Public schools in California can give achievement tests and high school exit exams in English to all students, even the nearly 1.6 million with limited English-speaking proficiency, a state appeals court ruled last week.
The case dates to 2005, when nine California districts that enroll large proportions of English language learners, or ELLs, filed a lawsuit in conjunction with three bilingual-education groups against the state Board of Education (SBE) because of the testing methods the board set for the state. The conflict was sparked by the federal No Child Left Behind law of 2002, which contains a provision stating that limited English-speaking students "shall be assessed in a valid and reliable manner" for purposes of federal accountability. Because the California tests, which were established by the SBE, were given in English to all students, the plaintiffs argued that the exams violated NCLB's requirements.
The First District Court of Appeals in San Francisco, however, rejected that argument in a 3-to-0 ruling, saying the federal law neither requires nor forbids testing in a student's native language and leaves such decisions largely up to the states. Its ruling upheld a San Francisco judge's 2007 decision.
In last week's decision, Justice Timothy Reardon said that the law does not authorize the court to act as "the official second-guesser" of the reliability of a state's testing methods and that developing native-language tests would be difficult because at least 40 different languages are spoken by students in California's schools. Moreover, in 1998, the state's voters approved a ballot measure that essentially prohibited bilingual instruction except under limited circumstances, and Reardon said testing students in their primary language "could send confusing messages throughout California's education system."
Of course, the districts that sued disagree with the ruling. "The court dodges the essential issue in the lawsuit, which is: What is testing supposed to measure?" said Marc Coleman, a lawyer for the school districts and advocacy groups, in an interview with the San Francisco Chronicle. "If you don't have to evaluate the testing, California gets a free pass on testing kids who don't speak English, using tests that they literally have no evidence of their validity."
NCLB requires that certain accommodations be made during testing for students who speak limited English, such as extra time, the use of dictionaries, or giving instruction in the student's native language. The California SBE adopted such regulations in 2003. Donna Neville, chief counsel for the SBE, says the state does not foresee any changes in test policies. The nine districts will convene with their lawyers to determine their next steps, which might include an appeal to the state Supreme Court.
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