Students who are limited in their English proficiency pose particularly daunting problems for schools. There are more than 4.4 million LEP children in public schools in the United States - twice the number of a decade ago, and nearly 10 percent of total enrollment. The reauthorized ESEA completes an effort started in 1994 to include all LEP students in state assessment programs. This is something that the National Association for Bilingual Education (NABE) has advocated for years, arguing that without such a requirement many LEP students were simply exempted from the tests and ignored. "The practice of exempting LEP students undermines accountability," Patricia Loera, legislative director of NABE told me. "Having them included is a key way we can ensure that all LEP students get the education they deserve."
But the devil is in the details. For example, many states will likely go from exempting LEP students to just throwing them into English tests. An official with Indiana's Department of Education, who wished to remain anonymous, told me that while in the past LEP students were not forced to take standardized tests in English, "that has all changed now with ESEA." In Indiana, even immigrant students who have been in the United States for only one week could be forced to take the test in a language they can't understand. Some states will force LEP students to take tests in English after their first year of being in school. NABE disagrees with such policies, and at this point is trying to ascertain how many states will be making students take tests they don't understand.
Paul Weckstein of the Center for Law and Education in Washington, D.C., questions whether such practices are legal. "Such practices may violate ESEA itself, and might also run afoul of civil rights laws," he told me. He noted the general requirement in ESEA that the assessments be "used for purposes for which such assessments are valid and reliable, and be consistent with relevant, nationally recognized professional and technical standards." Weckstein wonders how testing children in a language they don't understand can be considered valid or reliable.
In fact, the ESEA legislation explicitly states that LEP students "shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments administered to such students ... including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do in academic content areas, until such students have achieved English language proficiency."
The operative phrase is "to the extent practicable," and many state education departments have decided that it just isn't "practicable" to test students in their native language or use alternative assessments. Native-language tests and other forms of alternative assessments are permissible under ESEA for the first three years that LEP students attend schools in the United States and for an additional two, if educators determine on a student-by-student basis that those assessments will give reliable information about student progress. (ESEA requires assessing all LEP students annually to measure growth in English, but that is in addition to their participation in the states' overall assessment programs.)