Untitled Texas Attorney General Opinion ( 1986 )

The Attorwy General of Texas
JIM MAlTOX :%rch 26. 1986
Attorney General
Supreme Cowl Building Ronorable Juan J. Hinojosa Opinion No. JM-458
P. 0. BOX 12549 chairman
Austin. TX. 78711. 2549
Committee on Bud@% and Oversight Re: Administration of basic
5121475.2501
Telex 910/974-1357
for Judicial A:ifairs skills assessment instruments
Telecopier 51Z475-0268 Texas House of Representatives pursuant to section 21.551 of
P. 0. Box 2910 the Education Code
Austin, Texas 78769
714 Jackson, Suite 700
Dallas. TX. 752024509
214i74%8944 Mr. William N. Ki:rby
Commissioner of Education
Texas Education Al:ency
4824 Alberta Ave.. Suite 160 1701 North Congrem! Avenue
El Paso, TX. 799052793
915153334s4
Austin, Texas 78701
Gentlemen:
1001 Texas, Suite 700
Houslon. TX. 7700231 t 1 You have both inquired about the administration of the examina-
713/222-5888
tion described bj, section 21.551 of the Education Code to students
limited in Engliil proficiency. Section 21.551 of the Education Code
808 Broadway, Suite 312 provides in part:
Lubbock, TX. 79401-3479
8081747.5239 (a) The Central Education Agency shall adopt
appropriate criterion referenced assessment
4309 N. Tenth, Suite S instrummts designed to assess minimum basic
McAllen, TX. 79501-1685 skills ~competeacies in reading, writing, and
512l682.4547 mathematics for all pupils at the first, third,
fifth, seventh and ninth grade levels and in
200 Main Plaza, Suite 400
mathemac:l:csand English language arts for all
San Antonio, TX. 792052797 pupils at the 12th grade level.
512122.54191
The examination i13known as the Texas Assessment of Basic Skills. -See
Open Records DeciaiionNos. 352, 305 (1982).
An Equal Opportunity/
Affirmative Action Employer
The examinations adopted under section 21.551 of the Education
Code are used :tn designing compensatory and remedial education
programs for students. Educ. Code 921.557. Ao individual student's
examination resulw are confidential, but overall performance data for
each school and school district is made available to the public by the
school board. Ecluc. Code 521.556(b). The Central Education Agency
(CEA) is required to use the examination results to compare the
achievement levels of Texas students to those of students in other
parts of the counmy. Educ. Code 521.559.
p. 2089
Honorable Juan J. Hinojosa (JM-458)
Mr. William N. Kirby
Page 2
The examination has been administered in English since its
inception, and Represeutatlve Hinojosa questions the appropriateness
of this practice for students who have been identified as Limited
English Proficiency (LEP) s,tudents. The following definition of LEP
students is included in thic Education Code provisions on bilingual
education and special language programs:
'Students of limited English proficiency' means
students whose p'rimary language is other than
English and whose English language skills are such
that the students have difficulty performing
ordinary classwork in English.
Educ. Code $21.452(3).
School districts are I,equiredto identify the students of limited
English proficiency in cad. school as a first step toward establishing
a bilingual education prol:ram. Educ. Code 521.453. Representative
Rinojosa asks the following.question:
Does an assessment test given only in English
meet the requirtmlcnts of section 21.551 of the
Texas Education ICode for Limited English Pro-
ficiency (LEP) d&ldren?
This question is particuk.rly directed at the administration of the
test to first graders in ,the La Joya Independent School District,
where 426 of the 562 first graders have been identified as limited
English proficiency students according to the standards found in
section 21.453 of the Education Code. Spanish is the primary language
of the students inquired about. We will address Representative
Hinojosa's question in the context of these facts.
A school district with. 20 or more LRP students in any language
classification in the same grade level is required to establish a
bilingual education program governed by sections 21.451 thrtigh 21.463
of the Education Code and we assume that the La Joya District has done
this. The LRP students enrolled in a bilingual program are to receive
instruction in English language skills while they study basic skills
in their primary language. Educ. Code 521.454. Their progress in
English language skills arid.in other subjects is given considerable
monitoring under Education Code provisions. Criteria for entry into
the program may include performance on a CPA-approved English language
proficiency test administered as an oral test to students in
kindergarten or grade 1 and as an oral and written test to all other
students. Educ. Code 521.4,55(a). A CPA-approved test in the primary
language may also be given. Id. An LEP student may be transferred
out of a bilingual educatj.onprogram if he is able ~to.participate
equally in a regular all-llnglishinstructional program as determined
by:
p. 2090
Honorable Juan J. Hinojosa (JM-458)
Mr. William N. Kirby
Page 3
(1) tests administered at the end of each
school year to tistennlnethe extent to which the
student has dewloped oral and written language
proficiency and specific language skills in both
the student's pr.Lmarylanguage and English;
(2) an achiewment score at or above the 40th
percentile in the reading and language arts
sections of an English standardized test approved
by the agency; and
(3) other indications of a student's overall
progress as determined by. but not limited to,
criterion-refer~wed test scores, subjective
teacher evaluation, and parental evaluation.
