Dr. Julian Vasquez Heilig Accountability, Community-Based Accountability, English Language Learners

Has community-based accountability been impactful for English Learners?

What is community-based accountability? In 2012, I first conceptualized community-based accountability in the post Accountability: Are you ready for a new idea? Over the past several years, California has undertaken this new approach for its more than 4 million students (See all posts on community-based accountability).

Local control has been a bedrock principle of public schooling in America since inception. In 2013, the California Legislature codified a new local accountability approach for school finance. An important component of the new California Local Control Funding Formula (LCFF) approach is a focus on English learners (ELs). The law mandates that every school district produce a Local Control Accountability Plan (LCAP) to engage the local community in defining outcomes and determining funding for ELs.

This week Education Policy Analysis Archives (EPAA) just published a special issue, Education Finance and English Language Learners: Examining Challenges and Opportunities to Improve Education Policy and Practice, guest edited by Oscar Jiménez-Castellanos. EPAA/AAPE is a peer-reviewed, open-access, international, multilingual, and multidisciplinary journal designed for researchers, practitioners, policy makers, and development analysts concerned with education policies.

In this issue I published a new study seeking understand the impact of the new local accountability approach on English Learners with Lisa Romero (California State Sacramento) and Megan Hopkins (University of California San Diego). Based on an exploratory analysis of a representative sample of LCAPs, we show that, although California’s new approach offered an opportunity to support locally-defined priorities and alternatives to top-down accountability, few if any districts had yet took full advantage of the opportunity. That is, the school districts in our sample had not yet engaged with the local community to facilitate significant changes to accountability or redistribution of funding and resources to support educational equity for ELs.

You can read our entire article online here: Vasquez Heilig, J., Romero, L. & Hopkins, M. (2017). Coign of vantage and action: Considering California’ local accountability and school finance plans for English learners, Education Policy Analysis Archives, 25(15), 1-24.*

Please also check out the other articles in the EPAA issue Education Finance and English Language Learners: Examining Challenges and Opportunities to Improve Education Policy and Practice below…

English Language Learner education finance scholarship: An introduction to the special issue Oscar Jiménez-Castellanos

Equity and efficiency of Minnesota educational expenditures with a focus on English learners, 2003-2011: A retrospective look in a time of accountability Nicola A. Alexander, Sung Tae Jang

The politics of schools and money: Building awareness about channeling practices for supplemental resource allocations to serve English language learners Irina Okhremtchouk

State and institutional policies on in-state resident tuition and financial aid for undocumented students: Examining constraints and opportunities Gabriel R. Serna, Joshua M. Cohen, David H. K. Nguyen

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Dr. Julian Vasquez Heilig Charter Schools, Wisdom

New Study: Are Charters beacons of opportunity for Special Needs Students?

The extent to which special student populations (ELL, Special Education and Economically Disadvantaged) gain access to charter schools is understudied. The new study Separate and Unequal?: The Problematic Segregation of Special Populations in Charter Schools Relative to Traditional Public Schools utilizes state, district, and local level data to understand the enrollment of high-need special populations in charter schools compared with non-charter public schools.

Vasquez Heilig, J. Holme, J., LeClair, A. V., Redd, L., & Ward, D. (in press). Separate and Unequal?: The Problematic Segregation of Special Populations in Charter Schools Relative to Traditional Public Schools. Stanford Law & Policy Review, 27(2), 251-293.

In this article, we examine the extent to which charters in the state of Texas are serving high needs populations (English Language Learners, Special Education, and low-income students) at the same rates as traditional public schools. We first conduct statewide analyses to compare charter school and traditional public district demographics by locality. We also compare levels of segregation of those populations between traditional public schools by locality and charter status. We then conduct a local-level analyses to understand high-need students demographic patterns within the footprint of a large urban district to evaluate the extent to which students with greater than average instructional needs are served by charter schools in equal proportion to the neighboring public schools. We then conclude by descriptively examining the access and enrollment of high-need students in several popular “exemplar” charters.

Summary of Findings

We find that while Texas charters appear to be demographically similar to traditional public schools at the aggregate, the granularity provided by geospatial analyses demonstrate that charters under-enroll ELL students and special education students relative to nearby non-charter schools. State-level dissimilarity analyses show only modest disparities in segregation and access of high-need students within the Texas charter system compared to traditional public schools. However, local-level descriptive and geospatial analyses of charters in a large metropolitan area shows that there are large disparities in the enrollment of high-need students relative to traditional public schools nearby. (Please click on the article links above for more detailed findings)

Policy Implications

We conclude by discussing implications and recommendations for law and policy. The policy implications that logically emerge from the geographic granularity of these data could either be first-order incremental or second-order substantial. On the one hand, a set of first-order changes to educational policy related to charter schools would seek to take what is in place and make incremental adjustments to policy that aim to better regulate public charter schooling. On the other hand, a second-order change would be an approach that is a substantial departure that would purposefully curtail growth that charters have exhibited over the past two decades.

Second-Order Substantial Approach

One example of a second-order change that sought to challenge charters existentially came through litigation in the state of Washington. In 2015, the Washington Supreme Court in League of Women Voters of Wash. v. State, noting that charters resulted in “the loss of local control and local accountability,” found that charters were not “common” public schools under the Washington Constitution and thus could not be constitutionally funded as such.[1]

In 2012, voters in Washington state approved Initiative 1204 (I-1204), often known as the Charter School Act and codified as RCW 28.A.710. The Act established charters in the state of Washington and authorized up to 40 schools in the state. The Charter School Act purposefully labeled charter schools as “common school” allowing them to receive public tax dollars on a per pupil basis.[2] Further, the Act governed charters under a politically appointed board and established that charters were “exempt from all school district policies…all state statutes and rules applicable to school districts” beyond those specifically identified within the Act.[3]

The Washington Supreme Court ruled in League of Women Voters of Wash. v. State that charter schools were not common schools as defined in Article IX, section 2 of the Washington Constitution and voided the Charter School Act.[4] The decision upheld and relied upon the 1909 ruling in School District No. 20 v. Bryan that established that common schools must be under the control of voters and uniform for every child.[5] This aspect of the decision upheld the ruling of the lower court. The Washington Supreme Court, however, overturned the lower court ruling that the act was severable because the Act’s unconstitutional funding source was “so intertwined with the remainder of the Act and so fundamental to the Act’s efficacy” as to render the Act inviable as a whole.

The Court explained that I-1204 clearly indicated that charters were “to be funded on the same basis as common schools” but that such funds are restricted to use for “common schools,” which charters are not. Because the Act unconstitutionally diverted funds from common schools to charters, the court found the Charter School Act unconstitutional in its entirety. The Supreme Court decision also declared that legislatures could not just fund charters from the general fund either. The courts explained that because property taxes that in-part fund common schools were not segregated and could not be sorted from the general fund, they could not be used.

Bringing challenges to charter policy through constitutional litigation presents challenges that are highly context dependent. The variety of state constitutional provisions and language means that an approach that may have legs in one state would be nonsensical in another, particularly given the variations in how each states’ constitutional provisions have been interpreted over the years. Each states’ constitutional provisions have a rich history of being interpreted as they relate to the public schooling system in that state, and a variety of innovative litigation strategies directed at school employment, school funding, or the like have likely created a rich and idiosyncratic foundation of doctrine that would need to be evaluated on a case-by-case, state-by-state basis. This is not to say that litigation is not an important tool for achieving desirable and equitable ends, but the approach depends heavily on the specifics of each state’s constitutional doctrine surrounding schools, any applicable education clause, or other potentially appropriate clauses. Given the unique nature of courts and their limited ability to fashion a policy-oriented remedy, a strategy advancing any particular policy aim may be better suited for the political branches.

First-Order Incremental Approaches

Given the increasingly accepted role that charters play in the public education landscape, first-order incremental policy changes present a set of approaches to foment accountable charter schools that serve all student populations equitably.[6] The data in this paper suggest that claims by charter operators of comparable levels of enrollment of high needs students should be regarded with some suspicion. These findings also indicate that policymakers and the courts should find ways to hold charters accountable for serving high-needs students at the same rates as nearby schools so that charters don’t become an engine of stratification, draining the “easier to serve” students from strained nearby non-charter public schools. To address these challenges, a variety of policy recommendations are already gaining wide-spread acceptance among other scholars looking at the emerging research around charter schools.

