Date: 6/01/07

A San Francisco County Superior Court judge has ruled that the state of California is not required to provide standardized assessment tests in the native languages of English learners in order to comply with the No Child Left Behind Act.

NCLB requires states to establish and administer "valid and reliable" tests for all students in core academic subjects. California’s state Board of ducation chose, through its state NCLB plan, to require districts to administer standardized tests in English only for calculation of adequate yearly progress.

A coalition of 10 school districts and other groups challenged the policy in court. They pointed out that schools and districts were subject to potentially

expensive sanctions under NCLB solely because of their EL students’ low test scores—despite their contention that the English-language testing instruments were not “valid and reliable” measures of the EL students’ academic achievements.

The lawsuit sought to compel the state board to allow school districts to administer standardized tests to English learner students in their native languages. However, the court found that it did not have the authority to force the state board to change its policy.

While NCLB created the generalized goal of "valid and reliable testing," Judge Richard A. Kramer observed that the law does not specify how that goal is to be accomplished. That means that each state has discretionary authority to determine how best to achieve that goal. The court could only compel the state board to change its policy if the board's decision to give standardized tests only in English was arbitrary and capricious. In this case, the court could not find any such abuse of discretion, the judge determined.

Kramer grounded his finding, in part, on voter approval of Proposition 227. That 1998 initiative attempted to deal with what Kramer termed the “obvious educational challenge" posed by the linguistic variety among California's students by mandating, with limited exceptions, that students be taught in English.

Kramer conceded that the issues Proposition 227 dealt with may differ from those involved in NCLB assessments of EL students. He concluded, however, that because the students are largely taught in English, the requirement to assess all students in English was not arbitrary and capricious. Thus, the state board’s decision that translation and evaluation of assessments in many different languages would be impracticable was appropriate, the judge ruled.

Impact of the decision

This decision does not answer the question of whether the current tests used are "valid and reliable" for EL students. Rather, the judge's order makes clear that he does not believe he has the authority in this case to force the state board to revise its NCLB plan.

According to Kramer, "It is emphasized that rational people could differ as to whether administration of NCLB assessments in a second language, or in multiple additional languages, is also feasible, or desirable, or otherwise appropriate. The test for this court, however, is not to choose among competing rational alternatives and then mandate the judicially chosen one. To the contrary, decisions such as how to assess student performance for purposes of NCLB are best left to other branches of government." Plaintiff school districts are determining whether to appeal this decision.

Related link:

• A copy of the decision: Coachella Valley Unified School District, et al. v. State of California et al. can be found at: http://www.sftc.org. The case number is 505334.