E.S.E.A. Watch 17.1

By Bob Peterson

Illustrator: Susan Ruggles

The future of these children in a bilingual program is uncertain because of the testing requirements in E.S.E.A.
– photo: Susan Ruggles

With this issue, Rethinking Schools launches a regular column about the impact of the reauthorized Elementary and Secondary Education Act (ESEA). This legislation – with its punitive testing provisions – is unprecedented in U.S. history. Rethinking Schools editors Bob Peterson and Stan Karp will write this column, but they welcome submissions for guest columns. For an in-depth analysis of the law, see Stan Karp’s article, “Let Them Eat Tests” that appeared in Rethinking Schools, Vol. 16, #4.


When U.S. educators and students returned to school this fall, they were greeted with news about whether their school was designated a “school in need of improvement.” The parents of students in those schools received letters informing them they could move their children to another public school. Teachers heard once again how they must emphasize improving test scores – the sole determinant of such rankings.

While many may have breathed a sigh of relief because their school was not on the list, they may not have to wait long. Some state superintendents predict that within a few years upwards of 80 percent of all schools will be on the list. This is particularly the case for schools serving Limited English Proficient (LEP) students. I know. I work at an innovative two-way bilingual school and we’re on the preliminary list, along with a majority of the other bilingual schools in Milwaukee. Now, as I analyze why certain bilingual schools are on the list, some disturbing and potentially illegal things emerge.

First, a little background. The reauthorization of the ESEA required all state departments of education to identify “schools in need of improvement” based on test scores from previous years. Estimates are that approximately 10 percent – some 8,600 schools – are on the preliminary lists. Given huge variations in states’ standards, cut-off scores, and definitions of adequate yearly progress (AYP), the number designated this fall as “schools in need of improvement” varies greatly from state to state – from zero schools in Arkansas to more than 40 percent of the schools in Michigan.

The law requires schools to steadily increase the percentage of students who score “proficient” or above on standardized tests. And it states that 100 percent of students should reach proficiency in the next 12 years. Simple as that. By the 2013-2014 school year, ALL students in the United States must score proficient or above in grades 3 through 8, and once again in high school.

A fine-sounding goal – but very unrealistic even if the resources were made available to underfunded schools (which they are not). Anyone who actually works with children (and doesn’t just pass legislation about children) knows that there are too many variables in children’s lives to hold 100 percent of them – and their schools – accountable for anything, much less passing a standardized test of questionable value.

Perhaps the next law will hold police departments responsible for 100 percent crime-free cities by 2013.


Students who are limited in their English proficiency pose particularly daunting problems for schools. There are more than 4.4 million LEP children in public schools in the United States – twice the number of a decade ago, and nearly 10 percent of total enrollment. The reauthorized ESEA completes an effort started in 1994 to include all LEP students in state assessment programs. This is something that the National Association for Bilingual Education (NABE) has advocated for years, arguing that without such a requirement many LEP students were simply exempted from the tests and ignored. “The practice of exempting LEP students undermines accountability,” Patricia Loera, legislative director of NABE told me. “Having them included is a key way we can ensure that all LEP students get the education they deserve.”

But the devil is in the details. For example, many states will likely go from exempting LEP students to just throwing them into English tests. An official with Indiana’s Department of Education, who wished to remain anonymous, told me that while in the past LEP students were not forced to take standardized tests in English, “that has all changed now with ESEA.” In Indiana, even immigrant students who have been in the United States for only one week could be forced to take the test in a language they can’t understand. Some states will force LEP students to take tests in English after their first year of being in school. NABE disagrees with such policies, and at this point is trying to ascertain how many states will be making students take tests they don’t understand.

Paul Weckstein of the Center for Law and Education in Washington, D.C., questions whether such practices are legal. “Such practices may violate ESEA itself, and might also run afoul of civil rights laws,” he told me. He noted the general requirement in ESEA that the assessments be “used for purposes for which such assessments are valid and reliable, and be consistent with relevant, nationally recognized professional and technical standards.” Weckstein wonders how testing children in a language they don’t understand can be considered valid or reliable.

In fact, the ESEA legislation explicitly states that LEP students “shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments administered to such students … including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do in academic content areas, until such students have achieved English language proficiency.”

