Lang Policy (2008) 7:201216 DOI 10.

1007/s10993-008-9097-4 ORIGINAL PAPER

NCLB and Californias English language learners: The perfect storm

Patricia Gandara Gabriel Baca

Received: 30 November 2007 / Accepted: 2 June 2008 / Published online: 20 August 2008 Springer Science+Business Media B.V. 2008

Abstract We argue here that the combination of U.S. federal education policy as embodied in the No Child Left Behind Act of 2001 with the passage of a California state initiative that required that nearly all classroom instruction [be] in English for a period not normally intended to exceed one year in 1998 created a perfect storm for English Learners. English Learners are thus provided inadequate and incomprehensible academic instruction. Federal law, meanwhile, requires that all students, even if they do not speak English, be tested annually in English for academic progress, and their schools be sanctioned if progress is not sufcient. Whether such demands can legitimately be made on schools is an unsettled issue across the United States. Californias case should serve as an example to others that forcing students to be assessed in a language they do not fully comprehend violates principles of social justice wherever it is practiced. Keywords Assessment Bilingual education NCLB English Learners English language learners Proposition 227 Education policy in the United States is highly decentralized to the individual states. Prior to the passage of No Child Left Behind in 2001, federal involvement in k-12 education had been largely limited to funding new initiatives such as vocational education or bilingual education and in assisting the states in areas where there were large concentrations of poor children. However, the passage of NCLB marked a new era in federal involvement in U.S. schools, and dramatic consequences have resulted. We argue here that the combination of NCLB with the passage of a state initiative to severely limit the use of primary language for instructional purposes (Proposition 227) in California in 1998 created a toxic environment for English
P. Gandara (&) G. Baca University of California, Los Angeles, CA, USA e-mail: gandara@gseis.ucla.edu

123

202

P. Gandara, G. Baca

Learners (EL) that resulted in a legal challenge brought by nine school districts in the state. The Coachella Case, named for the lead plaintiff, Coachella Valley Unied School District, is the perfect storm of federal (explicit) policy encountering state (implicit) policy, with disastrous local consequences. State restrictive language policy, making it illegal to use students primary language for instruction is incompatible with federal assessment policy, which requires all students to be tested annually, whether or not they speak English. In this article we examine the case of a group of small school districts with very high percentages of ELs attempting to literally survive in the face of a convergence of federal and state policies that have labeled the districts as educational failures and threatened to take them over. Their failing is that their ELs cannot pass standardized tests that are administered in a language that they do not understand. Federal policy, which on its face, appears to be sensitive to issues of ELs, in fact creates the conditions that exacerbate bad state policy by forcing the school districts to test them in English, even though by denition they do not have sufcient command of the language to be tested in it. The state, having passed a law that in most cases forbids the use of the primary language for instruction, willfully ignores federal policy that recommends that ELs be assessed in their primary language, at least in the rst three years. The federal government, perhaps having reluctantly included these protections for ELs in the law, refuses to confront the largest state, with 30% of all ELs in the country. And so, the districts are blamed for educational failure caused by policies over which they have no control. The lessons of this case are applicable broadly to schools that must negotiate conicting language education policies set by competing governmental entities, policymaking authorities, or education leaders who subscribe to different language ideologies. The lead authors of this paper participated actively in developing the case for the plaintiff districts, and analyzed the data and arguments brought to the court.

California turns to English only under Proposition 227 In 1998, California voters approved a voter initiative entitled English for the Children otherwise known as Proposition 227, that would come to have farreaching effects on education in that state. The law that resulted from the initiatives passage required that nearly all classroom instruction [be] in English. for a period not normally intended to exceed one year.1 The impetus behind this voter initiative was the deplorable state of EL achievement. The preamble of the voter initiative includes the following language: The public schools of California currently do a poor job of educating immigrant children, wasting nancial resources on costly experimental language programs whose failure over the past two decades is demonstrated by the current high drop-out rates and low English literacy levels of many immigrant children.2 There is little argument that ELs trail
1 Preamble to California Proposition 227 of 1998, available at: http://primary98.sos.ca.gov/VoterGuide/ Propositions/227text.htm. 2

Ibid.

123

NCLB and Californias English language learners: The perfect storm

203

behind virtually all other students on all measures of student achievement. For example, in 2007, nearly three times as many sixth grade ELs scored Below Basic in English Language Arts as did English Speakers57% vs. 20%. Math scores were not signicantly different. More than half (54%) of ELs scored Below Basic in the sixth grade compared to 24% of English speakers. The reason for these huge achievement gaps is arguable and complex, but there is little consensus that experimental language programs (aka bilingual education) were either the source of the problem or particularly costly (Gandara et al. 2003).3 Prior to the passage of Proposition 227, only 29% of ELs in California were enrolled in a bilingual class (Gandara 2000), so it was not likely that bilingual education was the source of underachievement for the great majority of EL students. Moreover, existing research on the cost of educating ELs in different program models concludes that bilingual instruction offered by a bilingual teacher is among the least costly program alternatives.4 Nonetheless, the promise that if Proposition 227 passed, ELs would rapidly acquire a command of Englishnormally within one yearand then quickly be mainstreamed into regular classes where they would ourish had great intuitive appeal to voters. The measure passed with 61% of the vote. Because a very high percentagemore than 25%of students in California are ELs (California Department of Education 2007), any policy that affects these students inevitably has an impact on the entire state education system. Efforts at raising achievement levels for Californias students, who currently rank among the bottom in the nation,5 are held hostage to the fates of ELs. Given that they represent such a large, and growing,6 percentage of the student population and that they so persistently score at the lowest levels, California will not see a signicant increase in state-wide student achievement until the needs of ELs are addressed. It is estimated that today about 80% of teachers in the state have ELs in their classrooms (Center for the Future of Teaching and Learning 2005). Thus, the great majority of Californias teachers, too, are affected by policies that target ELs.

