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Published in Print: November 22, 2000, as Calif. Settles Battle Over LEP Testing

Calif. Settles Battle Over LEP Testing

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The San Francisco school district agreed last week to settle a lawsuit against the state of California by backing down from its refusal to give a state-mandated test in English to all students who aren't proficient in the language.

Three other California districts were also a part of the 1998 suit, which asked the state to permit the districts to exempt any students with limited English proficiency who had been in their districts for less than 30 months. But the 61,000-student San Francisco district was the only one to defy the state by not giving the standardized test—the Stanford Achievement Test-9th Edition—while the issue remained unresolved.

Parties on both sides of the dispute said they had approved the settlement and were pleased with its provisions. The agreement averted a trial, which had been scheduled to begin this week. As of late last week, the agreement had not yet been signed, however, and so had not yet been made public.

The other districts that joined San Francisco in the suitBerkeley, Oakland, and Haywardalso agreed to the settlement.

"We all got what we needed," said Rae P. Belisle, the legal counsel for the state board of education, which is a defendant in the lawsuit, along with the California education department and the state schools chief. "What the state wanted was for all children to be tested. I think the harm that many school districts thought would happen didn't, and it's a nice time to put the issue behind us."

Mary T. Hernandez, the president of the San Francisco school board, who voted for the agreement in a school board meeting last week, called the settlement "a reasonable compromise."

"The agreement puts parents in charge, in consultation with local educators, in deciding when a limited-English- proficient child can be fairly tested," she said.

Legal Modifications

Central to the settlement, according to Ms. Hernandez, was the state school board's willingness to modify a rule that restricted districts from advising students' parents of their option to ask for their children to be exempted from the test unless the parents broached the topic first.

Under the agreement, a sentence that San Francisco officials consider crucial will be added to the existing regulations concerning the state's Standardized Testing and Reporting program: "A school district and its employees may discuss the STAR program with parents and may inform parents of the availability of exemptions. ..."

The settlement also will restore to San Francisco $640,000 in state funding that California had withheld because of the district's refusal to abide by the statewide testing policy.

In addition, Ms. Hernandez said, the agreement addresses the districts' concerns that the scores of LEP students would be used unfairly against students, schools, or districts.

As part of the settlement, state Superintendent of Public Instruction Delaine Eastin agreed to caution educators in writing against using the scores as the sole basis for making decisions about student placement. In addition, the state has agreed to consider student progress on a new state English-proficiency test if a school or district falls short of state requirements for LEP students' improvement on the Stanford-9, according to Ms. Hernandez.

Ms. Belisle, the lawyer for the state board, declined to call those changes "concessions," instead saying that "the districts wanted some clarification, and I think the new language helps that."

The agreement in California comes as states are being pressed by the U.S. Department of Education to comply with a federal requirement under the Title I program that LEP students be included in state assessment programs.

California officials and experts on LEP students said it was hard to predict the impact of the state regulatory change designed to give district officials more freedom to discuss test waivers.

Kenji Hakuta, a professor of education at Stanford University and an expert on the education of students with limited English skills, said an increase in the number of parental waivers from the test could make it less reliable as a gauge of such students' performance as a group. "If you have a significant proportion of parents who seek waivers for their kids, the information is really compromised," he said.

A central argument of the lawsuit was that the state test wasn't valid for LEP students because it wasn't designed for them. Mr. Hakuta agrees with that argument. ("LEP Testing Controversy Plays Out in Calif. Court," Nov. 15, 2000.)

"Unless the state comes forth with a better plan for testing children, more parents will opt out, and that will create the ultimate pressure to be more responsible to these children," said Patricia C. Gándara, a University of California, Davis, professor of education who specializes in the study of LEP students. She also opposes the state's policy of testing all such students.

Already the state is having to deal with a problem of a high percentage of parents of LEP students at some schools seeking waivers from the test, according to Douglas Stone, a spokesman for the California education department.

But there's an incentive for districts to advise parents not to opt out, he added.

Under the state's accountability system, schools receive rewards of up to $150 per student, and $1,600 per staff member, if they meet targets for academic progress and the state's requirements for participation in test-taking. The education department disqualifies schools from receiving awards if the group of students taking the test fails to reflect the schools' overall demographic makeup.

Vol. 20, Issue 12, Pages 1,13

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