about 40 percent of such students in U.S. schools, is the only state that doesn't exempt LEP students from state-mandated tests, which California administers in grades 2 through 11. Typically, states don't test LEP students for the first two or three years that they're enrolled.

"It's important for the state to know how the children are doing in regard to the accountability system—and that's what the test is about," said Rae P. Belisle, the legal counsel for the state board of education. The board is a defendant in the case, along with the California department of education and the state superintendent of public instruction.

"If you exclude those students from testing, you ignore them," agreed John Mockler, the interim secretary of education for Gov. Gray Davis, a Democrat. "We want to know, 'What's your progress?' That's what we care about. There is no evidence of harm."

Out-of-State Repercussions

The case, which will be heard in San Francisco City and County Superior Court, is being closely watched nationwide because it involves an area of school litigation still relatively uncharted: disputes over how high-stakes testing affects special populations of students. Such testing uses test results to decide, for example, if students advance to the next grade, or if schools receive rewards or penalties from the state.

"As states try to use fallible test results to make high-stakes decisions about students, there's going to be increasing litigation," said Walter M. Haney, a senior research associate in the Center for the Study of Testing at Boston College.

Mr. Haney testified last year against the state of Texas in a suit brought by MALDEF that argued the state's high school exit exam discriminates against black and Hispanic students. A federal judge ruled in favor of the state in that case. ("Federal Judge Rules That Texas Exit Exam Is Constitutional," Jan. 19, 2000.)

In Indiana this year, a state judge permitted the state to carry on with its high school exit exam despite a class action filed on behalf of students with disabilities who had failed the test.

And in Arizona, a ballot initiative passed by voters last week contains a provision to carry out the same policy that California has in place. The initiative says all LEP students will be required each year to take the state's academic test, also the Stanford-9.

While issues about the testing of LEP students have been raised in prior court cases, the California lawsuit is the first to examine in depth at what point in their academic careers LEP students should take such a state test.

Mr. Donato maintains the test is discriminatory because it shows inaccurate results for LEP students, not having been designed to include them. Nevertheless, he says, those results are used to make critical decisions about their academic futures.

Mr. Donato says schools also consider students' grades in making grade-promotion decisions.

"There are not any high stakes for the kids," countered Ms. Belisle, the lawyer for the state board. "The high stakes are for the adults—the school districts—because the state wants to make sure they're teaching the kids what they need to know."

She said state law requires only that "multiple measures" be used for decisions to promote children between grades. While districts typically use students' scores on the Stanford-9 as one of those measures, they aren't required to do so, she added.

But schools do have a high stake in the test scores, which can determine whether they are rewarded for students' progress, Ms. Belisle explained. State officials say they don't use LEP students' scores if they have been in the district for less than a year, even though the students must take the tests.

Schools receive rewards of up to $150 per student if they meet targets for academic progress and the state's requirements for participation in test-taking. Elementary and middle schools must test at least 95 percent of their students; high schools must test at least 90 percent. If schools don't show progress, the state can take control of them.

When the San Francisco district first refused two years ago to give the test to LEP students who had been in the system for less than 30 months, the state sued to force compliance. But a state judge ruled in the district's favor.

The decision in the case scheduled to be heard next week will apply only to the four California districts involved, but it is expected to receive attention from other states that are in the process of making policies for the testing of LEP students.

The trial, expected to last from 10 days to six weeks, comes as the federal government is putting increasing pressure on states to include LEP students in their assessments under requirements of Title I of the Elementary and Secondary Act.

"In the past, there was no accounting for how those kids were doing. They were just out of the loop," said Charlene Rivera, the director of George Washington University's Center for Equity and Excellence in Education. "That's starting to change."

The federal law says states must have assessment systems in place this school year that include all students. But the regulations permit a school to exempt any students from the tests who have been enrolled for less than a full academic year. That is an appropriate exemption for some LEP children but doesn't allow enough time for others, Ms. Rivera says.

"They need to have some opportunity to be incorporated into the instructional program and have an opportunity to develop English, and have studied the content that's going to be assessed," she said.

Kenji Hakuta, an education professor at Stanford University and an expert on LEP students, advocates giving such students much longer than a year to receive instruction in English and academic subjects before including them in testing programs.

"If you have to draw the line somewhere, 30 months would be reasonable," Mr. Hakuta said. "You're going to have a high proportion of students within 30 months for whom the test is not valid. ... The research shows that even after five or seven years [in U.S. schools], there would be some students for whom the test was not valid."

'Triable' Issues

The arguments that the four California districts may use to try to overturn the state's mandate to give the Stanford-9 were narrowed by the Superior Court judge in an October ruling specifying which issues were "triable."

Judge Paul H. Alvarado said, for example, that the districts had not shown "intentional discrimination" to back their claim that the use of the test violates Title VI of the federal Civil Rights Act of 1964 and the 14th Amendment's equal-protection clause.

But the judge will let the districts argue that the test violates Title VI regulations by having a "discriminatory impact." If the judge rules in the districts' favor on that issue, the state will have to show the "educational necessity" of the test.

Title VI regulations bar state education agencies and districts that receive federal funding from using "criteria or methods of administration [that] have the effect of subjecting individuals to discrimination because of their race, color, or national origin."

Judge Alvarado also ruled that the districts can argue the test violates the California Constitution's equal-protection clause. Unlike for the U.S. Constitution, a violation of the state constitution requires only proof of discriminatory impact, not intent.

The districts also plan to argue that in requiring them to administer what they consider to be an invalid test, the state has violated its own education code, which says state assessments should "meet high standards of statistical reliability and validity."

They also contend giving the test to LEP students violates the federal Equal Educational Opportunity Act of 1974, which federal courts have said gives LEP students the chance to overcome language barriers and participate equally in the school curriculum.

Vol. 20, Issue 11, Pages 1,12

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