This statement was in response to the Williams v the State of California case distilled data on ELs and all other students that demonstrated seven areas in which EL students received a demonstrably inferior education, even when compared with other poor children. They argue that these factors were likely more related to the underachievement of EL students than any particular program design. Studies of the cost of bilingual education compared to other program alternatives generally nd that bilingual education when provided by a bilingual teacher is among the most cost effective strategies for educating English Learners. This is because the bilingual teacher is able to provide all of the instruction for his or her students, while other models generally rely on adjunct personnel (e.g., resource teachers, special bilingual aides) to assist with instruction. See Parrish et al. (2006), Huffman and Samulon (1981). Scores in fourth grade reading and mathematics in 2007 on The National Assessment of Educational Progress (NAEP) also known as The Nations Report Card, show that only three states (Alabama, Mississippi, and Louisiana) and the District of Columbia score as low or lower than California. Available at: http://nces.ed.gov/nationsreportcard/nde/statecomp/sortingSingleYear.asp More than half of the kindergarten students entering California schools in 2007 were ELs. See http://www.cde.ca.gov/language census.

123

204

P. Gandara, G. Baca

Teachers struggle to meet EL students needs One major impact of the passage of Proposition 227 was the rapid assignment of EL students to mainstream classrooms, normally after only one year in a special setting, where teachers with little training or experience with ELs were charged with instructing them. In the aftermath of the states shift to English only instruction, several studies reported that many teachers without specialized training or the skills to communicate with their students or their parents were frustrated with their inability to meet the needs of these students (Gutierrez et al. 2000; Gandara and Maxwell-Jolly 2005). Moreover, teachers who did have experience and trainingbilingually certied teacherswere threatened with lawsuits if they used the skills they had acquired. Immediately after the passage of Proposition 227, Californias teachers union sued the state to invalidate the law because it allowed parents to le a lawsuit against a teacher for using a childs primary language for instructional purposes. The union contended that the law was vague and that it failed to provide rm guidelines about what was meant by instruction occurring overwhelmingly in English. They argued that the law created anxiety in teachers about what amount of primary language was permissible. The plaintiffs also showed how the dictum to teach overwhelmingly in English was interpreted radically differently in different districts. Nonetheless, the district court found that the language was not excessively vague and basically used the Supreme Courts logic about pornography: It may be difcult to dene, but I know it when I see it.7 Perhaps the most consistent nding of studies of the impact of Proposition 227 was the confusion and uneven implementation that occurred in its aftermath.8 Proposition 227 made clear that schools should curtail bilingual instruction to the maximum extent possible, but it was very unclear about what teachers should do instead. It was anyones guess what Structured English Immersion was supposed to look like since no formal denition was offered, only the following language was included in the law: Structured English Immersion: an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language (Proposition 227). As such, schools did a lot of different things, and many just did the same thing they were doing before the passage of Proposition 227. The common thread, though, was that from classroom to classroom, and from school to school teachers and principals were making their own judgments about what the law intended. Enter NCLB 2002 Low achievement by EL students, confused and frustrated educators, and lack of a consistent curriculum was the situation in California in 2002 when No Child Left
7

In the case Jacobellis v. Ohio, 378 U.S. 184 (1964), Justice Potter Stewart declined to dene pornography with this now famous phrase. See, for example, Gutierrez et al. (2000), Maxwell-Jolly (2000), Garcia and Curry-Rodriguez (2000).

123

NCLB and Californias English language learners: The perfect storm

205

Behind, the most recent reauthorization of the Elementary and Secondary Education Act, came into effect. While NCLB was controversial from the beginning, because it asserted unprecedented (and some argued unconstitutional) authority over education in the states, it was not until it began to be fully implemented at the state level that the problems it would create for ELs would become clear. One little observed fact, however, set the stage for the upcoming battles. NCLB was the instrument that, after decades of incursions on the original Bilingual Education Act of 1968, nally removed all references within the Department of Education to Bilingual Education. The ofce of Bilingual Education and Minority Languages Affairs (OBEMLA) became under NCLB, the Ofce of English Language Acquisition, Language Enhancement and Academic Achievement for Limited English Procient Students, popularly known as OELA. While this happened with little fanfare, and seemingly little immediate impact, in fact, the negation of the language of bilingualism set a tone that we argue has undermined protections for these students and reinforced misguided policies in California and elsewhere.