Enrollment and retention. Just last year, the Annenberg Institute for School Reform at Brown University released a set of recommendations that were the culmination of multiple years of collaborative work and research on charters.[7] The Institute recommended that schools engage the public in robust discussions aimed at developing long-term plans for the schools that take demographic factors and changes into account and that charter authorizers require impact studies that consider these factors before approving new charter applications.[8] Beyond planning and transparency, the report specifically addresses enrollment and retention procedures employed by charter schools, recommending that policies around enrollment and retention be transparent, detailed, and publicly available.[9] In order to hold charter schools accountable on these practices, the Institute suggests public disaggregated data-reporting requirements and enrollment tracking as well as an ombudsman to whom parents can address and challenge enrollment decisions and enrollment-related grievances.[10]

Discipline disparities. Relatedly, and of particular public interest at the moment, among the recommendations offered by the report the Institute provides recommendations about discipline policies that can ensure greater equity and consistency across sectors.[11] The report notes that the U.S. Department of Education’s Office for Civil Rights (OCR) has taken increased interest in discipline disparities between the sectors.[12] In one of OCR’s “Dear Colleague” letters, the Office has reminded charter schools in particular that they are subject to the same nondiscrimination laws as traditional public schools.[13] In particular, the letter reminds charter schools of their duty to comply with Title VI of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, or national origin, Title IX of the Education Amendments of 1972, prohibiting discrimination on the basis of sex, and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, which both prohibit discrimination based on disability, and refers specifically to the schools’ obligations to comply with these laws in their discipline policies and practices.[14]

Policy proposals around student discipline have been gaining traction lately and are particularly attractive policy levers because they have a real potential for success in state legislatures across the country. More importantly these proposals have the potential to prevent the increases in segregation that may accompany charter sector growth by imposing limits and transparency requirements on student discipline, particularly in-school and out-of-school suspension, expulsion, or unnecessary referral to disciplinary alternative education program.

A growing body of research shows that vulnerable populations are disproportionately impacted by these discipline policies. For example, a recent study from the University of Pennsylvania’s Center for the Study of Race and Equity in Education shows that Southern states, Texas included, suspend and expel black students at significantly higher rates than their peers.[15] This finding is consistent with research elsewhere, which shows similar disparities for other populations, including Latino students, students who are homeless or in foster care, English language learners, and students who require special services.[16]

Research suggests that at least some charter schools employ these discipline methods at much higher rates than traditional public schools.[17] Due largely to current gaps in data and large differences between how charter schools operate, considerable debate remains as to whether charter schools are particularly bad actors with regard to disparities in student discipline. While the reality undoubtedly varies depending upon the operator and the context, where these discipline methods are overemployed by charter schools, they may contribute to segregation between the charter and traditional public sector schools by pushing vulnerable student populations out of the charter sector. Requiring consistent, transparent discipline policies in charter schools will help stem the flow of students into the school-to-prison pipeline, ensure compliance with federal law, and may have the collateral effect of reducing segregative effects of the sort seen in Houston.

To this end, the Annenberg Institute recommends that charter authorizers require operators to promulgate and implement clear policies on student discipline that comply with federal laws, publish those policies and provide students with due process protections and parental appeals before extreme disciplinary measures are imposed, and adhere to reporting requirements that break down discipline by subgroup in order to ensure transparency.[18]

Local control. To ensure that all schools in the community have the proper local control in which students can thrive, states could pass a suite of bills that emphasize local accountability. Legislation could be designed to repeal the portions of charter school acts that writ-large gave away local control and local accountability by exempting charter schools from the vast majority of the education code in any particular state. Many of these acts, some of which date from the 1990s when very little was known about charter schools in the research literature, should now be updated based on the empirical literature and close various loopholes that have allowed charters to function in education “markets” in ways that are more segregative and discriminatory towards special populations than traditional public schools. [19]

For example, laws could be enacted where they don’t currently exist that require all schools that receive public funding to be subject to public records requests and publicly elected boards with public meetings. Parents in the community from diverse backgrounds must also feel that their students have access and are safe in the school. States should provide funding for charter school monitors that ensure compliance with building safety codes (i.e. earthquake and current lead/asbestos), provide school lunch, abide by the American Disability Act (ADA) and the Individuals with Disability Act (IDEA), and be open to collective bargaining/employment agreements to ensure that classes are staffed with credentialed teachers and to limit excessive teacher turnover.

Locally-based policy solutions can also hold charters accountable to data derived from GIS analyses. While charter proponents may prefer to discuss average demographics of charter schools, policymakers should look beyond state demographics and discern whether charter schools are serving local communities equitably— if they don’t do so, then codified consequences would result. One potential way to do this is an approach where charters would transition into an in-district charter or all-school magnet or community school if the school neglected special populations or selectively enroll less expensive subsets. This process could be triggered by parents in the schools, just as charter advocates have sought to use trigger laws to turn public schools into charters. The state or county would be required to hold a series of town halls, collaborative proposal development meetings, and community votes to ascertain the needs of the existing school community and to project what the future needs and unique resources required or offered by the school and district.[20] Such a transition could also be initiated by a publicly-elected charter authorizer board exercising its authority in a meaningful way that promotes equity between and amongst charters and traditional public schools. Former charter schools would receive access to district facilities only if they agree to return to the district and abide by all employment, curricular requirements, and other regulations to ensure equity and access to a high quality education for all students in the community.

We conclude,

Charters have a choice whether they want to be racially and economically diverse schools that serve ELL, Special Education and low-SES kids. Based on the various admissions and management policies documented in the research literature,[1] charters can currently choose their students, rather than families choosing their schools— in essence, school choice has evolved into charter schools choose. To address this issue, policymakers and communities must have extensive background knowledge and data to understand the charter conundrum. These groups must also exhibit the political will power to hold charters accountable despite entrenched support from the charter lobby, foundations, wealthy philanthropist and other proponents. As a result, it is still an open question whether charters will be beacons of opportunity or harbingers of another century of racial and economic segregation.

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[1] League of Women Voters of Wash. v. State, 184 Wn.2d 393 (Wash. 2015).

[2] Wash. laws of 2013, ch.2, § 201 (5)-(6).

[3] Wash. Laws of 2013; ch. 2, § 204 (3).

[4] Wash. Const., art. IX, § 2.

[5] School District No. 20 v. Bryan, 51 Wash. 498, 99 (Wash. 1909).

[6] Personal communication with Cynthia Liu from the K12 News Network by e-mail on March 30, 2016 aided in the development of these recommendations.

[7] Annenberg Institute for School Reform at Brown University, Public Accountability for Charter Schools: Standards and Policy Recommendations for Effective Oversight (2015) available at http://annenberginstitute.org/?q=publication/charter-accountability-report.

[8] Id at 4.

[9] Id at 8.

[10] Id.

[11] Annenberg Institute for School Reform at Brown University, Public Accountability for Charter Schools: Standards and Policy Recommendations for Effective Oversight (2015) available at http://annenberginstitute.org/?q=publication/charter-accountability-report.

[12] Id.

[13] Catherine E. Lhamon, U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter: Charter Schools (May 14, 2014) at 1-2.

[14] Id at 2, 6.

[15] Edward J. Smith & Shaun A. Harper, University of Pennsylvania, Ctr. for the Study of Race and Equity in Educ., Disproportionate Impact of K-12 School Suspension and Expulsion on Black Students in Southern States (2015), available at http://www.gse.upenn.edu/equity/SouthernStates.

