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English-Language Learners Steal ESSA Negotiated-Rulemaking Spotlight

By Alyson Klein — March 23, 2016 2 min read


English-language learners took center stage during Day 3 of negotiated rulemaking on the Every Student Succeeds Act (or “neg reg). And while Wednesday’s discussion remained civil, collegial, and wonky, it’s clear there was a lot of passion for this population.

(Quick tutorial: Neg reg is shorthand for when a bunch of policy experts and advocates get in a room and try to hash out agreement on regulations. In this case the negotiators are talking about tests and a spending provision known as “supplement-not-supplant.” Those are important, but they are really side issues compared to accountability, which will go through the typical rulemaking process.)

One of the biggest issues under discussion: Making sure that tests are valid and reliable for ELLs, a population that’s growing exponentially but is notoriously difficult to assess.

ESSA, like its predecessor, the No Child Left Behind Act, calls for states to assess newcomers in their native language, to get a sense of what they know and can do. Specifically states must “make every effort” to have native-language tests for any language that a “significant number” of students speak.

But even though that requirement had been in the NCLB law for years, most states don’t actually do it. In fact, less than a dozen states have native-language tests, according to materials compiled by the U.S. Department of Education and distributed at Wednesday’s session.

So how far should the regulators go in defining those terms? And what could be done to improve tests for ELLs in regulations (which are binding) vs. guidance (which is not binding, but can help shape policy)?

Delia Pompa, of the Migration Policy Institute, said she doesn’t think the regulations should necessarily define “significant number"—but she would like the department to provide some parameters to help states come up with a high-quality definition. For instance, she suggested states could consider whether they have enough students who speak a particular language to develop a valid native-language test.

Pompa also noted that good practice dictates that tests should be given in the language the student is being instructed in. (So, if a student is an ELL, but is taking a chemistry class in English, the test should be in English, too.)

And Tony Evers, the superintendent of Wisconsin, noted that there should be federal resources for improving tests for English-language learners. The federal Education Department is seeking more money for state assessments in its budget—partly to help states consider more-innovative assessments. Evers wishes some of that money could be used to improve tests for ELLs.

Alvin Wilbanks, the superintendent of Gwinnet County schools, in Georgia, agreed.

“Some of the things we’re talking about do cost money,” he said. “I just flipped to the federal budget; they are not flush with money.”

Another key point of discussion: Should tests for English Language Proficiency be peer-reviewed? Many of the regulators seem to agree, that yes, they should be.

Housekeeping point: There is going to be a subcommittee on dealing with tests for students with severe cognitive disabilities, which might be the toughest issue the regulators have to tackle.

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