The Impact of NCLB on EL teachers A recent survey of 5300 educators (Gandara et al. 2006) conducted in California revealed that most teachers, even those who ostensibly have taken coursework and professional development workshops designed to impart skills to meet the needs of EL students, report they do not feel prepared to teach them. In many ways, this is hardly surprising as there is no consensus in the eld about what critical competencies teachers must have to be effective with ELs (see Adger et al. 2002). And even while NCLB requires that all schools have teachers who have met the criteria for being highly qualied, there is no mention in the law about the qualications necessary to teach EL students. NCLB is silent on the qualications for being a highly qualied teacher of students who do not speak English. Moreover, there is little attention given to providing skills for the great majority of California teachers who are now expected to have one or more EL students in their classes (Center for the Future of Teaching and Learning 2005). Data show that the typical teacher of EL students in California receives no more than two hours of professional development on how to teach EL students over a three year period, and that even this is of uneven quality (see Gandara et al. 2003). If EL students are going to be rapidly mainstreamed, as is happening under Proposition 227, the teachers to whom they are assigned must be prepared to meet their needs. NCLB is not without its merits. As many have noted, because it required the disaggregation of student achievement data by subgroup, including ELs, it brought much needed attention to the plight of these students and shone a spotlight on their serious underachievement. Heretofore, schools could ignore these students if the schools overall performance was satisfactory. No more. But it has also had some profoundly negative effects on ELs, not just because of awed policy, but because of things it either does not say or does not enforce. And, the laws impact has been magnied substantially by its conuence with Proposition 227.

123

206

P. Gandara, G. Baca

Critics of the reauthorization of NCLB have appeared from both ends of the political spectrum. Conservatives have argued that the law is too prescriptive and infringes on states rights; they assert that the federal government has no business meddling in state education policies. Progressives argue that the law hurts those students most that it ostensibly sought to help because of unreasonable demands, inadequate resources to meet those demands, and sanctions that demoralize school personnel who are working hard to improve outcomes for students. A key way in which many educators argue that low- income students have been harmed by NCLB is in the forced narrowing of curriculum to meet the rigid testing standards of the law (see Wright and Choi 2006 for a discussion of the impact of the law on curriculum narrowing). A complex formula of adequate yearly progress (AYP) must be achieved by each subgroup of each school in order to remain in good standing with the law and all children must be procient in language arts, math, and science by 2014. Both of those goals are clearly impossible for all children. As Diane Ravitch, former U.S. Assistant Secretary of Education, points out in a recent Op-Ed piece in the New York Times: this has never been accomplished by any nation, state, or school district and in her words is an absurd goal (Ravitch 2007). Yet, to avoid sanctions and ultimately having their schools dismantled and losing their jobs, many teachers have resorted to focusing almost exclusively on preparing students to take the tests (Berliner and Nichols 2007).9 As a result, Californias EL students have been subjected to an extraordinary narrowing of the curriculum because of the challenges presented by their lack of English prociency. To the extent that this is occurring disproportionately to ELs, it raises state constitutional questions about equitable access to the curriculum and certainly runs the risk of alienating these students from school as much of what they nd engaging and interesting in school is stripped away in favor of test preparation.

NCLB and Proposition 227: The perfect storm All of the foregoing would be bad enough if students were at least assessed in a valid and reliable manner to test whether such extreme measures were actually working to increase their achievement. However, California, in a post-Proposition 227 era, has chosen to implement an English only testing regimen, although this is not required, or even recommended, under NCLB, nor ironically, even under Proposition 227. Proposition 227 is silent on issues of assessment. The exclusive use

In a recent study, Gandara and Rumberger (forthcoming) conducted of resource needs for ELs in California, principals and teachers in schools that were exceeding the norm for the state with respect to EL scores told us that they had focused their energies and their time on preparing for the tests, and this necessarily meant that some other things could not be covered; McMurrer 2007, reports that in a sample of approximately 350 districts nationwide, 44% noted that they had to cut time from Science, Social Studies, Art, Music, Physical Education and other areas to increase time in English and Math as a result of NCLB.

123

NCLB and Californias English language learners: The perfect storm

207

of English to test students for state and federal NCLB accountability has had a negative impact on the remaining bilingual programs that operate at the request of parents (Zehr 2007). The theory behind bilingual instruction is that students will acquire academic English more slowly initially but that academic learning will proceed apace of English speaking peers, and the data bear this out (Goldenberg 2006). In fact, the research on primary language instruction, through wellimplemented bilingual or dual language programs, now has achieved consensus that long term outcomes for these students are often superior to those for English only instructed pupils (see Goldenberg 2006, for a discussion of this research). Nonetheless, English only testing policy places these programs at risk because students are not initially able to compete in English with their English only peers. The appearance of lower scores in the rst years of instruction invites sanctions for not making sufcient yearly progress, even though research has established that this is the normal pattern, later to be followed by an upturn in scores (see, for example, Ramirez 1992; Genesee et al. 2006). No leeway is given to these programs and, as a result, teachers often feel pressure to shift to English only in order to produce better test scores in English in the early years. Data show that these gains are often short lived, and students begin to falter as the English curriculum becomes more cognitively demanding in upper grades (Gandara et al. 2003). The emphasis on English only testing has also had a particularly pernicious impact on secondary studentsthe fastest growing portion of the EL population. The particular circumstances of these students have been ignored by the state in using an exit exam developed for English speakers that bars many EL students from receiving a diploma even when they have taken and passed all classes required for graduation. For example, Rogers, Holme and Silver (Rogers et al. 2006) found that, with the exception of special education students, ELs were more likely to fail the California High School Exit Exam (CAHSEE) than all other subgroups. In fact, for the class of 2006, approximately 40% of ELs had failed each test, math and language arts. Since both parts of the exam must be passed to qualify for the diploma, an exceptionally high percentage of ELs who had continued their education through 12th grade were not eligible to graduate with their class in 2006.10 While NCLB does not require the state to use an exit exam as its measure of achievement in high school, or to use one that is in English only, the fact that it permits this practice to continue, places secondary ELs at high risk for not receiving a diploma. Little is known about students who do not pass the CAHSEE, although the state has been compelled to provide tutoring for two years beyond 12th grade to help these students acquire a diploma. Unfortunately, the state data system does not allow it to actually track these students over time. A recent report, however, suggests that the state policy to require every student to take and pass an exit exam