[16] See e.g. Kimberle Williams Crenshaw, Priscilla Ocen, & Jyoti Nanda, African Am. Pol’y Forum & the Ctr. for Intersectionality and Soc. Pol’y Studies at Columbia Law School, Black Girls Matter: Pushed Out, Over Policed and Underprotected (2015) available at http://www.atlanticphilanthropies.org/sites/default/files/uploads/BlackGirlsMatter_Report.pdf (black female students); U.S. Dept. of Educ. Office for Civil Rights, Civil Rights Data Collection: Data Snapshot (Early Childhood) (2014), available at https://www2.ed.gov/about/offices/list/ocr/docs/crdc-early-learning-snapshot.pdf (black students and Native Hawaiian or Pacific Islander females in preschool); Deborah F. Fowler, et al., Texas Appleseed, Texas’ School to Prison Pipeline: Dropout to Incarceration (2007), available at  http://www.njjn.org/uploads/digital-library/Texas-School-Prison-Pipeline_Dropout-to-Incarceration_Texas-Appleseed_Oct2007.pdf (black, Latino, and special education students in Texas); Office of the State Superintendent of Educ., Reducing Out-of-School Suspensions and Expulsions in District of Columbia Public and Public Charter Schools (2014), available at http://osse.dc.gov/sites/default/files/dc/sites/osse/publication/attachments/OSSE_REPORT_DISCIPLINARY_G_PAGES.pdf (black students, Latino students, homeless and foster youths, and students with disabilities in the District of Columbia).

[17] DC Lawyers for Youth, Every Student Every Day Coalition, District Discipline: The Overuse of Suspension and Expulsion in the District of Columbia (2014), available at http://www.dcly.org/district_discipline (noting high rates of discipline by charter schools in the District of Columbia); Jaclyn Zubrzycki, Sean Cavanagh, & Michele McNeil, Charter Discipline: The Impact on Students – Charter Schools’ Discipline Policies Face Scrutiny, Educ. Week (Feb. 20, 2015) available at http://www.edweek.org/ew/articles/2013/02/20/21charters_ep.h32.html; infographic at http://www.edweek.org/ew/section/infographics/charter-discipline-infographic.html.

[18] Id at 9.

[19] Julian Vasquez Heilig, Charters and Access: Here is Evidence Cloaking Inequity Blog (Nov. 20, 2015 n conclusion,esissue, ld be toe approach could be tondations tialpower tions.that their students are safe in the school, so ch https://cloakinginequity.com/2015/11/20/drinking-charter-kool-aid-here-is-evidence/

[20] Julian Vasquez Heilig, The Gem on the Hill: How to Create a Community-Based In-District Charter (Aug. 20, 2014) https://cloakinginequity.com/2014/08/20/the-gem-on-the-hill-austin-creates-a-community-based-in-district-charter/

 

rosacastrofeinberg English Language Learners

Federal regulations threaten Civil Rights of Latinos

Do the U. S. Department of Education (USDOE) recently proposed regulations threaten the civil rights of English Learner (EL) students? The new regulation (34 C.F.R. §299.19 (c) (3)) would eliminate the use of state content assessment results and other evidence of actual classroom performance in English Learner (EL) program exit decisions, violate the rights of thousands of Hispanic, Chinese, Haitian, and other language minority parents to have meaningful input into the education of their children, silence the voice of teachers into program exit decisions, and disrupt the rules and procedures in place in most of the nation’s schools and districts and in all of Florida’s. These changes would result in harm to ELs since premature termination of language and academic support would increase their risk of school failure and negatively impact their life chances.

Entry and exit criteria determine who becomes eligible for the benefits of program participation, how students become eligible, and for how long they remain eligible.  If students are reclassified on the basis of one sole score on an English Proficiency (ELP) test and are thrust into mainstream classes before they are ready, the challenges they face in meeting achievement standards are magnified. To meet our legal and moral obligations as educators, we must provide English Language Learners opportunities to learn the English language, to learn the subject matter required for grade to grade promotion and graduation, and to acquire the academic language needed for success in school, higher education, and life.  To accomplish these goals, parents and educators must consider factors in addition to the results of an (ELP) assessment (a test of language skills that does not assess content knowledge and is administered only to ELs) when making high-stakes placement decisions.

Psychometric Standards

The proposed regulation ignores the need for multiple measures upon which to base decisions that will have major impact on a student, the practice recommended in Standard 12.10 of the Standards for Educational and Psychological Testing (American Education Research Association, 2014). For years the federal courts have given weight to these standards in deciding how the use of tests should be judged in the context of protecting civil rights. A prior version of the standards (American Psychological Association, 1966) was used by the Supreme Court in discrimination cases back to at least 1975 (Albemarle Paper Co. v. Moody).

Civil Rights Compliance

The proposed regulation goes against the letter and spirit of the Every Student Succeeds Act of 2015 (ESSA) Titles I and III and other federal statutes and court decisions by ignoring one of their major goals for Els: grade level achievement in the content areas.

The proposed regulation is not consistent with the emphasis on academic as well as linguistic development presented in the statements of purpose in key sections of ESSA (2015), excerpts copied below, or with court decisions such as Castañeda v. Pickard or with the Equal Education Opportunity Act of 1974.

ESSA Title I

SEC. 1001. STATEMENT OF PURPOSE. The purpose of this title is to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.

ESSA Title III

SEC. 3102. PURPOSES. ‘‘The purposes of this part are— (1) to help ensure that English learners, including immigrant children and youth, attain English proficiency and develop high levels of academic achievement in English; 2) to assist all English learners, including immigrant children and youth, to achieve at high levels in academic subjects so that all English learners can meet the same challenging State academic standards that all children are expected to meet (ESSA, 2015).

There are two sets of requirements, linguistic and academic. To meet civil rights requirements for ELs we need measures for both. ELPs measure language, not academic achievement. State assessments measure content knowledge. To measure progress towards both goals we need information from both types of assessments along with other data and parent and teacher input to inform EL placement decisions.

The WIDA consortium includes thirty-eight states and territories that share common English language proficiency standards and a common ELP assessment, ACCESS for ELs (ACCESS). In total, WIDA member states assess over 1.5 million English learners annually. Comments on the proposed regulation submitted by Dr. Timothy J. Boals, Executive Director, WIDA and WIDA Board National Policy Subcommittee Co-chair, illustrate the impediment to civil rights compliance approval of the proposed regulation would impose.

It is our opinion that effective language instruction and assessment programs stress the need for educators to make informed decisions and consider factors in addition to the results of the ELP assessment when making high-stakes placement decisions. Especially, when such decisions have significant implications for an ELs’ future academic success. In order to ensure compliance with the Office for Civil Rights’ (OCR) three-part test based on Castañeda v. Pickard, 648F. 2d 989 (5th Cir. 1981), whereby school districts must ensure that the bilingual programs or practices it uses are: (1) based on sound educational theory, (2) implemented effectively with resources, and (3) the program must be proven effective in overcoming language barriers (Boals, July 29, 2016, p.5).

The Council of Great City Schools (CGCS) points out an additional obstacle to compliance with civil rights mandates. Approval of the proposed regulation to eliminate additional reclassification exit criteria could lead to an overemphasis on ELP scores. The focus on this proficiency metric would narrow the curriculum available to ELs by discouraging attention to instruction in the content areas required by state and federal law and lead to elimination of dual language programs (Casserly,  2016).

The CGCS highlights the need to evaluate ELs’ ability to apply their English language skills to meet academic requirements prior to their reclassification. “ In fact, the proposed regulations also preclude using any academic content assessments in the process of determining whether an EL should be exited from English Learner status – discounting any practical demonstration of a student’s ability to handle core curricular content in English (Casserly, 2016, p. 4).

The use of results from content tests meets this “proof of the pudding” standard and is a safeguard against the placement and classification errors that would result from use of one sole measure, the ELP, in making program exit determinations. The most direct way to be sure ELs can meet the state’s requirements on state assessments is to include their scores on those content examinations, along with their ELP scores and parent and teacher input, among the multiple measures that contribute to exit decisions. Including both achievement test and ELP results responds to mandates for language instruction and for instruction leading to success in school and life. Both areas must be considered.  At the same time, we must be mindful as well of the effects of misplacements on ELs’ school ratings and teacher evaluations.