The operative phrase is “to the extent practicable,” and many state education departments have decided that it just isn’t “practicable” to test students in their native language or use alternative assessments. Native-language tests and other forms of alternative assessments are permissible under ESEA for the first three years that LEP students attend schools in the United States and for an additional two, if educators determine on a student-by-student basis that those assessments will give reliable information about student progress. (ESEA requires assessing all LEP students annually to measure growth in English, but that is in addition to their participation in the states’ overall assessment programs.)

The Indiana official stated that they have 212 language groups in the state and that it was not “practicable” for the state to develop native language forms of assessment for all those students. Lorea, of NABE, counters that nearly 80 percent of all LEP students in the United States are Spanish-speaking, and that schools should make provisions for LEP students regardless of their language. “It’s going to be an uphill fight at each state house to protect the rights of LEP students and bilingual education.”

The same kind of arguments are heard in Wisconsin. I was told that in addition to the cost of ensuring the tests are reliable and valid, another reason the state decided not to use Spanish-language standardized tests was that other language minority groups such as the Hmong would not have the same option. “This would be discriminatory against some language groups,” one Wisconsin official told me.

Weckstein of the Center for Law and Education almost laughed at that argument, “The remedy for inadequate treatment of one group [in this case the Hmong] can’t be that now we are going to inadequately serve another group [the Spanish-speaking LEP students]. The state has to come up with a better solution or they are liable to end up in court.” Weckstein noted that the law explicitly requires states to make efforts to identify and develop assessments in languages other than English.

Short of providing non-English assessments, states are required to provide “accommodations” when LEP students take tests in English. This requirement is controversial as well. A study done in 2000 by the Center for Equity and Excellence in Education at George Washington University found that states most frequently use accommodations that do not support the linguistic needs of LEP students, but rather ones that are carryovers from those designed for students with disabilities. The best accommodations, such as test translation, are among the least used, the researchers found.


The more one looks at the ESEA’s impact on LEP students, the more dismal the picture becomes. In Wisconsin – where alternative assessments are used – the state did not include the scores from those assessments in the initial calculations for AYP. A frustrated Milwaukee testing administrator lamented that if a school had 100 students, 50 of whom were LEP, and the 50 English-language students all scored proficient, it wouldn’t matter how well the LEP students did on their alternative assessments because they would not be counted. “The school could never get a score higher than 50 percent” the administrator stated, “which will mean it will never be able to get off the [school in need of improvement] list.”

According to Tim Boals, an official in the Wisconsin Department of Public Instruction who coordinates bilingual and English as a Second Language education, this situation is not going to change substantially. “We will probably be able to give students an equivalent score on math, science, and social studies tests, but there are no plans to allow students to receive a proficient score in reading and language arts unless they do so in English.”


Ironically, ESEA frequently uses the term “scientifically based” in its description of the type of reading program it supports, but the law’s references to LEP students do not correspond to what scientific research says about second-language learning. Two points are important here. First, researchers generally agree that it takes a child four to seven years to learn a second language well enough to function at grade level in an academic environment. But the law requires students to be tested in English after attending school for three years in the United States (with provision on a case-by-case basis for a two year extension). Moreover, the law’s AYP provision has generated unprecedented pressures on states and districts to have LEP students participate in state assessment programs in English – sometimes after being in this country only a year or less.

Second, quality bilingual programs that include literacy instruction in the student’s native language are among the best ways to help students become literate in English in the long term. Unfortunately, the law’s AYP provisions seem to be significantly compromising some of the few bilingual programs that have managed to survive these past few years of anti-bilingual hysteria.

Stanford University Professor Kenji Hakuta, a researcher on language issues, argues that the 1981 Castañeda v. Pickard decision of the U.S. 5th Circuit Court of Appeals provides the legal basis to question many of these assessment practices for LEP students. In testimony before the U.S. Commission on Civil Rights last April he said, “It is easy to see what a disadvantage English language learners are operating from without viable testing accommodations. By not intervening, states are failing to meet their legal obligation under Castañeda v. Pickard to educate language minority students and are promoting inequitable environments in the nation’s schools.”

It’s not clear what the consequences will be from forcing states to include LEP students into their accountability systems. In my mind, it won’t necessarily be an improvement. Forcing children to take tests in a language they can’t understand, or refusing to count the scores of students who take assessments in languages they can, doesn’t seem to be a step forward in guaranteeing that “no child will be left behind.”

Bob Peterson (repmilw@aol.com) is a bilingual fifth grade teacher at La Escuela Fratney and an editor of Rethinking Schools. The future of these children in a two-bilingual program is uncertain because of the testing requirements in E.S.E.A.