Because the state does not report data by individual student, it is not possible to know what the overlap was between failing both math and language arts, versus simply failing one test. Thus the percent of EL students statewide who were not eligible for a diploma based on failure to pass the CAHSEE would range between 40% and 79%.

10

123

208

P. Gandara, G. Baca

in English only exacerbates the already high dropout rate among secondary EL students.11 What is less often mentioned in these debates is that NCLB actually contains language that can and should protect many ELs, if it were taken seriously and if there were actually an attempt to enforce these provisions. The language in Title I directs the states to use tests that are valid and reliable for EL students. [T]he inclusion of limited English procient students, who shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments administered, and to the extent practicable assessments in the language and form most likely to yield accurate data on what students know and can do in academic content areas Title I only requires that EL students be tested in English for reading and language arts in the case of any student who has attended school in the United States (not including Puerto Rico) for three or more consecutive school years, except that if the local educational agency determines, on a case-by-case basis that academic assessments in another language or form would likely yield more accurate and reliable information on what such students know and can do, the local educational agency may make a determination to assess such students in the appropriate language other than English for a period that does not exceed two additional consecutive years [Emphasis added]. There is no mention in NCLB about testing students knowledge of math, science, or anything else in English. And several states have allowed students to test in these subjects in their primary language.12 And yet, California assesses all of its EL students in English only, whether they are in bilingual programs, have been educated in another language outside the country, or only speak a non-English language and provides no systematic accommodations for these students. A recent survey of districts found that only three percent of students are actually provided with accommodations, and most accommodations provided to EL students are not of a kind that have been shown to have any particular impact on their ability to perform in a test they do not fully understand (Coachella Valley Unied School District et al. v. State of California, Arnold Schwarzenegger et al). In fact, a Memorandum of the State Board of Education, dated September 25, 2002 noted that: The federal legislation suggests that in order for states to accomplish receiving valid and reliable scores and accurately measuring ELs academic achievement, states should provide an alternative system of standards-based assessments in each students primary language, insofar as is practical (Supplemental Memorandum of the State Board of Education 2002). In a Last Minute Memorandum of the State Board of Education dated October 8, 2002 (State of California 2002), it was reported that the Expert Panel
11 See HUMRRO (2007), 8th Independent Evaluation of the CAHSEE. HUMRRO is an independent, non-prot organization that conducts research to improve individual, team and organizational performance. 12 There are currently nine states that offer testing of academic content in a language other than English and whose scores are used in calculating AYP: Delaware, New Mexico, New York, Oregon, Colorado, Kansas, Texas, Pennsylvania and Ohio.

123

NCLB and Californias English language learners: The perfect storm

209

[State Board of Education and California Department of Education representatives] reviewed testing policies in other states with signicant EL populations. From the outset of the discussion, however, panel members noted that the policy environment in California was different from other states. In this policy context, creating primary language tests could send conicting signals to the education system. Thus, the response of the state to NCLBs requirement of valid and reliable tests was to allow EL students (1) to be tested in a separate room; (2) take breaks between sections of a test; (3) be provided extra time; and (4) use glossaries.13 Even so, allowing these accommodations is different from requiring them, and so it was not surprising that so few EL students were provided any accommodation at all. State policy was being constructed in an environment of English only, which was strongly supported by the State Board of Education. Although the assessment policy they devised went counter to NCLB requirements, and nothing in state law or regulation required the state or the districts to test students in English only, the Board had chosen to use the passage of Proposition 227 as a rationale for an assessment policy that they knew would push the state further down the road toward eradication of primary language programs and toward more rapid transition to English. When students are tested in English only, and thus risk causing their schools to be labeled as failures if they do not do well, then schools often believe they cannot afford to continue their bilingual programs, which can initially delay the acquisition of English. NCLB provisions notwithstanding, California has been given the green light to continue the practice of English only testing by the federal Department of Education, which has done nothing to enforce its own law.