Educ. Code 521.455(h). The Central Education Agency is to monitor
school district compliance with state rules in several areas,
including testing materials. Educ. Code 921.461. In addition, each
district that is required to offer bilingual education must establish
a language proficiency ass,wsment committee which shall:
(1) review all pertinent information on
limited English proficiency students, including
the home langua@r survey, the language proficiency
tests in English and the primary language, each
student's achievement in content areas, and each
student's emotio:Ziland social attainment;
(2) make recommendations concerning the most
appropriate placnnent for the educational advance-
ment of the limited English proficiency student
after the elementary grades;
(3) review each limited English proficiency
student's progregs at the end of the school year
in order to -determine future appropriate
placement;
(4) monitor t‘heprogress of students formerly
classified as limited English proficiency who have
exited from the bilingual education or special
language program and, based ou the information,
designate the most appropriate placement for the
student. . . . (IZmphasisadded).
Educ. Code 121.462(c).
The progress of a stusdentenrolled in a bilingual program thus
receives considerable ewluation at the district level, and the
district's compliance witl. program requirements is subject to review
p. 2091
Honorable Juan J. Einojosa (JM-458)
Mr. William N. Kirby
Page 4
by the Central Education Agency. The testing requirements are geared
to the bilingual program. Administration of the basic assessment of
skills examination in English to the first graders in question would
provide little or no additjlonalinformation about their progress in
school. The results would be more likely to misrepresent an LEP
student's educational attainments. See Castaneda v. Pickard, 648 F.2d
989, 998, 1014; Castaneda '5. Pickard,781 F.2d 456, 462-63 (5th Cir.
1986).
The court's remarks on testing in Castaneda v. Pickard, 648 F.2d
989 (5th Clr. 1981), are instructive here. See also Castaneda v.
Plckard, 781 F.2d 456 (5th Cir. 1986) (appeal of district court
decision on remand). A Texas school district's use of English
language tests to determiw ability grouping for LEP students was
challenged as discriminatory and the court stated as follows:
'Ability groups' for first, second and third grade
are determined lyr three basic factors: school
grades, teacher recommendations and scores on
standardized achievement tests. These tests are
administered in Iluglishand cannot, of course, be
expected to accutately assess the 'ability' of a
student who has :Limited English language skills
and has been receiving a substantial part of his
or her education !!nanother language as part of a
bilingual education program.
Castaneda v. Pickard, 648 F.2d 989, 998 (5th Cir. 1981). The court
pointed out that the abi:Lity grouping practices could "operate to
confuse measures of two diE:Eerentcharacteristics, i.e., language and
intelligence . . .u and dir,sctedthe district court- evaluate this
practice on remand. 648 F.Zd at 998. See Castaneda v. Pickard, 781
F.2d 456 (5th Cir. 1986:1 (ability grouping practices were found
non-discriminatory).
Castaneda v. Pickard al.80addressed the school district's testing
of LID students' progress in the bilingual education program. The
court noted that the standardized English language achievement test
used by the district to test.all subject areas did not meaningfully
assess the achievement or ability of children who were not yet
literate in English. 6411 F.2d at 1014. The court directed the
district court on remand to require the Texas Education Agency and the
school district to 1mplawr.t a Spanish language test to measure the
progress of LEP students in subjects other than English.
We recognize that Castaneda arises out of particular facts
different from the facts g;Eore US, and that we cannot investigate or
resolve fact questions in the opinion process. Nonetheless, we
believe the precedent of Castaneda requires us to advise the
requestors that the first: grade LEP students in question are not
required to take the English language assessment of basic skills
p. 2092
,
Honorable Juan J. Elnojosa (JM-458)
Mr. William N. Kirby
Page 5
examination described in section 21.551 of the Education Code. It is
not an appropriate fnstrumont for designating compensatory or remedial
instruction for the LEP Hrst graders who have been evaluated for
admission to the bilingual education program and whose progress in
that program is being monitored under the relevant statutes. We
conclude, on the basis cf sections 21.451 through 21.463 of the
Education Code and of Castaneda v. Pickard, that an all English test
is not an "appropriate. . assessment [instrument]" to test LEP
first graders-in the bilingual education program on "minimum basic
skills competencies in reatldng,writing, and mathematics." Educ. Code
921.551(a).
