Federal

States in Holding Pattern on ELL Waiver Requests

By Alyson Klein — July 20, 2015 4 min read

The U.S. Department of Education may have given Florida unprecedented flexibility when it comes to English-language learners and accountability, but so far, other states haven’t been able to get similar leeway, even though they have tried.

Federal officials last year agreed to Florida’s request to give its ELL students two years in a U.S. school before factoring their scores on annual English/language arts and mathematics tests into school grades under the No Child Left Behind Act.

Florida’s Precedent

As part of its waiver from some requirements of the law, Florida had sought the two-year testing timeline, a departure from current law, which calls for ELLs’ test scores to be included for accountability purposes after they have been enrolled in U.S. schools for at least one year. Florida’s win came only after the state spent months cajoling the Education Department and even threatening legal action.

Now, at least seven other states—including New York, Ohio, Rhode Island, Connecticut, Colorado, Massachusetts, and Delaware—have asked for new leeway in testing English-learners and holding schools accountable for the results.

But, so far, Delaware, New York, and Rhode Island have been given a no-go on their requests for flexibility on ELL testing and accountability. And Massachusetts, which also asked for flexibility when it comes to testing of ELLs, was approved for only part of its request.

Connecticut, Colorado, and Ohio are still waiting for their renewal requests to be approved. Still, it seems like a long shot that the department will grant the pending requests, given that it’s already turned down similar asks from three other states.

Delaware, for instance, had wanted to make gradual changes to when “recently arrived” students would be counted for accountability purposes and when they would take tests. Under the state’s proposed plan, tests and accountability would be phased in gradually until an English-learner had enrolled in school in the United States for four years, at which point that student’s growth and achievement would count the same as that of any other student.

But Delaware was told that its pitch wasn’t consistent with the waivers, which don’t specifically touch on this issue, and that the department wasn’t considering further flexibility on English-learner accountability right now. At the department’s suggestion, Delaware decided to take the ELL request out of its waiver-renewal application.

The department is looking at each state’s request for flexibility on English-learner testing and accountability on a case-by-case basis, said Dorie Nolt, a spokeswoman for the department. Still, there are general parameters: Any approach a state takes must ensure that recently-arrived ELLs get the resources, instruction, and interventions they need to make progress in learning English and mastering content standards.

Timeliness a Concern

The National Council of La Raza, a civil rights organization in Washington focused on Hispanic-Americans, is worried that if states wait a long time to fully count ELLs in their accountability systems—say, four years, as under Delaware’s plan—those students will get swept under the rug.

“A one-year exemption [on accountability] is an absolute hard line for us,” said Leticia Bustillos, the associate director of the education policy project at the civil rights organization. And it doesn’t sound like NCLR officials are thrilled that the Obama administration gave Florida an exemption in the first place. “It is concerning that one state was given a two-year exemption. We run the risk of not having enough timely information for us to take action for our students.”

As Congress is working on a rewrite of the NCLB law, waivers could form an important precedent, Ms. Bustillos added.

“Waivers are the law of the land until things change,” she said. “And if the door for one state is open, that definitely opens the door for others.”

The states that were already rejected for English-learner testing flexibility were asking for a range of changes. Rhode Island, for instance, wanted a one-year delay in testing of English-learners in mathematics—the state already has one for the testing of those students in reading.

And New York wanted to exempt English-learners who have been enrolled in school in this country for less than two years from having to take state reading tests. Instead, the state wanted to develop a performance index for students who are new arrivals, and give them the state’s English-language-proficiency test instead for accountability purposes.

Growth or Proficiency

It’s worth noting that those requests differ somewhat from Florida’s. The Sunshine State was given approval to substitute growth on reading assessments for proficiency on tests during students’ second year in schools in the country. But New York’s proposal was to temporarily exclude of these students.

“We can’t afford to let recently arrived English-learners slip through the cracks; schools should be held accountable for their learning,” said Ms. Nolt, of the Education Department.

Still Waiting

Among the three proposals that are technically still on the table, Colorado and Connecticut want to wait to count English-learners for accountability purposes until they’ve been enrolled in U.S. schools for at least two years.

And Ohio wants to exempt newly arrived English-learners from being considered for accountability purposes until they have completed at least two years of schooling in the U.S. Students would still need to take state tests, however. And in a shift for the state, first-year English-learners would have to take the English Language Arts tests. Their results wouldn’t count for accountability purposes, but would help provide a baseline so that schools could see how much those students had grown between their first and second years of American schooling.

A version of this article appeared in the August 05, 2015 edition of Education Week as States in Holding Pattern on English-Learner Waiver Requests

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