Districts rise up In June 2005, nine school districts in California, and three state-wide non-prot organizations, including the California Association for Bilingual Education; Californians Together, a statewide coalition of parents, teachers, education advocates and civil rights organizations; and California LULAC, a state afliate of the National League of United Latin American Citizens, an Hispanic civil rights organization, banded together under the lead district, Coachella, to sue the state of California for failing to comply with the provisions of NCLB, even though the federal government does not enforce them. Seven of the districts, including Coachella, were already identied as Program Improvement, and the others fully expected to fall into this category shortly, as they averaged more than two-thirds of their students as ELs. Given that these students by denition do not have a mastery of the language of the test, it isas state ofcials have been quoted as conceding impossible for these students to achieve mastery on tests in English only. Therefore
13 It is important to note that no research has ever shown that English Learners are able to perform better on a test that is unintelligible to them by placing them in a separate room or giving them breaks between testing sessions. Additional time may, under some circumstances, aid in taking a test, but this would appear to depend on the level of understanding of English that the student has, and does not raise scores dramatically. See Abedi et al. (2003, 2005).

123

210

P. Gandara, G. Baca

the districts were in a no-win situation: receive sanctions from the state and federal government for not testing these students, or receive sanctions because the students could not make adequate yearly progress on a test they could not understand. They had nothing to lose, except the costs of going to court. And since ultimately their schools could be dismantled and their staffs let go, they really had no choice but to pursue a just resolution to the dilemma in which they found themselves. They were at the center of the perfect storm: a State Board of Education that not only supported the letter of the law in Proposition 227, but chose to go well beyond it, and the testing requirements of NCLB that forced the state to assess all students, and provided no relief for students who did not understand the language of the tests.

Why Coachella? Taking on the leadership for a lawsuit against the state must be an act of ultimate frustration, as it invites criticism of the district and its leadership by the state and uses critical human and scal resources. Why would Coachella Valley Unied School District undertake to tilt at windmills in this way? The district is nestled in the Eastern part of the Coachella Valley, 25 miles southeast of Palm Springs, 72 miles east of Riverside, 130 miles east of Los Angeles and approximately 90 miles northwest of the Mexico-U.S. border. The district encompasses 1,200 square miles of rural farmland and desert. While the neighboring residential areas of the city of Coachella are largely rural and agricultural, producing some of Californias largest crops, the city of Coachella itself is experiencing an economic boom bringing increasing numbers of people and businesses to an already thriving economy.14 With over 900 employees, CVUSD is one of the largest employers in the incorporated cities which it surrounds, serving approximately 17,500 students, 97% of whom are Hispanic or Latino and 91% of whom are on free or reduced lunch. ELs and students who speak other languages beside English at home comprise 83% of the total student population. Approximately 91% of the schools are in Program Improvement, 80% are experiencing corrective action or restructuring efforts that include curricular changes and appointing outside experts. Importantly, the district leadership and governing board have made a direct and conscious effort to offer instructional programs in the primary language to students that are not procient in English through primary language maintenance, developmental and dual immersion programs. This has obviously created a great deal of contention. Many local educators feel compelled, on the one hand, to include the students primary language in instruction based on their own experience and reading of the research, while on the other hand, they feel tremendous pressure to rapidly mainstream ELs because they are being held to account for results on tests written in English. Clearly the districts adherence to more liberal primary language instructional policies places them out of alignment with most of the state and invites criticism that this is why they are struggling to meet testing standards. It is difcult to dismiss the idea
14 The economy is expanding beyond that of large-scale agri-business to include landscaping, construction, domestic assistance, retail and service-related jobs and various social service industries.

123

NCLB and Californias English language learners: The perfect storm

211

that the State Department of Education might take a particular interest in defending itself against such a rogue district. The Superintendent of CVUSD has questioned the logic behind what he considers awed policy and has challenged the assumptions embedded in existing state policies that are supposedly aimed at creating a meaningful system of accountability. He has argued that if policymakers are going to place greater responsibility on local educators by threatening to label them as educational failures then they should provide tests that are sensitive to the language needs of ELs, more resources to support students learning, and allow districts greater authority and control over educational practices (Interview with Mr. Foch Tut Pensis, Superintendent of Coachella Valley Unied School District on 7th November). And there is merit to these assertions. Policymakers are banking on the notion that by requiring the results of assessments to be reported, school communities and parents will have access to important pieces of information about how well the schools and students in their neighborhoods are performing over time and pressure their schools to respond to this information with improved practice (Public Education Network 2003). However, it is difcult for stakeholders to remedy deciencies and ensure that ELs are afforded equal educational opportunities when the information that they receive from test scores solely in English does not necessarily reect what students know or have learned. In their efforts to correct shortcomings, local schools and districts invest large amounts of taxpayer dollars in programs and services that may not be helping in any signicant way. And this is evident in Coachella as well, where outside agencies and consultants have been hired to perform miracles when in fact test data yield little reliable information about where the problems actually lie. Lack of meaningful data on what students know and can do does exacerbate existing tensions and does nothing to better inform educators on how best to address students needs. Coachella et al. argued that Californias English only testing of ELs is not valid and reliable and as a result of its implementation not only has California acted in an arbitrary and capricious manner but, as a result of its testing practices it has facilitated the misappropriation of taxpayer funds in direct violation of existing state statutes. Thus, the objective of the lawsuit was to compel the state of CA to assess the academic progress of its ELs as required by the mandate of NCLB: in a valid and reliable manner that included (a) reasonable accommodations; and (b) to the extent practicable, assessments in the language and form most likely to yield accurate data on what students know and can do in academic content areas, until such students have achieved English language prociency. The plaintiffs argued that it was not unreasonable for California to test in the primary language where appropriate, at least for Spanish speakers, since other states with fewer ELs are being tested in other languages and since California has a history of using a statewide assessment in Spanish for diagnostic and placement purposes and has a standards-based equivalent Spanish version developed up to high school. Although the defendants argued that it would be too costly, this was obviously not at issue since the state had already developed much of the test. Nor, despite claims to the contrary, was the lack of appropriate technology. The fact that the state cannot test every EL in his or her primary language, an argument furthered by the defendants to