Access to the Curriculum

Florida’s experience leads to the conclusion that the use of content assessments and parent and teacher collaboration as part of the exit process does not deny ELs access to the curriculum. Florida ensured the participation of ELs in core classes twenty-five years ago when the principle that all teachers of ELs in all subjects must be prepared to provide them understandable instruction was incorporated in state board of education rules. In Florida, ESOL curriculum addresses the same goals as the English Language Arts curriculum and ESOL students receive instruction in the core subjects.

Florida ELs are not denied at opportunity to successfully achieve. On the contrary, their ability to meet challenging state academic standards is demonstrated by the 8.1 point increase in EL graduation rates over the five year period from 2010-11 to 2014-15. (Solochek, Oct. 17, 2016).  Passing the Florida Standards Assessment (FSA) (which assesses standards designed to prepare students for success in college and career) is a graduation requirement.

Nevertheless, there is no doubt that the temporary condition of being an English Learner is a barrier to academic progress in classrooms where the language of instruction is English.  In Florida, the EL graduation rate is some 25 to 30 points lower than that for the state’s highest scoring demographic subgroup. However, changing the methods for reclassification to accelerate elimination of the classification as EL does not in and of itself change the condition or guarantee Former ELs’ success in or even entry into higher level courses.  What it does do is inflict upon ELs the consequences of precipitate removal of support services for those who still need them.

Should problems of access to the curriculum arise, enforcement of existing civil rights laws is a remedy that avoids the harm to ELs that the proposed regulation would inflict.

Parent and Teacher Input

While ESSA (2015) includes in multiple sections of the law requirements for parent involvement, engagement, outreach, and notification, the proposed regulation would eliminate involvement and communications from parents on high stakes program exit decisions. This could jeopardize the future of the more than a quarter million EL students in Florida. But the issue is not unique to any one state. For example, in Texas, with 773,732 EL students, reclassification decisions are made by parents and teachers coming together in teams to review all aspects of an EL student’s progress. So too in California, reclassification of students relies on parental input together with that of teachers as they review the data for their 1,521,772 EL students (see Florida Department of State, n.d.; Linquanti, Cook, Bailey, and MacDonald, 2016; State Procedures, 2011; Texas Education Agency, 2016-17).  The rights of EL’s parents to have meaningful input into their children’s education would be swept aside by the new U.S. Department rule. The parents of more than 2.5 million ELs in FL, TX, and CA alone (Migration Policy Institute, 2015) stand to lose their rights to take part in critical decision about their children’s education under this draft regulation.

Local and State Control

The flexibility introduced in ESSA to bolster local and state control of education is diminished by executive overreach in §299.19 (c) (3).

There is disparity between proposed regulation §299.19 (c)(3) and what Congress meant to require and prohibit, and between that proposed regulation and what is widely followed local practice and what is widely followed local practice in jurisdictions operating under federal civil rights orders and plans.

While the importance cannot be overstated of avoiding the legal complexities that would ensue were a federal regulation to conflict with federal court orders, §299.19 would also create havoc in other areas of the country. For example, in Arkansas, “no ELL exits a program without passing the state exams, achieving a strong fluency score on well-established ESOL proficiency assessments, making good grades in content classes (notably Science and Social Studies), or having the support of their teachers” (E. Dwyer, personal communication, Oct. 21, 2016; Kerr, August 4, 2015).

Section 3113 (b) (2) of ESSA (2015) states only that   ’’…the [state] agency will establish and implement…standardized, statewide entrance and exit procedures…”.  Congress said nothing about banning content tests, nothing about limiting parent or teacher input. What it did say is that it wants standardized procedures throughout a state and annual assessment of English language proficiency.

Moreover, the proposed regulatory language that goes beyond statutory requirements is not needed to ensure that the intent of Congress is met. In Florida, for example, we have a standardized procedure required in every district and every school. The standardized procedure considers both content and ELP assessment results and five additional sets of data, as well as parent and teacher input. State law authorizes the state board of education to specify in rule the elements in the state’s standardized procedures (English Language Instruction, n.d. ; Florida Department of State, n.d.).

While Congress was silent on matters included in the proposed regulation, it was clear and specific on actions by the U.S. Secretary of Education that are prohibited.  Forbidden actions include promulgation of any rule or regulation that would be in excess of statutory authority granted to the U.S. Secretary of Education, adding or deleting one or more specific elements of the state measurements, and establishing specific academic assessments or assessment items that states or local agencies must use to meet the requirements of ESSA or otherwise use to measure student achievement or student growth.

The discussion so far has described how §299.19 (c) (3) clashes with state law in states such as Florida with standardized procedures codified in state rule and flouts statutory limitations on its rule making authority. However, there is an even more remarkable deviation between the proposed regulation and statute to be considered: §6846, ESSA (Legal Authority Under State Law, Dec. 10, 2015).

Legal Authority Under State Law

Nothing in this part shall be construed to negate or supersede State law, or the legal authority under State law of any State agency, State entity, or State public official, over programs that are under the jurisdiction of the State agency, entity, or official.

Congress never intended for ESSA to force districts or states to violate their state laws on the education of ELs. Nevertheless, that is exactly what §299.19 (c) (3) would do.

The proposed regulation would apply to all Els in all grades in all districts in all states. The draft rule is far reaching but without roots in the statute, as the proposed regulation goes well beyond the stated will of the Congress.  Yet there has been inadequate consideration by policy makers and the public of its implications for:

  1. a) local and state control, disruption of current practice, and executive overreach,
  2. b) parent and teacher input,
  3. c) compliance with state and federal civil rights requirements,
  4. d) the social and economic consequences for ELs who would face increased risk of failure if prematurely ejected from language and academic support programs, and
  5. f) the increased costs to cash strapped school districts needlessly obliged to deliver remedial services to an artificially created group of academically delayed students.

Current Practice

Linquanti, et al. (2016) report that “29 states and the District of Columbia rely solely on the state ELP assessment for reclassifying ELs (p. 89)”. The remaining 42% of the states use various combinations of additional criteria, such as content test results, teacher and parent input, and course grades.

When consideration shifts to the number of schools and districts affected, the disruptive effect of the regulation becomes even more apparent. According to the Council of Great City Schools 2016 ELL Identification and Exit Survey (Casserly, 2016, p. 2):

  • In more than half of the responding urban districts, the Bilingual/ESL Teacher (70 percent of responding districts), the Classroom Teacher (63 percent), and parents (53 percent) participate in the collaborative process to determine whether or not to exit an EL from EL status.
  • Over one-third of the districts listed a number of additional individuals who are involved in the exiting process: Bilingual/ESOL staff (48 percent), principal (45 percent), and Language Proficiency Assessment Committees (40 percent).

Moreover, a reliance on a single-measure–the ELPA score—disavows the second obligation under Lau, which is to ensure that ELs have equal access to content instruction, and goes against practices in a majority of districts designed to ensure ELs are academically successful in the content areas. The Council’s 2016 ELL Survey also found that:

  • 59 percent of district do not use the ELPA as the single determinant for exiting ELs, and
  • 73 percent of districts also consider performance on state content assessments in making the determination whether to exit a student from the EL subgroup.

Up-ending the decisions to use content assessments and other additional criteria as part of exit procedure decisions would radically undermine what states and districts are now doing, the role of teachers, and the role of parents.

Risk of Failure for Els when Exit Decisions on Based Solely on their ELP scores

A study published this month by WestEd Regional Education Laboratory researchers illustrates the danger of program exit based solely on results from ELP tests. The study followed two cohorts of ELs in Arizona and Nevada (one cohort of 3rd grade students and one of 6th grade students) over three years. The recently reclassified middle school students had difficulty passing state math and language arts exams. “This study provides evidence that many English-learner students may not yet be ready for full academic success within two years of reclassification and placement in mainstream English-only classes”, Haas, Tran and Huang conclude (2016, p.14).

