KnowledgeBases > The Use of Tests When Making High Stakes Decisions for Students - Legal Principles
A Resource Guide for Educators and Policy-Makers
Prepared by the Office Civil Rights, US Department of Education
CHAPTER 2: Legal Principles
Testing Of Students with Limited English Proficiency
Testing of students with limited English proficiency in the elementary and secondary education context raises a set of unique issues. To understand the obligations of states and school districts with regard to high-stakes testing of such students, it is important to understand the basic obligations of school districts and states under Title VI and federal law that relate to language minority students who are learning English.
Title VI prohibits discrimination based on race, color, or national origin. On May 25, 1970, the United States Department of Health, Education, and Welfareís Office for Civil Rights issued a policy memorandum entitled "Identification of Discrimination and Denial of Services on the Basis of National Origin." The May 25th memorandum clarified the responsibility of school districts, under Title VI, to provide equal educational opportunity to national origin minority group students whose inability to speak and understand the English language excludes them from effective participation in any education program offered by a school district. This memorandum was cited with approval by the Supreme Court in its decision in Lau v. Nichols, which held that the districtís policy of teaching national origin minority group children only in English, without any special assistance, deprived them of the opportunity to benefit from the districtís education program, including meeting the English language proficiency standards required by the state for a high school diploma. The Lau case held that such policies are barred when they have the effect of denying such benefits, even though no purposeful design is present.
Subsequently, Castaneda v. Pickard, relying on the language of the Equal Educational Opportunities Act (EEOA), explained the steps school districts must take to help students with limited English proficiency overcome language barriers to ensure that they can participate meaningfully in the districtsí educational programs. The court stated that school districts have an obligation to provide services that enable students to acquire English language proficiency. A school system that chooses to temporarily emphasize English over other subjects retains an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English.
Under the Castaneda standards, school districts have broad discretion in choosing a program of instruction for limited English proficient students. However, the program must be based on sound educational theory, must be adequately supported so that the program has a realistic chance of success, and must be periodically evaluated and revised, if necessary, to achieve its goals.
The disparate impact framework discussed earlier in the guide in Chapter 2 Part (I)(B) may also be used to examine whether tests used for high-stakes purposes result in a discriminatory impact upon students with limited English proficiency. As part of this analysis, questions may arise regarding the validity and reliability of the test for these students. Depending upon the purpose of the test and the characteristics of the populations being tested, in some situations, accommodations or other forms of assessment of the same construct may be necessary. In short, the obligation is to ensure that the same constructs are being measured for all students.
There are three particularly important areas involving high-stakes testing of students with limited English proficiency: (1) tests used to determine a studentís proficiency in the areas of speaking, listening, reading, or writing English for the purpose of determining whether the student should be provided with a program or services to enable the student to acquire English language skills (and, later, for the purpose of determining whether the student is ready to exit the program or services); (2) tests used to determine if the student meets the criteria for other specialized instructional programs, such as gifted and talented or vocational education programs; and (3) systemwide tests, including graduation tests, administered to determine if students have met performance standards.
Tests used to determine a studentís initial and continuing need for special language programs should be appropriate in light of a districtís own performance expectations and otherwise valid and reliable for the purpose used. Tests used by schools to help select students for specialized instructional programs, including programs for gifted and talented students, should not screen out limited English proficient students unless the program itself requires proficiency in English for meaningful participation. When a state or school district adopts content and performance standards and uses tests for high-stakes purposes, such as graduation tests, to measure whether students have mastered those standards, a critical factor under Title VI is whether the overall educational program provided to students with limited English proficiency is reasonably calculated to enable the students to master the knowledge and skills that are required to pass the test. When education agencies institute standards-based testing, it is important for them to examine their programs for students with limited English proficiency to determine when and how these students will be provided with the instruction needed to prepare them to pass the test in question.†
In addition, students with limited English proficiency may not be categorically excluded from standardized testing designed to increase accountability of educational programs for effective instruction and student performance. If these students are not included, the test data will not fairly reflect the performance of all students for whom the education agency is responsible. Such test data can also help a district assess the effectiveness of its content and English language acquisition programs.
For information on the factors that help ensure accuracy of tests for limited English proficient students, see discussion infra Chapter 1 (Test Measurement Principles) Part II (B) (Testing of Limited English Proficient Students). In making decisions about testing limited English proficient students, factors such as the studentís level of English proficiency, the primary language of instruction, the level of literacy in the native language, and the number of years of instruction in English may all be pertinent. When students participate in assessments designed to meet the requirements of Title I of the Elementary and Secondary Education Act, as amended, those assessments must be implemented in a manner that is consistent with both the requirements of Title VI and Title I.
The Use of Tests When Making High Stakes Decisions for Students, Office for Civil Rights, U.S. Department of Education