123

212

P. Gandara, G. Baca

make the case for testing none in primary language, was refuted by the person who chaired the technical advisory committee for the development of the state standards tests. Professor Haertel of Stanford noted the apparent absurdity of allowing the great majority of the states ELs to be tested on a test that was clearly invalid because the state could not serve every student in the same way (Declaration of Edward Haertel in Support of Plaintiffs Motion for Issuance of Writ of Mandate, in Coachella Valley Unied School District et al. v. State of California, Arnold Schwarzenegger et al., April 23, 2007). All studentsincluding many English speakerscould benet from reduced linguistic complexity and the great majority of students instructed in a language other than English (Spanish) could be tested more meaningfully (see Abedi and Gandara 2006). The states position on this demand was interesting. On the one hand, in the September 25th Memorandum, the State Board of Education appeared to dismiss the research on the effects of reduced linguistic complexity by noting that the contractors Content Review Panels routinely examine test questions to ensure that items are worded as simply as possible (September 25th Memorandam of State Board Members, pages CDE 1701). Later, the state attempted to defend itself on this issue by contending that simplication of the test items would render them too easy and therefore provide an unfair advantage to the EL students. The use of the term simplication obfuscated the actual intent of the plaintiffs and the research on which that demand was based. Reducing linguistic complexity removing unnecessary wordiness and replacing misleading language with more direct languagehas nothing to do with simplication of the test, and as the research has shown, results in a more valid test for all students (see, for example, Abedi et al. 2003, 2005). Moreover, the content review panels are generally composed primarily of curriculum experts, not specialists in psychometrics (see Educational Testing Service 2004). The plaintiffs further argued that California is in direct violation of its constitutional guarantee that California school children receive equitable educational opportunities. In their constitutional claims the plaintiffs assert the following: (a) that all students have a fundamental right to equal educational opportunities under the California constitution; (b) that Californias testing and accountability system discriminates against certain groups of children, namely ELs and children who attend schools with high percentages of ELs; (c) that the testing and the consequences of such testing deny these children equal educational opportunities; (d) and that as a consequence English Learners are disadvantaged academically amounting to a constitutional deprivation (Coachella Valley USD et al. v. State of California et al., SF Superior Court Case No. 505334). Notwithstanding all of these arguments, in June of 2007 Judge Kramer of the Superior Court in San Francisco handed down a preliminary decision, nding that he did not have authority to over-rule the judgment of the State Department of Education and left the current regulations standing. However, all districts have voted to appeal the decision and so the ultimate disposition of this case is not yet known. The decision will have important implications for the assessment of EL students not only in California, but beyond. The remedies that the suit seeks are the use of primary language tests where appropriate for purposes of accountability

123

NCLB and Californias English language learners: The perfect storm

213

measurement and the use of accommodations, in particular, reduced linguistic complexity of the tests, for all EL students. Of course, other alternatives to current testing practice, such as use of such portfolio assessment as suggested by the states own evaluator for the high school exit exam, could and should be considered if the courts ultimately decide in Coachella et al.s favor. Because California educates one-third of all the nations EL students, the stakes are high for this case. Many of the nations EL students would be directly affected, and many more could feel the effects indirectly, as other states and locales would no doubt use the ruling to bolster their own cases. In the last year, school districts in Northern Virginia attempted unsuccessfully to replace their English only standardized assessment of English Language Arts with a test of growth in English prociency, and Illinois was told to stop using its IMAGE test, which was designed to assess ELs growth in math and reading using items with reduced linguistic complexity. Both expressed frustration and deep concern for the welfare of their ELs as a result of having to adhere to a testing regimen that they argued made no sense. Fairfax County Superintendent of Schools Jack Dale was quoted as saying, What we have been telling the nation and the federal government is that children who are not yet competent in English are not going to pass a reading test [in English] (see Glod and Chandler 2007; Banchero 2007). If the provisions in NCLB allow us to re-examine what constitutes valid and reliable assessment, it will have provided a real service. On the other hand, NCLB has also created the conditions under which such testing has become so onerous. As the reauthorization of NCLB approaches, the case of California highlights some of the very real shortcomings of the current law as it affects EL students. Any effort to improve the accountability system of NCLB with respect to EL students should rst begin with the rationale for testing these students at all: ostensibly the purpose is to provide information about their needs so that schools can address those needs and raise their achievement to at least adequate levels. Of course, this rationale also assumes that schools will have, and apply, the resources needed to truly respond to these students needs once they are identied. States, like California, that have adopted English only policies need to rethink their usefulness in the context of the extant research and the real challenges that EL students face. Certainly, one effect of NCLB test requirements is to lay bare the reality that students do not achieve academic prociency in English in one year, or even two or three, as this kind of language policy asserts, and that to test them in English at these early stages of second language acquisition is unfair to both the students and the system. If California and other states and districts are not willing to rethink their language instructional practices, in fairness they must at least rethink their assessment policies because high-stakes testing in a language that students do not understand serves no ones interest. Importantly, the California case holds lessons for other states and nations that grapple with issues of accountability and equity, especially as they affect students who lack prociency in the language of instruction. There is general consensus that it was important to include ELs in the accountability framework of NCLB. The spotlight that was shone on the under-achievement of EL students was an important impetus to focus more attention on their educational needs, and some good may still