The study found that grade 3 ELs in both states could score below the proficient level on an ELP and still have a 50/50 chance or better of passing the English language arts content test at least once in the two years following the English language proficiency assessment.  However, to have a 50/50 chance of better of passing the English language arts content test, Arizona grade 6 English learner students needed a scale score of at least 15 points above the proficiency threshold. Nevada grade 6 English learner students needed a scale score of at least 41 points above the proficiency threshold (Haas, et al., 2016).

The authors draw the following implications from their study pertinent to this discussion of the proposed regulation to limit exit criteria to one sole score on an ELP test.

So even though those grade 6 English learner students had scored high enough to test out of the English language development support program, their performance on subsequent content tests indicates that most continued to struggle with the higher demands of English language arts and math for the next two years (Hass, et al., 2016, p.12).

As grade level increases, a growing gap seems to develop between the English proficiency level needed to score well on the English language proficiency assessments and the academic literacy needed to pass the English language arts and math content tests at least once in the two years following the English language proficiency assessment (Hass, et al., 2016, p.13).

… decisions about placement in English-only classrooms or about providing additional support for students in English-only classrooms might depend on more than just English language proficiency assessment scores, and might include the characteristics of students in additional English learner subgroups that will enable more focused diagnostics (Hass, et al., 2016, p.14).

The stated USDOE rationale for the proposed rule (Fed. Reg. May 31, 2016) rests on a series of things that “may” happen to hypothetical students whereas we know from Tables A-3 and A-4 (Haas, 2016) of the recent WestEd study what “did” happen to students who were prematurely exited from their EL programs. Many failed.

Suggested Actions for Advocates

Share your opinions about 34 C.F.R. §299.19 (c) (3) with the members of your congressional delegation as soon as possible. You may want to use or adapt the following suggested message and request.

Sample Letter

Dear Senator:

Florida’s quarter million English Learners (Els) and the nation’s five million ELs need your help.

The U. S. Department of Education has proposed regulation 34 C.F.R. §299.19 (c) (3). This regulation would eliminate the use of state content assessment data in EL program exit decisions, violate the rights of thousands of Hispanic, Chinese, Haitian, and other language minority parents to have meaningful input into the education of their children, silence the voice of teachers into program exit decisions, and disrupt the rules and procedures in place in over 70% of the nation’s schools and districts and in all of Florida’s school districts.

These changes would in turn result in harm to ELs since premature termination of language support would increase their risk of failure.

The proposed regulation goes beyond the stated will of the Congress and is a glaring example of executive overreach.

Requested Action

Please use every means at your disposal to persuade the U.S. Department of Education and the Office of Management and Budget to postpone action on Proposed Regulation 34 C.F.R. § 299.19(c)(3) until such time as a new administration can review its implications for:

  1. a) local and state control, disruption of current practice, and executive overreach,
  2. b) parent and teacher input,
  3. c) compliance with state and federal civil rights requirements,
  4. d) the social and economic consequences for ELs who would face increased risk of failure if prematurely ejected from language and academic support programs, and
  5. f) the increased costs to cash strapped school districts needlessly obliged to deliver remedial services to an artificially created group of academically delayed students.

 

Thank you for your ongoing interest in the welfare of English Learners.

 

Sincerely,

Links to the Senators’ Web Sites

Copy and paste your message in the email form in the Contact section of the senators’ web sites.

All Senators: http://www.senate.gov/senators/contact/

Members of Senate Health, Education, Labor, and Pensions Committee: https://www.help.senate.gov/about/members

Members of House Education and Workforce Committee: http://edworkforce.house.gov/committee/subcommitteesjurisdictions.htm

 

In conclusion, It’s possible to have both standardized statewide procedures and commonsense exit criteria. The statutory requirement in ESSA for standardized statewide entrance and exit procedures can be met without creating the threat to student success, local control, and parent and teacher input that approval of §299.19(c )(3) would entail. We don’t need rules whose effect will be to hustle students, ready or not, out of existing programs.

Rosa Castro Feinberg, Ph. D. rcf2012@att.net

Associate Professor (Retired), College of Education, Florida International University; National Origin Desegregation Assistance (Lau) Center Director and Research Professor, University of Miami; Teacher, Gadsden, Leon, and Dade Counties: ESOL, Spanish, Debate, Language Arts. Chair, Government and Media Relations Committee, LULAC Florida

Dr. Rosa Castro Feinberg has been a teacher (English, Spanish FL, Spanish-S, ESOL, and Debate); the Director of Title VII funded teacher training programs and Director of the University of Miami National Origin Desegregation Assistance Center (the LAU Center) providing training and technical assistance on educational equity for language minority students to school districts and state education agencies in a 14 state area; a consultant for Ministries’ of Education in Guatemala, Honduras, the Dominican Republic, and Spain; a school board member (the first Hispana to be elected county-wide in Dade County); and a faculty member in the Department of Foundations: Urban, Multicultural, and International Education, College of Education, at Florida International University.

References

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). Retrieved from https://scholar.google.com/scholar_case?case=8752726713628473911&q=Albemarle+Paper+Co.+v.+Moody&hl=en&as_sdt=40006&as_vis=1

American Educational Research Association, American Psychological Association, & National Council on Measurement in Education (AERA/APA/NCME). (2014). The standards for educational and psychological testing. Washington DC: Author.

American Psychological Association (1966). Standards for educational and psychological tests and manuals. Washington DC: Author.

Boals, T. J. (July 29, 2016). Comments on NPRM, Docket ID: ED-2016-OESE-0032. Retrieved from https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&s=299.19(c)(3)&D=ED-2016-OESE-0032

Casserly, M.  (July 28, 2016). Comments on NPRM for ESEA, as amended by ESSA – Accountability and State Plans. Council of the Great City Schools. Comments on ELL Issues Docket ID ED-2016-OESE-0032; RIN 1810-AB27, 2,3.

English language instruction for limited English proficient students (n.d.). 1003.56. The 2016 Florida Statutes. Retrieved from http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=esol&URL=1000-1099/1003/Sections/1003.56.html

ESSA. Every Student Succeeds Act of 2015, Pub. L. No. 114-95 § 114 Stat. 1177 (2015-2016). Retrieved from https://www.gpo.gov/fdsys/pkg/BILLS-114s1177enr/pdf/BILLS-114s1177enr.pdf

Federal Register. 81 §299.19, 34586 (proposed May 31, 2016). Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2016-05-31/pdf/2016-12451.pdf

Florida Department of State (n.d.).  Florida Administrative Code and Florida Administrative Register. Author. Retrieved from https://www.flrules.org/

Haas, E., Tran, L., & Huang, M. (2016). English learner students’ readiness for academic success: The predictive potential of English language proficiency assessment scores in Arizona and Nevada (REL 2017–172). Washington, DC: U.S. Department of Education, Institute of Education Sciences, National Center for Education Evaluation and Regional Assistance, Regional Educational Laboratory West. Retrieved from http://ies.ed.gov/pubsearch/pubsinfo.asp?pubid=REL2017172

Kerr, T. (August 4, 2015 ). ELL Updates 2015-16. Arkansas Association of Educational Administrators (AAEA) Conference, Little Rock, Arkansas. August 3, 2015 to August 5, 2015. Retrieved from http://www.arkansased.gov/public/userfiles/Learning_Services/English%20Language%20Learners/EL_Updates_Summer_AAEA_Conference_2015-16.pdf

Legal authority under State law. §6846.  Every Student Succeeds Act of 2015, Pub. L. No. 114-95 § 114 Stat. 1177 20 USC (Dec.10, 2015).

Linquanti, R., Cook, H. G., Bailey, A. L., & MacDonald, R. (2016). Moving toward a more common definition of English Learner: Collected guidance for states and multi-state assessment consortia. Washington DC: Council of Chief State School Officers.

