• California's English-Only Testing for Limited English Learners Upheld
  • September 11, 2009 | Author: Diana D. Halpenny
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Coachella Valley Unified School District v. State of California, (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., July 30, 2009), a California Court of Appeal considered a challenge to the reliability and validity of California’s testing of Limited English Learners (“LEP students”) under the No Child Left Behind Act (“NCLB”). The Court of Appeals subsequently upheld the trial court’s ruling that California’s manner of conducting student assessments for NCLB purposes did not violate any ministerial duty created by the statute and that its decision to assess students through the use of English-only testing was not arbitrary and therefore not an abuse of discretion.


    NCLB requires participating schools to test all students in grades 3 through 8 annually, and all students in grades 10 through 12 at least once in mathematics and reading or language arts. LEP students must be included in the testing, but schools are required to assess them “in a valid and reliable manner” and provide them with “reasonable accommodations on assessments.” The United States Department of Education (“USDE”) clarified that these accommodations may include extra time, native language assessments, small group test administrations, flexible scheduling, simplified instruction, use of dictionaries, and/or instructions in the native language. Both the NCLB and USDE emphasize that accommodations must be provided “to the extent practicable” in order to yield accurate and reliable data on what those students know and can do in all academic content areas. The NCLB also includes a directive for adequate yearly progress and requires states to develop "separate measurable annual objectives for continuous and substantial improvement" for all students. Continued inadequate progress is met with progressively severe consequences of corrective action and restructuring.

    California’s state plan under NCLB was submitted to the USDE in June 2002 and approved in July 2002. Later that year, the State Board decided against testing LEP students in their primary language and began developing and implementing regulations authorizing accommodations for LEP students, which were approved in 2003. In June 2005, nine school districts and others filed a complaint alleging that the State Board violated mandatory duties to create and implement a testing accountability system for LEP students which complied with the dictates of the NCLB. The school districts claim that the California plan is incompatible with the NCLB and that they suffered harm in the nature of inappropriate sanctions based on the faulty testing system. The trial court denied their request for an order to force the State Board to comply with the statute finding that NCLB gives the states discretion to determine their own manner of testing LEP students and that the State Board did not abuse this discretion. The Court of Appeals affirmed this decision.


    The California Legislature delegated its legislative power to the State Board to “adopt rules and regulations not inconsistent with the laws of this state” for the government of K-12 schools. In light of this delegation of power, the actions of the State Board are entitled to deference and will be upheld by the court unless they are found to be arbitrary, capricious, an abuse of discretion or in conflict with the governing law. In order to determine whether to uphold the actions of the State Board, the court examined the compatibility of the California plan with NCLB and the procedure the State Board employed to make its decisions.

    First, the Court of Appeals found that California’s plan was not incompatible with the NCLB. “Notwithstanding the statutory requisites of validity and reliability, the NCLB expressly proscribes the Secretary [of Education] from dictating any particular assessment instrument or mode of instruction.” It does not obligate a state to test LEP students in their primary language, but rather requires the state to provide reasonable accommodations. The NCLB’s “open-ended approach to accommodations, and the explicit concern for ‘practicability’ and reasonableness, are all statutory signposts calling for broad discretion” on the part of the states. Press releases and fact sheets from the USDE confirm that the individual states are left to decide for themselves how best to test LEP students and to determine which accommodations are appropriate.

    Prior to passage of the NCLB, California was administering the California Standards Tests (CST) as part of the Standardized Testing and Reporting Program to measure achievement in grades 2 through 11 and was working to develop a high school exit examination. Both the CST and the exit examination are only administered in English; however, both are created using the “universal design” theory in order to reduce any avoidable disadvantages to LEP students. It is the CST and the exit exam, administered to LEP students with the accommodations approved by the State Board in 2003, that make up the assessment portion of California’s plan under NCLB. This plan has been given the status “Approval Pending” from the USDE following its administrative peer review, with only technical issues unrelated to the process for testing LEP students cited as problems. In fact, the USDE has given full approval to the plans of other states, including Arizona, that have made the decision to test LEP students only in English.

    Second, the Court of Appeals found that “how California’s method of assessment came to be included in the State’s plan under the NCLB was not unlawful or otherwise procedurally unfair.” The State’s plan must be prepared in consultation with local educational agencies, teachers, principals, pupil services personnel, administrators, other staff and parents, and the USDE reviews the plan with the assistance of a peer review process. Thus, a broad spectrum of education stakeholders was included in the planning and review processes. With no evidence to the contrary, it is presumed that California’s plan was accepted through this procedure. In addition, the State Board took the extra step of working with Educational Testing Service to develop tests using the “universal design” theory in order to avoid any inherent disadvantages to LEP students and to ensure the validity of the tests.

    The State Board also made its decision based on advice made by an Expert Panel. This panel recommended against testing in primary languages for several reasons, which the State Board then addressed and deliberated in open meetings. Included in these reasons was a voter enacted proposition (“Prop 227”) that declares "all children in California public schools shall be taught English as rapidly and effectively as possible." The panel felt that based on Prop 227 and its implementation in the classroom, “testing in primary languages would send confusing messages throughout California’s education system.” In addition, the panel found that the proficiency of students in their primary language varies widely and since more than 90 percent of LEP students are instructed in English, testing in their primary languages would not improve the accuracy of test results. Further, it would not be practicable to attempt to provide testing in primary languages for all of the different languages spoken in California schools, and the panel did not feel it was appropriate to exclude some languages in favor of others. Finally, the panel found that English language arts skills could not be measured in a language other than English. Ultimately, the State Board agreed with the panel and decided in favor of accommodations for LEP students instead of primary language testing.

    The Court of Appeals carefully reviewed the record of the proceedings that resulted in these policy decisions and found that the decisions were not arbitrary, capricious, or lacking in evidentiary support. Further, the court determined that the State Board considered appropriate factors in light of NCLB directives and properly accommodated California state policies that were in line with the NCLB’s assessment and accountability framework. While the school districts may disagree with the particular plan that the State Board created, the State Board did not abuse its discretion, and the Court of Appeals refused to “don the hat of official second-guesser or otherwise exercise [its] independent judgment in reviewing the State Board’s policy decisions on how to test English learners.”

    What This Means To You

    Current testing procedures for LEP students pursuant to NCLB remain in effect after this court decision.