123

214

P. Gandara, G. Baca

come from this. However, it is clearly inappropriate to place high stakes on the outcomes of a test that students do not fully comprehend. Language policies in many other states and nations are more enlightened than those practiced in California, but the assessment of students whose best or only language is not that of the tests they are given is not an area in which there has been a great deal of attention internationally. It is also an unsettled issue across the United States. Californias case should serve as an example to others that forcing students to be assessed in a language they do not fully comprehend violates principles of social justice wherever it is practiced. Hopefully U.S. courts will ultimately afrm this as the case is heard on appeal.

References
Abedi, J., Courtney, M., & Leon, S. (2003). Effectiveness and validity of accommodations for English language learners in large-scale assessments (CSE Tech. Rep. No. 608). Los Angeles: University of California, National Center for Research on Evaluation, Standards, and Student Testing. Abedi, J., Courtney, M., Mirocha, J., Leon, S., & Goldberg, J. (2005). Language accommodations for English language learners in large-scale assessments: Bilingual dictionaries and linguistic modication (CSE Tech. Rep. No. 666). Los Angeles: University of California, National Center for Research on Evaluation, Standards, and Student Testing. Abedi, J., & Gandara, P. (2006). Performance of English language learners as a subgroup in large-scale assessment: Interaction of research and policy. Educational Measurement Issues and Practice, 25, 3646. Adger, C., Snow, C., & Christian, D. (2002). What teachers need to know about language. Washington DC: Center for Applied Linguistics. Banchero, S. (2007). Limited English kids face a tougher test. Chicago Tribune, November 9, 2007. Downloaded November 10, 2007: www.chicagotribune.com/news/local/chi-image_09nov09,1,176 9471.story. Berliner, D., & Nichols, S. (2007). High stakes testing is putting the nation at risk. Education Week, 26(27), 36, 48. California Department of Education. (2007). Fact book 2007: Handbook of education information, 2007. Available at: www.cde.ca.gov/re/pn/fb/documents/factbook2007.pdf. Center for the Future of Teaching and Learning. (2005). The status of the teaching Profession in California. Santa Cruz: CFTL. Available at: www.cftl.org. Coachella Valley USD et al. v. State of California et al., SF Superior Court Case No. 505334. Educational Testing Service. (2004). California Standardized Testing Program, Technical Manual. Edward, H. (2007). Declaration in Support of Plaintiffs Motion for Issuance of Writ of Mandate, in Coachella Valley Unied School District et al v. State of California, Arnold Schwarzenegger et al, April 23, 2007. Gandara, P. (2000). In the aftermath of the storm: English Learners in the Post-227 Era. Bilingual Research Journal, 24, Accessed Dec. 13, 2006 at: http://brj.asu.edu/v2412/articles/art2.html. Gandara, P., & Maxwell-Jolly, J. (2005). Critical issues in the development of the teacher corps for English Learners. In H. Waxman & K. Tellez (Eds.), Preparing quality teachers for English language learners. Mahweh, NJ: Lawrence Erlbaum Press. Gandara, P., Maxwell-Jolly, J., & Driscoll, A. (2006). Listening to teachers of English Learners. Santa Cruz: Center for the Future of Teaching Learning. Available at: www.cft.org. Gandara, P., Rumberger, R., Maxwell-Jolly, J., & Callahan, R. (2003). English Learners in California Schools: Unequal resources, unequal outcomes. Education Policy Analysis Archives, 11(36). Retrieved June 14, 2006 from: http://epaa.asu.edu/epaa/v11n36/. Gandara, P., & Rumberger, R. (forthcoming). Dening an adequate education for English Learners. Education Finance and Policy, forthcoming.