Migration Policy Institute, National Center on Immigrant Integration Policy, Ell Information Center. 2015 States and districts with the highest number and share of English language learners. Fact sheet series, No. 5. Retrieved from  http://www.migrationpolicy.org/research/states-and-districts-highest-number-and-share-english-language-learners

Solochek, J.S. (Oct. 17, 2016). Florida makes gains in high school graduation rate. Tampa Bay Times Gradebook. Retrieved from http://www.tampabay.com/blogs/gradebook/florida-makes-gains-in-high-school-graduation-rate/2298448

State procedures for identifying and classifying English language learners. In National Research Council. (2011). Allocating Federal Funds for State Programs for English Language Learners. Panel to Review Alternative Data Sources for the Limited-English Proficiency Allocation Formula under Title III, Part A, Elementary and Secondary Education Act. Committee on National Statistics and Board on Testing and Assessment. Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press. Retrieved from https://www.nap.edu/read/13090/chapter/6

Texas Education Agency, Curriculum Division (2016-2017), Language Proficiency Assessment Committee (LPAC) Framework Manual. Author. Retrieved from http://programs.esc20.net/users/files/LPAC/2016-2017/Framework/05LPAC_Manual_Resources_2016-2017.pdf

34 C.F.R. § 299.19(c)(3); ED Proposed Rules, 81 Fed. Reg. 34621 (proposed May 31, 2016). Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2016-05-31/pdf/2016-12451.pdf

 

Dr. Julian Vasquez Heilig English Language Learners, School Finance

School Choice: Students vs. Education Reformers

“Julian you are precocious” were the words that I heard that morning from Mrs. Wutke, one of my instructors in high school. Screen Shot 2015-10-06 at 8.32.35 AMThat comment sent me scurrying for the dictionary. Nowadays, you turn to dictionary.com— which tells me that I was “flowering or fruiting earlier than usual.” Sadly, Mrs. Wutke was killed in a tragic car accident a few years after I graduated from high school. I have never forgotten her words. Regardless how precocious I was in high school, I was never anywhere near filing an amicus brief in a Supreme Court case. I bring this up because in the Houston Independent School District (HISD), my former employer, there are some precocious students making waves.
About 10 HISD Student Congress members spent the summer researching and writing an amicus brief in support of more funding for Texas schools. This from Laura Isensee at Houston Public Media KUHF.

What’s at stake is the future of school funding for 5 million Texas students. And these teenagers from the HISD Student Congress sided with the majority of school districts. They argue the current funding system is outdated and shortchanges students, especially ones with high needs.

More from Houston Public Media KUHF.

On a recent afternoon, senior Amy Fan read a new legal brief at the library at Bellaire High School.

“By the time we graduate, we will have spent approximately 16,000 hours inside the classroom,” Fan read. “We have witnessed the highs and lows, the ins and outs of a Texas education.”

This isn’t from the army of attorneys involved in the latest school finance battle. It’s from Fan and other students.

They wrote it themselves and submitted it to the Texas Supreme Court as an amicus brief in the ongoing case. An amicus brief is filed by a group or individual with an interest in the outcome.

“We urge the court to consider our voices. The stakes are simply too high,” Fan read.

Listen to the KUHF story by clicking on the link in the Tweet below.

Our education “consumers” are very well aware that they are getting bargain shelf education (Yes, that’s a pot shot at market-based education thinkers). Here is more from the students in the KUHF story,

“We felt like all the other briefs filed in the case were written by administrators, superintendents, kind of lawyers – people who’ve never sat in a classroom for any extended period of time before they wrote these briefs,” said Fan, who is the current speaker for the grassroots student group.

Zaakir Tameez, who graduated from Carnegie Vanguard High in 2015, said they wanted the justices to remember that students are more than numbers.  “We’ve been through the door,” he said.

Juliana Dunn, who also graduated from Carnegie Vanguard, visited Lee High School in Southwest Houston. “It’s a place where a lot of immigrants come to Houston and a lot of English language learners end up here at Lee,” she said.

The school’s principal Jonathan Trinh shared in the KUHF story

“I have a kid that cannot read or write in his own language that I have to get ready to graduate high school in America four years from now,” Trinh said. “And then somehow make that one dollar fit that one child.”

Texas hasn’t updated the funding for English language learners in decades.

“It’s not fair. It’s not – no matter how you sit back and say, ‘Well, you know, you get the same money; the other kid doesn’t get any more.’ It’s not the same problem,” Trinh said.

He has to schedule two or three language arts classes in a row so that students get enough intensive English training. Many are immigrants from Central America, Syria and other places.

Trinh relates to their situation because he was a refugee. He came to the United States from Vietnam when he was 12 years old. If he had more funding for his students, he’d make classes smaller.

“If I can get the class size down to about 20, 21, ideally that’s perfect to learn,” he explained.

Considering the context of Houston schools, HISD student congress team members tried to answer two questions in the Supreme Court amicus brief.

  • What is it like to educate English language learner students?
  • What would Lee do with more funding?

What did the lawyers think about all this? again from the KUHF article,

“Courts come up with the exact same things that these kids are saying,” said Wendy Lecker, senior attorney at the Education Law Center. It’s worked on school finance cases in New York, New Jersey and Nevada…

Lecker said that in all her experience she’s “never, never” seen an amicus brief written and submitted by students before.

“I think it was very powerful not only because they’re high school students that did this great job, but they are really giving us a window into what really goes on in schools,” she said.

Other attorneys in Texas complimented the students’ work.

“Some of the other briefs filed on behalf of these policy-wonks and in support of the intervenors – I would definitely say that this brief even exceeds those briefs that have been authored by some lawyers,” said David Hinojosa, who is national policy director at the Intercultural Development Research Association and former senior attorney for the Mexican American Legal Defense and Educational Fund, or MALDEF.

David Thompson, who is representing the Houston Independent School District and other school districts, said that he hopes the justices give the students’ 35-page brief a good read.

What’s brilliant about the HISD student congress brief is that it focuses on what students would CHOOSE and how THEY would allot additional funding from the state.

  1. Decrease class size
  2. Improve teacher quality
  3. Expand enrichment programs
  4. Provide more college and preparatory resources

THIS IS WHAT SCHOOL CHOICE LOOKS LIKE. THIS IS WHAT STUDENTS WANT TO CHOOSE IN THEIR SCHOOLS. Charters, vouchers, parent trigger and all of the other top down, private control policies are not what students desire. They are not looking for cheap education reform that “moves around the chairs on the deck of the Titanic“— they are asking society to invest in reforms that have decades of research supporting them— but have a price tag.

What will the Texas Supreme Court decide? What will the courts and legislatures in your locality decide? Will they give the children their choices instead of the ideological priorities of the top-down, private control reformers?

See the student’s press release here. See the full text of the brief here. See Wendy Lecker’s, senior attorney for the Education Law Center in NY,  Stamford Advocate column about the Houston students here.

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p.s. Thanks to Karen from Houston for the heads up on this story.

Roxana Marachi, PhD Accountability, Curriculum, English Language Learners, High-Stakes Testing, Latina/os

Common Core & Chaos in Computerized Testing: Are New Assessments Valid, Reliable, Secure, Accessible, and Fair?

Guest post by Roxana Marachi, Ph.D.

For latest update (as of September 8th, 2015) please see:
Open Letter to CA State Board of Education on Release of [False] SBAC Scores

[Original post from July 6th, 2015]
A recent report from the Public Policy Institute reveals that the majority of California’s public school parents are uninformed about the new tests their children took this past year. And despite numerous concerns regarding the lack of validity, technological barriers, biases, and test administration problems, “test scores” soon will be released to the public.

The following includes adapted selections of a letter I sent to the California State Board of Education for the July 2015 State Board of Education meeting.  My purpose in sharing this information is to draw attention to the lack of scientific validity of the test scores that are soon to be released to the public and to promote critical thinking about issues of fairness, accessibility, data security, and standardization in the test administrations.

It is important to consider that unless assessments are independently verified to adhere to basic standards of test development regarding validity, reliability, security, accessibility, and fairness in administration, resulting scores will be meaningless and should not be used to make claims about student learning, progress, aptitude, nor readiness for college or career (see Legal Implications of High Stakes Assessments: What States Should Know).

QUESTIONS: 

Q1: How is standardization to be assumed when students are taking tests on different technological tools with vastly varying screen interfaces? Depending on the technology used (desktops, laptops, chromebooks, and/or ipads), students would need different skills in typing, touch screen navigation, and familiarity with the tool.