Accordingly, LEP first graders in a bilingual program are
exempted from the basic skiILlsassessment examination until the Texas
Education Agency designs s,n appropriate exam for avaluating them for
compensatory education. In the alternative, the CPA may make a
determination that the beslc skills competencies of this group of LEP
children have been tested sufficiently under the existing requirements
for testing participants in the bilingual education program. It would
appear that giving a Spanish language examination would be a means of
assessing their skills. The Central Education Agency, however, has
access to the relevant crformation about the skills first graders
should master, about the feasibility of designing a Spanish language
exam to test those skills, and about the testing these first graders
have already undergone as ,participantsin a bilingual program. See
also Educ. Code 521.554 (local school district may adopt and
administer criterion and/or norm-referenced examinations at any grade
level). The CRA may conclude, in the exercise of its administrative
discretion, that the extensive testing of these first graders done in
the bilingual program Is sufficient to carry out the purposes of
article 21.551 et seq. of the Education Code.
We turn to Commissioner Kirby's questions, which incorporate
Representative Hinojosa's second question.
ConnnissionerKirby has asked four questions. We will answer the
first two questions together. He asks:
1. Does the exemption permitted in section
21.555 apply only to handicapped students . . .
whose admission, review, and dismissal committees
determine that their disability specifically
prevents mastery of the competencies to be
measured?
2. May the S,tate Board of Education exempt
classes of students from the basic skills examina-
tion other than those prescribed in section
21.5551
p. 2093
,
Honorable Juan J. Hinojosa (JM-458)
Mr. William N. Kirby
Page 6
Section 21.551 of the Education Code requires the Central
Education Agency to adopt nppropriate assessment instruments to assess
certain basic skills
for all pupils at the first, third, fifth,
saventh,and ninth grade. . . . (Emphasis added).
Section 21.555 of the Educnt:ionCode provides as follows:
Any student who has a physical or manta1
impairment or a learning disability that prevents
the student fro-mmastering the competencies which
the basic skil,ls assessment instrumeuts are
designed to measure may be exempted from the
requirements of this subchapter.
Section 21.551 requires assessment of all pupils In the enumerated
grades. Section 21.555 provides an express exception from the testing
requirement for the students it describes. In answering Representa-
tive Hinojosa's question, we have concluded that the Castaneda case
and the bilingual education laws form the basis of an exception from
the requirements of sect:lon 21.551 of the Education Code. Thus,
section 21.555 does not state the only possible exception from the
testing requirements. Whether any other implied exceptions exist must
be decided on a case-by-carle:
basis.
We note, in this context, that the Texas Education Agency in
effect exempts LRP student,s from the basic skills examination. The
letter from the Texas Education Agency requesting our opinion informs
us of its policy on testing "students who do not read and write the
English language with sufficient skill to provide meaningful answers
on the 'examinations":
Districts have been instructed to identify such
students, to com$Lete the demographic information
and. submit an answer sheet to account for the
students, and to provide other productive
activities for the studants during the testing
period. Each district is provided with three
separate reports of student scores on the exams:
a summary report for all studmts; a summary
report solely Eor limited English proficient
students; and, a summary report for all students
except limited English proficient students.
These students thus receiw a zero on the examination. This practice
is not authorized by the statute and we find no implied authority for
it.
p. 2094
Honorable Juan J. Hinojosa (JM-458)
Mr. William N. Kirby
Page 7
The third question is as follows:
3. Does section 21.551 require that the same
test be administered to all students at a grade
level, or does it require that the State Board of
Education develop and adopt different 'appro-
priate' tests fo,cdifferent students or classes of
students within ,agrade level?
Our answer to Representative Hinojosa's specific question about LEP
first graders was based in part on facts about that group of students.
You ask a broad question, which can only be answered in connection
with a specific group of students, in the light of the relevant facts.
Accordingly, we do not address your third question.
Your fourth question 11sas follows:
4. May the !Ir:ateBoard of Education waive or
postpone the testing of certain classes of
students until 'appropriate' assessment instru-
ments are developed and adopted for those classes
of students?
We find no provision setting a date for the examination or
requiring that all students be tested on the same date. The State
Board of Education may polstpone the testing of certain classes of
students if it can do so consistently with the statute. -See Educ.
Code 1521.551, 21.556 (conE:Ldentialityof tests).
SUMMARY
Section 21.551 of the Education Code, governs
the basic assef.sment of skills examination for
students in the first grade as well as higher
grades. This tes,tingrequirement is subject to an
implied exemption, based-on Castaneda v; Pickard,
648 P.2d 989 (5th Cir. 19811.
. . and sections 21.451
through 21.463 of the Education Code for first
grade students of limited English proficiency who
are enrolled in a bilingual education program.
7 I M MATTOX
Attorney General of Texas
JACK BIGHTOWER
First Assistant Attorney General
p. 2095
,
Honorable Juan J. Hinojosa (JM-458)
Mr. William N. Kirby
Page 8
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2096