Dear Mary Jean and Delia:
Thank you for the opportunity to comment on the draft guidance on assessing LEP students “to the extent practicable” in the language and form most likely to yield accurate and reliable information on what these students know and are able to do, as required by Title I. We have both some general comments, and some specific suggestions, as outlined below.
General Thoughts
We affirm the Department’s decision to provide more guidance to states and locals about how to undertake this important task. Having said that, we believe the guidance could be structured in a way that is more useful to states and districts than the current draft is. Rather than offering some observations about the law, ED should use this guidance to tell states what their clear legal obligations are to assess LEP students, and refer states and districts to documents which clearly articulate their obligations under the law and how to meet them. We believe that states want clearer guidance about how to comply with the law, including how to deal with the technically difficult matters around assessing LEP students.
Specific Recommendations
Recommendation: Change “normed on” to “developed and piloted using a population of”
3. page 1, paragraph 2, lines 4-5. The use of the phase “English language test” has two meanings: a test of a student’s knowledge of the English language; or, a test written in English. Here, ED means the latter.
Recommendation: delete “an English language test.” Add “a test written in English.” (alternatively, ED could add a footnote that explains that English language test means a test written in English, which would clarify the issue).
4. page 1, last paragraph. This paragraph assumes a stronger correlation between the language of instruction and the language of assessment than we believe makes sense. Just because a student has never received instruction in his native language does not necessarily mean that an assessment in English is “most likely to yield accurate and reliable information on what [the student] know[s] and can do.” (20 U.S.C. § 6311(b)(3)(F)(iii)). Similarly, a student who has just recently been placed in an English language class might not be able to demonstrate mastery of skills on a test in English, when he would demonstrate mastery if the test were in his native language. Language of instruction is not necessarily a good indicator of the language in which a student is able to demonstrate what he knows and is able to do. Recommendation: ED must tell states that the determination about the language in which a student is assessed must be made on a case by case basis, taking into account where the student is in his English language learning, and whether he would be able to demonstrate more effectively what he knows and is able to do if he took a native language assessment, or one in English.
5. Page 2, first full paragraph, line 2. “is sufficient to obtain accurate and reliable. . .”. The legal standard is much higher than whether the student’s knowledge of English is sufficient to obtain accurate and reliable information on what the student knows and is able to do. In fact, the law requires that students be evaluated in the language “most likely to yield accurate and reliable information on what such students know and can do.” (20 U.S.C. § 6311(b)(3)(F)(iii)). Recommendation: ED should tell states that meeting the legal standard requires an inquiry about what the best language of assessment is for each student, not whether the student has English skills that are “sufficient” to test him in English.
Recommendation: Delete “The first level of inquiry should be whether a LEP student’s knowledge of English is sufficient to obtain accurate and reliable information on what the student knows and can do.” Add “The first level of inquiry should be whether an assessment in English is the most likely to yield accurate and reliable information on what the student knows and can do, or whether a native language assessment would be more likely to yield such information.”
6. Page 2, third full paragraph (Native language tests), fist sentence. Same reasoning as comment, above. Recommendation: Delete “Even with accommodations, there may be LEP students whose proficiency in English is not sufficient for them to be reliably assessed in English.” Add “Even with accommodations, there may be LEP students for whom a test in English is not the most likely to yield accurate information about what the student knows and is able to do.”
7. Page 2, third full paragraph (Native language tests), line 6. “Practical” is not the same thing as “practicable.” Recommendation: ED should underscore that in those cases where English language tests are not the most likely to yield accurate and reliable information about what the student know and is able to do, the law creates a heavy presumption in favor of assessing the student in his native language. The idea that the state conduct a “cost benefit analysis,” by looking at the number of students who speak different language, and determining whether or not it is practical to assess students in their native languages, is in conflict with the legal standard. A better approach in the guidance is to tell states that there is a presumption in favor of assessing students in their native languages, when the native language is the most likely to yield accurate information about what students know and are able to do. Creating a burden in favor of assessing in native languages sends a message to states that this is really important, and they ought to be doing it whenever it is possible.
8. Page 3, last paragraph. While we generally applaud the use of rich, performance-based assessments like some of what is outlined in this paragraph, we believe it is essential that students who are alternatively assessed in their native languages be included in the accountability system. If they are not, they will become invisible in the educational system – schools won’t focus on them, because schools will not be held accountable for educating them. While there are many technical issues arising from trying to equate the state assessment and the alternative assessments, we believe there are ways to establish criteria to ensure that the results from both kinds of assessments can be used for accountability purposes. For example, can students who are alternatively assessed in Illinois be given a “does not meet, meets, or exceeds” designation, like the students who take the Illinois Goals Assessment Program (IGAP)? There are issues that arise in this process. For example, most alternative assessments are scored by teachers. If the results of these alternative assessments are used for accountability purposes, teachers will likely be under enormous pressure to score the alternative assessments high. Thus, it is not enough to say that the instruments must “cover” the same standards being assessed for all students. The instruments, and the ways they are used and scored, must, for example, be valid and equally as rigorous as the state assessments.
Recommendation: ED should tell states that students who are alternatively assessed must be included in the state accountability system. We would be happy to work with ED on developing criteria for doing so.
9. Page 4, first full paragraph. We applaud the Department’s inclusion of information about Title VI and the EEOA. We have two recommendations about this section.
Recommendation: First, as noted above, it should be at the beginning of the document to underscore the importance of both Title VI and EEOA in relationship to the assessment of LEP students in their native languages. In moving the paragraph to the beginning of the document, ED should explicitly remind states and districts that other laws create independent affirmative legal obligations, which meeting the terms of this guidance do not necessarily satisfy. We would be happy to work with the Department on developing a statement about the independent legal obligations created by other laws.
Recommendation: Secondly, ED should tell people to consult the Lau memo, and should give people a number to call to get a copy. (Most states and districts will not know how to get a copy without being given the specific information). And, they should be told to consult with counsel in thinking about how Title I, Title VI, and EEOA all bear on these assessment issues.
10. Page 4, paragraph 2, (What options are available?), last sentence. Recommendation: ED should remind states that they need to ensure that the reason for including LEP students in the design, piloting, and field-testing of state assessments is, in part, to ensure that the assessments are valid for those populations of students.
11. Page 5, last paragraph. Recommendation: ED should remind states that if they need help with this process, the law specifically directs states to contact the Secretary of Education if they need help with developing linguistically appropriate assessments. (20 U.S.C. § 6311(b)(6)(A)).
12. Finally, ED should list specific documents which would help states think about assessing LEP students, and should tell states how to get these documents.
Thank you for the opportunity to comment on this draft guidance. As always, please feel free to contact us if you have questions.
Best wishes,
Paul Weckstein, Margot Rogers, Christine Stoneman