Q2: How are standardization and fairness to be assumed when students are responding to different sets of questions based on how they answer (or guess) on the adaptive sections of the assessments?

Q3: How is fairness to be assumed when large proportions of students do not have access at home to the technology tools that they are being tested on in schools? Furthermore, how can fairness be assumed when some school districts do not have the same technology resources as others for test administration? 

Q4: How/why would assessments that had already been flagged with so many serious design flaws and user interface problems continue to be administered to millions of children without changes and improvements to the interface? (See report below)

Q5: How can test security be assumed when tests are being administered across a span of over three months and when login features allow for some students to view a problem, log off, go home (potentially research and develop an answer) and then come back and log in and take the same section? (This process was reported from a test proctor who observed the login, viewing and re-login process).

Q6: Given serious issues in accessibility and the fact that the assessments have yet to be independently validated, how/why would the SmarterBalanced Assessment Consortium solicit agreements from nearly 200 colleges and universities to use 2015 11th Grade SBAC data to determine student access to the regular curriculum or to “remedial” courses? http://blogs.edweek.org/edweek/curriculum/2015/04/sbac.html.

Projected failure rates disproportionately impact youth of color, students with special needs, and English Language Learners, cut scores have yet to be validated, and the use of the test scores may be argued to contribute to systemic barriers that already limit access to higher education for students from historically underserved populations.

[Chart data from SBAC / Screenshot from post on J.Pelto’s Wait, What blog] 

Screenshot 2015-07-12 16.11.25
Q7: [Background] I participated in the cut-score setting process during October of 2014 as I had learned through a public announcement on social media about the opportunity to take part. According to their own documents, SBAC confirms that 7% of their feedback about the cut score setting was from the “general public.” “Smarter Balanced is inviting anyone who’s interested—you don’t have to be a teacher or even work in education—to register to participate in the “standard-setting” process.”

It was apparent by the lack of screening that as long an individual had a pulse and an email address, any member of the public who so wanted was given open access to at least 30 test items and answers considered for use in the assessments. Despite signing an electronic statement promising not to share any information from the activity, anyone (including test-prep profiteers) could have downloaded within a matter of minutes dozens of test items developed for use by the consortium. It is appalling that such an epic breach of security would be allowed in the process of test development.

Screenshot 2015-07-03 20.25.38

Q7: Given the open access of hundreds of test-items to large numbers of unscreened participants who took part in the public cut-score setting procedures, how can the State Board of Education ensure the security of test items used by the SmarterBalanced Consortium?

[Additional note (not included in original letter)] 
One might also consider issues of students sharing test-related topics and posts on social media as potential security breaches of content. With a three month testing span and countless new apps for anonymous sharing, the possibilities are endless.   Still, testing companies seem laser-focused on following students’ visible social media feeds with controversial surveillance strategies that have led to serious privacy concerns (here, here, and here) in states with the PARCC versions of CCSS tests administered by Pearson.  While public awareness and concern has focused primarily on Pearson’s activities, the SmarterBalanced Assessment Consortium has also been critiqued for its policies on student monitoring.  As we consider issues of test security, we should acknowledge the thousands of potential, alternate, creative hashtags or other communication tools that youth may use aside from the obvious #PARCC #SBAC and #SmarterBalanced tags to discuss their experiences with the assessments.  Let’s take a look at how [in]effective it was for the College Board to require sworn statements from test-takers to refrain from posting about the PSAT on social media:

Screenshot 2015-07-06 00.11.09Screenshot 2015-07-03 23.15.00

Q8: Will the California State Board of Education hold the SmarterBalanced Assessment Consortium member states and test developers accountable to adhere to the basic terms, timelines, conditions, and agreements described in the Race to the Top Assessment Development Proposal? http://www.edweek.org/media/sbac_final_narrative_20100620_4pm.pdf [Note: Pages 47-50 offer detailed descriptions of intended features of the assessments and proposed supports for implementation. Readers are encouraged to compare and contrast these descriptions with what has actually been developed (evidence below).] 

Q9: Since data gathering for the development of the SmarterBalanced Assessments has been conducted through a Federal Research Grant, and the Public Policy Institute has determined that the majority of parents have been uninformed about the new tests, how can the State Department of Education and/or SmarterBalanced Consortium ensure that Basic Protections of Human Subjects were upheld during the pilot and field test administrations over the past two years? http://www2.ed.gov/about/offices/list/ocfo/humansub.html.

Is it the responsibility of the SmarterBalanced Testing Consortium, the Federal Government, or State/District Board of Education Trustees to ensure that student and parental rights and ethical protections of Human Subjects were not violated in the process of developing the new tests?

Q10 (Background): As you are aware, ETS (Educational Testing Services) has been provided the multi-million dollar contract to administer and score the tests in California http://www.kcra.com/news/whos-grading-your-kids-assessment-test-in-california/31857614. According to the following article “ETS has lobbied against legislation to require agencies to “immediately initiate an investigation” after complaints on “inadequate” testing conditions. It also lobbied against a bill designed to safeguard pupil data in subcontracting.”  http://www.washingtonpost.com/blogs/answer-sheet/wp/2015/03/30/report-big-education-firms-spend-millions-lobbying-for-pro-testing-policies/

Q10a: How will the State Board of Education ensure the student data being provided to 3rd party entities (unbeknownst to many parents and students) would be secure?

Q10b: What are the responsibilities of the State and Districts to inform parents of how their children’s data may be used by 3rd party entities should they choose to take part in the testing?

Evidence of Testing Barriers and Implementation Problems

The Board is encouraged to consider the following evidence documenting serious concerns regarding the validity, reliability, security, accessibility, and fairness of the SmarterBalanced Assessments.

SmarterBalanced Mathematics Tests Are Fatally Flawed and Should Not Be Used documents serious user-interface barriers and design flaws in the SmarterBalanced Mathematics assessments. According to the analyses, the tests:

  • “Violate the standards they are supposed to assess; 
  • Cannot be adequately answered by students with the technology they are required to use; 
  • Use confusing and hard-to-use interfaces; or 
  • Are to be graded in such a way that incorrect answers are identified as correct and correct answers as incorrect.

No tests that are so flawed should be given to anyone. Certainly, with stakes so high for students and their teachers, these Smarter Balanced tests should not be administered. The boycotts of these tests by parents and some school districts are justified. Responsible government bodies should withdraw the tests from use before they do damage. Read the full report…“

Rasmussen notes that the numerous design flaws and interface barriers had been brought to the attention of the SmarterBalanced Assessment Consortium during the Spring 2014 pilot test and remained unresolved during the Spring 2015 test administration.

There are also misrepresentations of technology interface features in public awareness campaigns to inform parents and students about the new tests. According a video on the BeALearningHero.org website, fractions spontaneously appear [in fraction form] on the screen as a visual feature of the new assessments:

 

However, the actual screens that students encounter on the tests are completely different than what is shown above and the process of entering even one fraction into the text space provided is problematic.

Why are the actual screen representations of the tests not provided in the public education campaigns?

Further evidence of testing problems are included in the following clip with a selected portion of the transcript from the NAACP Press Conference on SBAC Testing in Seattle. The segment below is by Jesse Hagopian and the rest of the full Press Conference includes additional evidence and perspectives:

[Segment starts at 7:00 Minutes from original video] …

 

“SBAC testing in Seattle has been an unmitigated disaster. We have had reports across this city of absolute testing meltdown in building after building. You’re going to hear today from some of the people who have experienced that first hand. They’ve experienced the technological gliches that have wasted hours of instructional time. They’ve experienced their computer labs and their libraries shut down for weeks at a time and unable to be used for research. And they’ve experienced the human disaster of labeling kids failing and seeing the impact that that has on children and crushing their spirits, turning them off to education… and you’ll hear that I think in graphic detail…”

Hagopian continued,

“…these tests are invalid… the SBAC test is invalid. That’s a bold statement. How can I make that claim? It’s not based on my own estimation. It’s based on the SmarterBalanced Consortium itself. The SmarterBalanced Consortium has acknowledged in a memo, that the test has not been proven to be externally valid. And yet our state rushed to implement this test all across the state?”  See also http://sco.lt/729uev

In Maine, educators also have expressed concern regarding the validity of the SBAC exams. In Test Fatally Flawed, School Officials Say, Scott McFarland, Mount Desert Elementary School Principal posited:

“I’ve seen enough of it, seen enough glitches to know that it’s invalid data.”

