• Summary and Analysis of the U.S. Department of Education's Guidance on Including Limited English Proficient Students in Assessments and Accountability Under the No Child Left Behind Act of 2001
  • March 9, 2004
  • Law Firm: Holland & Knight LLP - Washington Office
  • Introduction

    On February 20, 2004, the U.S. Department of Education (the "Department") issued guidance (the "LEP Guidance") that gives states additional flexibility related to the inclusion of limited-English-proficient students in statewide assessment systems under the No Child Left Behind Act of 2001 ("NCLB"). NCLB requires that states make adequate yearly progress ("AYP") determinations for every public school and district based primarily on state assessments, disaggregated by subgroups. Among the central provisions of the law are the general requirements that all students, regardless of background, must be included in the statewide assessment system and that state assessments must be aligned to the same high standards for all students. The LEP Guidance addresses the rules affecting certain LEP students for whom modifications to the general NCLB assessment and accountability rules may apply.

    The Department's LEP Guidance applies to AYP determinations to be made by states this year (the 2004-05 school year, based on 2003¿04 assessments). The Department "will soon publish" proposed rules leading to final regulations regarding assessment and accountability issues for LEP students under NCLB. The LEP Guidance will remain in effect until the Department issues final regulations.1

    Summary of Key Points

  • Assessment of LEP students during their first year of enrollment in U.S. schools ("new immigrant students"). The Department has modified its assessment and accountability rules affecting new immigrant students in three ways:

    • Assessment of new immigrant students. For LEP students who are in their first year of enrollment in U.S. schools, states may -- but are not required to -- assess those students in the reading/language arts content assessments that are administered for making AYP determinations. By contrast, states must continue to assess new immigrant students in English language proficiency assessments, as well as in the state math assessments that are used for making AYP determinations.2
    • AYP participation rate calculations. New immigrant students who take English language proficiency assessments (or reading/language arts content assessments, if administered) "can be" counted as participants for the purposes of satisfying the 95% inclusion requirement for reading/language arts, which is one part of the AYP calculation. New immigrant students taking math assessments "are" counted as participants for purposes of the 95% inclusion requirement for math.
    • AYP proficiency determinations. States are not required to include the scores of new immigrant students in any subject in the assessment results used to calculate AYP-even if the student has been enrolled in the school or district for a full academic year.

  • Inclusion of former LEP students in the LEP subgroup when making AYP determinations. For purposes of making AYP determinations, states may count the scores of former LEP students in the LEP subgroup for up to two years after those students are no longer considered to be LEP under state rules.3 In doing so, states are not required to include these students when determining whether their LEP subgroups satisfy the state-defined minimum number for subgroup AYP accountability.

  • Amending state accountability plans. If states decide to take advantage of these new rules affecting certain LEP students, states must amend their AYP Workbooks (and possibly their standards and assessment plans) in accordance with the procedures outlined by the Department. (See, e.g., Correspondence from Assistant Secretary Ray Simon, dated February 5, 2004.) "(A)mendments do not need to be submitted before a state acts on the flexibility provided (by the LEP Guidance), but should be submitted (to the Department) as soon as reasonably possible." (Note that in its February 5 correspondence the Department established an April 1, 2004, deadline for the submission of proposed amendments to states' AYP Workbooks.)

    Analysis and Other Considerations

  • Impact on minimum number for subgroup accountability. The LEP Guidance affords states flexibility in terms of how certain LEP students are (or are not) included in determining whether the LEP subgroup (or other subgroups) for a given school or district is above the state's "minimum number" for subgroup accountability. First, in the case of students who exited from LEP status within the last two years, those students do not have to be included in determining whether the LEP subgroup is above the minimum number for AYP subgroup accountability (even where the scores of those students may be included in the LEP subgroup's AYP determination when that determination must be made). Second, in the case of new immigrant students, those students likely do not have to be included in determining whether a given subgroup (e.g., the LEP subgroup) is above the minimum number for subgroup accountability where a state chooses not to include the scores of those students in making AYP determinations, even though those students must be included in the minimum number for participation rate, based on their participation on the English language proficiency assessment (or the state reading/language arts content assessment, if administered) and the state math assessment.

  • Implications for LEP monitoring and transition. The new rules permitting former LEP students to be counted in the LEP subgroup for up to two years after their designation as LEP appear to apply fully in cases where states already define the LEP subgroup broadly; e.g., to include students receiving direct services and students being monitored during an LEP transition period based on their progress and achievement. Thus, in cases where states define LEP students to include students who are being monitored as part of their transition from LEP status, they likely may calculate AYP for LEP students by designating those students as LEP for up to an additional two years following their monitoring period.

  • Implications where states use assessments for multiple purposes. To the extent that states or districts choose not to assess new immigrant students in reading/language arts, consistent with the LEP Guidance, they need to consider possible ramifications in cases where those assessments are also used for other purposes-particularly for individual student accountability purposes (such as to inform grade-to-grade promotion or high school graduation decisions). Assessments can confer individual educational benefits upon students. The denial of such benefits from those assessments (including from evaluations that may inform instruction and interventions) may raise other legal issues (such as with respect to compliance under the Fourteenth Amendment to the U.S. Constitution, Title VI of the Civil Rights Act of 1964, or the Equal Educational Opportunities Act of 1974).

  • Implications for state data systems. To the extent that states take advantage of the flexibility offered by the LEP Guidance, they will need to establish processes immediately that will permit them to identify those LEP students who are in their first year of enrollment in U.S. schools and those former LEP students whose designation as LEP ended within the last two years. In the longer term, states should modify their statewide data systems to include each of these categories of students if these interim rules are adopted as final Department regulations.

  • NOTE: Existing rules for LEP students. In its LEP Guidance, the Department also summarized relevant existing rules affecting LEP students, of which each state should be aware: (1) each state can establish its own definition of who qualifies as an LEP student (consistent with the NCLB definition of LEP student under §9101(25)) and determine the entry and exit criteria relevant to the determination of whether students are LEP; (2) states have "some flexibility" in establishing a minimum number for the LEP subgroup accountability, which may differ from minimum numbers established for other subgroups included in AYP determinations; and (3) when making AYP determinations, states are permitted to use only the assessment scores of students who have been enrolled in a school or district for a "full academic year" (as states define it).

    1All quotations reference the Department's LEP Guidance, which was provided in a Dear Colleague letter from U.S. Secretary of Education Rod Paige, dated February 20, 2004.

    2Even if LEP students do not take the reading/language arts content assessment during their first year in U.S. schools, that year must be considered the first of the three years in which students may take the reading/language arts assessment in their native language.

    3During this period, states and districts are not required to continue administering English language proficiency assessments or to continue providing language services to these students.