Spellings Issues Final Regulations for Testing of English-Learners

By Mary Ann Zehr — September 15, 2006 3 min read
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The Department of Education published final rules for testing English-language learners under the No Child Left Behind Act and including those scores in accountability decisions that differ little from proposed regulations published more than two years ago.

The biggest change is that the final regulations define a “recently arrived” English-language learner as a student with limited English proficiency who has attended schools in the United States for 12 months or less, rather than 10 months or less, which was the case with the proposed regulations.

View the Sept. 13 limited English proficiency regulations, posted by the U.S. Department of Education.

“We’re going to stand strong on accountability,” Secretary of Education Margaret Spellings said in a conference call with reporters on Sept. 13, the same day the regulations were published in the Federal Register. “We’re not going to provide loopholes.”

The final regulations are largely consistent with rules proposed by then-Secretary Rod Paige in 2004, which the Education Department has informally enforced since then. (“Paige Softens Rules on English-Language Learners,” Feb. 25, 2004.)

Many of those who commented on the proposed regulations had asked to change the definition of a “recently arrived” LEP student to mean a student who has attended schools in the United States for a period of time ranging from 12 months to five years, or to tie the definition to a student’s English-language proficiency.

The department largely rejected those recommendations. Ms. Spellings stressed that through a partnership with the states, which was announced July 27, the Education Department is examining best practices for including English-language learners in large-scale assessments. (“Department Expands NCLB Tutoring Pilot Programs,” Aug. 9, 2006.)

Holding the Line

Scott R. Palmer, a Washington lawyer and a consultant to the Council of Chief State School Officers, in Washington, said state education officials were disappointed with the department’s decision not to provide more flexibility.

“We asked for a reasonable amount of time up to and including three years in which states could pursue a variety of options that might more validly and reliably include LEP students,” he said.

He said the Education Department’s decision that all students who have been in U.S. schools for a year should have their test scores used for accountability purposes is simplistic. He argued that the final regulations don’t take into consideration the difference between a newly arrived English-language learner who is just starting school and one who arrives as a teenager who hasn’t had much schooling in his or her home country.

“To set a one-year, bright-line rule gets at the inclusion issue but not the meaningful inclusion issue, not the valid and reliable and accurate inclusion issue,” he said.

But Melissa Lazarín, the senior policy analyst for education reform for the National Council of La Raza, a Hispanic-advocacy organization in Washington, said her group is happy that the department is holding the line at one year.

She said states don’t have valid assessments for English-language learners, and they won’t continue to develop them unless federal officials are strict about making them include the scores of such students in accountability calculations.

“States should be much further along than they are right now,” she said. “I think this will help further things in the right direction.”

The final rules, which take effect Oct. 13, require that all English-language learners be included in mathematics testing during the first administration of the test after they arrive in the United States, but math scores don’t have to be used for calculating adequate yearly progress until after a student has been in U.S. schools for 12 months.

English-language learners are exempt under the rules from taking the state’s reading test for the first administration of the test after they arrive in U.S. schools, but after that they must take the reading test and their scores must be used for accountability purposes.

The final regulations permit states to put the test scores of former English-language learners in the pool of other English-language learners for calculating adequate yearly progress for two years after those students have been reclassified as fluent in English. But they forbid state and district report cards from including those students in the LEP subgroup for reporting purposes so that parents and the public have a clear picture of the academic achievement of students who currently have limited English proficiency. States and districts also must report annually on the number of recently arrived LEP students who are not given state reading tests.

A version of this article appeared in the September 20, 2006 edition of Education Week as Spellings Issues Final Regulations for Testing Of English-Learners


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