From EdSource April, 2015 

“Laura Bolton, a teacher at William Saroyan Elementary in Fresno, who spoke to EdSource earlier about her students’ keyboard challenges, recently gave the Smarter Balanced midterms to her 3rd-graders. She said her students struggled with the instructions and added that they were not appropriate for the age of her students.”

The article also describes high school students’ experiences with instructional and user-interface barriers: A ninth grader quoted in the article, for example said “she didn’t know how to make the online calculator work on the test.”  The following excerpt from another article described that “Everyone was freaking out,” … with “students struggling to find the calculator and other function buttons on their tablets.”  

An 11th grader was quoted as indicating that “There was no paper available” to work out math problems.” “We’d have to draw on the computer screen [with a stylus]. Being on a computer was distracting.”

From a Parent comment in “SBAC in Ca”:

“According to my child, there were numerous technical problems with test administration. Not much of the questions addressed things they had learned. Confusing. Bandwidth continued to be a problem along with tablets accepting answers. As parents, our district failed to notify us when testing would take place. Normally we are inundated with information about dates, times, how to feed our kids, how much sleep they needed, etc. Had I known when these tests would take place, I would have opted my child out. We get no feedback from the school, district or the state of results, which seems immensely wrong. I have to based this all on what my child told me as my school and district told me nothing.” (Emphasis added)

From a Principal/Administrator: “Accessibility in SmarterBalanced”:

“Our district recently completed the Smarter Balanced Field Test. I was very disappointed with accessibility features of the assessment. I have heard and read that the assessment has unprecedented accessibility features and provides avenues for students to participate. The accommodations and embedded features were incredibly confusing for students with disabilities and struggling learners. Students needed to click and drag or click and highlight. The use of language glossaries were found to be inaccurate on many occasions. I’m concerned about the quality checks in place for language translations and the manner in which student can locate a word to see the glossaries. Likewise, we were told that devices needed to be certified to use with the assessment. There are currently ”no” certified devices. Sad to develop a system that looks good on paper and creates a ”good story” for accessibility but falls short with real world application. To my knowledge there is no means established to get feedback on the accessibility features. That too is disappointing. How will improvements be made if there isn’t a means to solicit input from users? I fear that we will be faced with the same issues next year.” (Emphasis added)

From a Teacher who teaches Mild and Moderate Special Day classes:

“I feel it is unfair that my SDC students are being required to take grade level state tests when they are not taught or learning at that grade level. I would like my 8th grade students whom are learning 4th grade math, to take the test at the 4th grade level. There is no point in throwing complex algebra problems to students who are working on their basic math facts. This does not tell use anything about what the students know or what they are gathering from school.”

From a Teacher in LAUSD on using ipads for the SBAC testing:

“Today was the worst day I have had in a classroom for 20 years.
At my school we received the ipads last Thursday. We started testing today.
1. I have never used an ipad, and had no training whatsoever. They had them on campus for a week, yet they did not train us to use them and navigate how to help students out.
2. It took 45 minutes to get my 35 students logged in, both sessions.
3. We got kicked off during a session due to the fact that the server was busy.
4. Many of the readings were too long for the students.
5. Students had trouble highlighting text.
6. Some students could not answer questions because they could not see them on the Ipads.”

From a Media Specialist on pilot tests:

“After administering the language arts and math pilot tests for smarter balanced, teachers gave me their feedback. The tests were extremely time consuming; some students were sitting for over two hours. The structure and content of the test were not age appropriate. Teachers found the level of student frustration to be very high–students were actually angry and acting out during the testing sessions. Students were giving up on questions based on the lengthy reading passages presented–even strong readers. One teacher described the testing sessions as ‘child abuse.’” (Emphasis and links added)

From a Teacher:

“We have been teaching critical reading strategies in all subjects at my junior high. I was very surprised to not see any easily accessible tools to mark the text on the language portion of the SBAC, including underlining key words or phrases, numbering paragraphs, marking out incorrect answers, and more. If we are to test our students with screen after screen of completely filled, multiple columns of text, we should have at minimum, easy to use tools to apply these strategies.”

From an Administrator:

“I recently took the 3rd grade sample test for SBAC. I was truly horrified and felt panic-stricken for the children who may potentially interact with this type of assessment. While the content rigor was greatly increased, my biggest concern was all of the varied technology responses that a 3rd grade student would have to have mastered to be able to present the correct answer. I highly suspect that students will know answers but will get them incorrect because they don’t know how to manipulate the varying technology skills required to show the correct answer. As a highly proficient adult, I had difficulty manipulating the technology required to plot points on a graph and when I returned to the directions for guidance, the directions fell short of what I needed to know. If my prediction is correct, we will not only have poor-looking data, but will also have false data.” (Emphasis added)

***

My letter to the Board is to encourage responsible, ethical, and legal communications about the assessment data that will apparently soon be disseminated to the public. Students’ beliefs about themselves as learners will be caught up in the tangle of any explanations surrounding the assessments, and as we know, decades of research demonstrate the power of student belief to be a factor impacting subsequent effort and persistence in learning.

To be transparent to the public regarding the current status of the assessments, the Board is encouraged to consider full disclosure regarding the lack of validity of the assessments as well as the numerous complaints that have been documented regarding the problematic administrations of the tests. While this may be difficult from a public relations standpoint, to misrepresent the scores as valid or accurate would likely lead to more serious problems. If the State does plan to base policy decisions on test scores provided by the SmarterBalanced Assessment Consortium (including this year’s full field administrations as any form of “baseline” for future comparisons), again, please consider the full range of legal and ethical implications.” 

[End of letter segment]

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[September 2015 Update]

To hear the State Board of Education discussion on the SmarterBalanced Assessments, including further questions that remain unanswered by the Executive Director of the SBAC at the September 2nd, 2015 California State Board of Education meeting, please click on the video below and view from ~1:45:00.  

Screenshot 2015-09-03 21.18.13

The latest update on EduResearcher is an Open Letter to the State Board of Education on the SBAC Test including written comments made publicly by Dr. Doug McRae, a retired test and measurement specialist who has been communicating concern about the lack of validity of the SBAC Assessments directly to the State Board of Education over the past 5 years. His September 2nd, 2015 public comment may be viewed on the video linked to the image below from 02:50:55 – 02:52:52. 

Screenshot 2015-09-05 16.05.37

 

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For related news on testing:

Confessions of an Assessment Field Tester // EdWeek

Superintendents and Legislators, Beware: The SBAC Tsunami is Coming//Wait,What?

SmarterBalanced Delays Spur Headaches in Wisconsin, Montana, and Elsewhere // EdWeek

More than a Dozen States Report Trouble With Computerized Common Core Tests // Washington Post

Grading the Common Core: No Teaching Experience Required // NY Times

Five Principles to Protect Student Data Privacy // Student Privacy Matters

EdTech Company [ThinkGate] Folds After Receiving Millions in Race To The Top Funds // Washington Post

Superintendent: Computerized Testing Gliches are Breach of Contract // Las Vegas Sun

Mayor Scott Lang [Democrat] Launches Sharp Criticisms of PARCC citing that Commissioner Chester “miscalculates the problem of unfunded liability, when kids fall off the school system and become wards of society.”

More than 90% of English Language Learners Projected to Fail Common Core SBAC Test // “Wait, What?”

Legal Implications of High Stakes Assessments: What States Should Know // OERI Office of Educational Research and Improvement

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Thanks to Anthony Cody and Julian Vasquez-Heilig for feedback and guidance that supported this work.

For more, follow EduResearcher.com and @ConnectEdProf and for current updates on issues related to testing, please visit Testing, Testing, 1,2,3…