123

NCLB and Californias English language learners: The perfect storm

215

Garcia, E., & Curry-Rodriguez, J. (2000). The education of limited English procient students in California Schools: An assessment of the inuence of Proposition 227 on selected districts and schools. Bilingual Research Journal, 24(12), 1535. Available at: http://epaa.asu.edu/epaa/v11n26/. Genesee, F., Lindholm-Leary, K., Saunders, W., & Christian, D. (2006). Educating English language learners: A synthesis of research evidence. NY: Cambridge University Press. Glod, M., & Chandler, M. A. (2007). North Virginia Schools Set Back on No Child Test Goals. Washington Post, August 24, 2007. Downloaded November 12, 2007: www.washingtonpost.com/ wp-dyn/content/article/2007/08/23/AR2007082300846_pf.html. Goldenberg, C. (2006). Improving achievement for English Learners. What the research tells us. Education Week, 25(43), 3436. Gutierrez, K., Baquedano-Lopez, P., & Asato, J. (2000). English for the children: The new literacy of the old world order, language policy and educational reform. Bilingual Research Journal, 24. Accessed Dec. 13, 2006 at: http://brj.asu.edu/v2412/articles/art7.html. Huffman, P. C., & Samulon, M. (1981). Case studies of delivery and cost of bilingual education: A rand note. Santa Monica, California: The Rand Corporation, 1981. Human Resources Research Organization. (2007). Annual independent evaluation of CAHSEE. Alexandria, VA: HUMRRO. Interview with Foch Tut Pensis, Superintendent of Coachella Valley Unied School District, November 7th, 2007. Jacobellis v. Ohio, 378 U.S. 184 (1964). Maxwell-Jolly, L. (2000). Factors inuencing implementation of mandated policy change: Proposition 227 in Seven Northern California School Districts. Bilingual Research Journal, 24(1-2), Winter & Spring. Available at: http://brj.asu.edu/v2412/pdf/ar4.pdf. McMurrer, J. (2007). Choices, changes, and challenges: Curriculum and instruction in the NCLB era. Washington DC: Center for Education Policy. Memorandum to State Board Members, September 25th, page CDE 1701. Parrish, T., Merickel, A., Perz, M., Linquanti, R., Socias, M., Spain, A., Speroni, C., Esra, P., Brock, L., & Delancey, D. (2006). Effects of the implementation of Proposition 227 on the education of English Learners, K-12; ndings from a ve-year evaluation. Washington, D.C.: American Institutes for Research. Proposition 227 of 1998, Full Text of the Proposed Law available at: http://primary 98.sos.ca.gov/VoterGuide/Propositions/227text.htm. Proposition 227 of 1998, Full Text of the Proposed Law available at: http://primary98.sos.ca.gov/Voter Guide/Propositions/227text.htm. Public Education Network. (2003). An action guide for community and parent leaders: Using NCLB to improve student achievement. Ramirez, J. D. (1992). Executive summary. Bilingual Research Journal, 16(1-2), 62. Ravitch, D. (2007). New York Times Op. Ed. Column, October 3, 2007. Downloaded October 3, 2007 at: http://www.nytimes.com/2007/10/03/opinion/03ravitch.html. Rogers, J., Holme, J., & Silver, D. (2006). More questions than answers: CAHSEE results, opportunity to learn, & the class of 2006. Los Angeles: UCLA/IDEA Publications. Available at: http://www. idea.gseis.ucla.edu/resources/exitexam/pdfs/IDEA-CAHSEEff.pdf. State of California, Department of Education, Last Minute Memorandum to State Board Members, Subject: Testing Policies for English Learners Students, October 8, 2002. Supplemental Memorandum of the State Board of Education, September 25, 2002, Testing Policies for English Learners. CDE 1694. Wright, W., & Choi, D. (2006). The impact of language and high-stakes testing policies on elementary school English language learners in Arizona. Education Policy Analysis, 14, 13. http://www.Epaa. asu.edu/epaa/v14n13/. Retrieved November 5, 2007. Zehr, M. A. (2007). NCLB seen as a damper on bilingual programs: Some states and districts say testing requirements may discourage efforts. Education Week, online May 8, 2007.

Author Biographies
Patricia Gandara is Professor of Education in the Graduate School of Education at UCLA where she is Co-Director of the Civil Rights Project/Proyecto Derechos Civiles and Associate Director of the UC Linguistic Minority Research Institute. She received her PhD in Educational Psychology from the

123

216

P. Gandara, G. Baca

University of California Los Angeles. Professor Gandaras research focuses on language policy, access to equitable education for underrepresented students, and the education of Latino youth. She is the author of numerous articles and several books, including the forthcoming, The Latino Education Crisis. The Consequences of Failed Social Policies, with Harvard University Press. Other recent publications include: Gandara, P., & Rumberger, R. Dening an adequate education for English learners. Education Finance and Policy, 3, 130148; Gandara, P., & Gomez, M. Cecilia (forthcoming). Language policy in education. In B. Schneider, G. Sykes, & D. Plank (Eds.), AERA handbook on educational policy research. Washington DC: AERA; Gandara, P., & Rumberger, R. (in press). Immigration, language, and education: How does language policy structure opportunity? Teachers College Record. Gabriel Baca is a doctoral candidate in Urban Schooling at the Graduate School of Education and Information Studies at the University of California, Los Angeles. He holds a BA in Political Science and Latin American Studies from the University of California, at Berkeley and an MEd in School Leadership from Harvard University. He is a long time resident and former k-12 educator of the community of Coachella, California. His research interests include: the politics of education, language policy and implementation, equity school reform and notions of public power and social activism to enact social, political and educational change. His doctoral dissertation uses a blended conceptual framework, which draws from studies of equity reform in education, scholarship on education organizing and social movement theory to examine how activist groups leverage power for advancing equity-focused education policy for English learners within the context of market-based education accountability and restrictive language policies.

123