ESSA rulemaking committee examines assessment of English learners

ESSA rulemaking committee examines assessment of English learners


Source: National School Boards Association

The ESSA Negotiated Rulemaking Committee convened for the third day (and final day of this first session) Wednesday at the U.S. Department of Education in Washington, D.C.

Negotiators demonstrated the unique needs of their constituencies to address the assessments of English learners, circling back to the importance of providing equal access for all students.  The meeting began with a clarification regarding the proposal to organize a subcommittee to create the definition of “students with the most significant disabilities.” With two negotiators expressing concern over the need for a federal definition, the general consensus of the committee was to form a subcommittee to meet to look at various state definitions and consider potential terms for a federal definition. The subcommittee was formed, and the Department will work to assist in coordination conference calls of the subcommittee, which will not be public, per the committee’s operating procedures but that all committee members would receive the conference call information. (See list of subcommittee members below).

The agenda items addressed included the assessment of English learners (ELs). Specifically, the issue papers:  (1) the Inclusion of English learners in academic assessments (Issue Paper #5a),  (2) the inclusion of English learners in English language proficiency assessments (Issue #5b) and (3) updating assessment regulations to reflect statutory changes (Issue #6).

Negotiators examined the issue of the statute that specifies that a state must make every effort to develop assessments in languages (other than English) present “to a significant extent” in the student population. Negotiators extensively discussed the issue around what must a state do to demonstrate that it has met the requirement to “make every effort.”

The Department of Education staff provided a history of  assessing students who are English learners (ELs), even noting that some states prohibit assessments done in one’s native language.  The negotiators sought more information regarding how quickly a student may learn English both listening and speaking, and actually reading and writing in the academic subjects.  The Department of Education staff said that depending on a number of factors (i.e. proficiency in English, etc.) that it takes on average 2 to 3 years for oral acquisition and 7-8 for academic acquisition.  At times, some of the negotiators became emotional during the conversation sharing that as students they were punished for not knowing the English language, and that not instructing children in their native language oppresses their learning.

In summary, of most significant, negotiators discussed the following:

  • What must a state do to demonstrate it has met the requirements to “make every effort?”
  • The effect of testing ELs and the inclusion of EL population in the state’s accountability system
  • Data requirements currently applicable to states and school boards
  • The risk of over-regulating state plans, in relation to EL data reporting requirements
  • Differences between language translation and assessing in the native language
  • The need to have families make the decision regarding appropriate EL accommodations

Negotiators expressed the need for regulations not to be too prescriptive for states as they need flexibility – especially in terms of the different types of languages that are specified which may be predominant in one state – but not necessarily in another.  Derrick Chau from Los Angeles Unified School District, California said that expecting California to respond in a prescriptive way may not meet the needs of the local districts.

During the discussions, the local governance perspective was shared by Alvin Wilbanks, Gwinnett County Public Schools, Georgia as they discussed the importance of providing guidance versus regulations. Mr. Wilbanks noted that the ideas discussed are good ones but that you need to keep in mind the impact of costs on the district if something is regulated.  Thomas Ahart, Des Moines Public Schools, Iowa agreed with Mr. Wilbanks and said “We are trying to protect student rights which has to happen by providing appropriate resources.”

The issues of assessing ELs and the appropriate way in which a state must demonstrate compliance with this ESSA provision produced the widest array of opinions between negotiators expressed thus far. Some negotiators urged the Department to create specific parameters, standards or terms in the regulations, while others argued that the issue of compliance with ESSA provisions should be left to the states to determine individually. In wrapping up the conversation, negotiators seemed to agree that guidance to states highlighting best practices would be helpful, and that current technical assistance provided by the Department was useful. A few negotiators commented that the best approach was for the federal and state government to work in partnership to accomplish goals related to the education and assessment of ELs.

With regard to EL proficiency assessments, a major decision point for the Department is whether English language proficiency assessments will be subject to peer review – and their representatives did not tip their hand.

There were many suggestions from negotiators for additional regulation, including:

  • Subject screening, content & achievement assessments for ELP to peer review
  • Clarify that LEAs must use the statewide proficiency assessment
  • Explicitly exempt Native American language speakers from English language assessments until at least 50 percent of instruction is in English

The Committee finished the day with updating assessment regulations to reflect statutory changes (Issue #6).

Each day of this session concluded with an invitation for public comment.  There were no requests on Monday or Tuesday, however, Adam Fernandez with MALDEF made a comment to round out the final day.  Fernandez gave a legal and historical perspective on accommodations for English learners and the relationship of ESSA regulations to other laws such as the Individual with Disabilities Education Act (IDEA).

Committee members will receive draft summary of the Committee’s work for the first session for their review. Once the Committee has approved the draft summary it will become a public document.

The committee will convene for its second session on April 6-8.

NSBA will continue to provide updates about the committee’s activities, and continue to reinforce the importance of local school board governance and flexibility.


Subcommittee members (as noted above)

  • Rita Pin Ahrens, District of Columbia
  • Kerri Briggs, Exxon Mobile, Texas
  • Regina Goings, Clark County School District, Nevada
  • Ron Hager, National Disability Rights Network, District of Columbia
  • Leslie Harper, Leech Lake Band of Ojibwe, Minnesota
  • Liz King, The Leadership Conference on Civil & Human Rights, District of Columbia
  • Lisa Mack, Ohio PTA, Ohio
  • Aaron Payment, Sault St. Marie Tribe, Michigan
  • Mary Cathryn Ricker, St. Paul Public Schools/American Federation of Teachers, Minnesota

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