New York: Testimony on Limited English Proficient/English Language Learner (LEP/ELL) Assessments

Harold F. Schiffman haroldfs at
Fri Oct 27 12:56:47 UTC 2006

Testimony on Limited English Proficient/English Language Learner (LEP/ELL)

October 26, 2006

NYSUT Testimony before the Assembly Standing Committee on Education

Subject: Limited English Proficient/English Language Learner (LEP/ELL)
Student Assessment Policy in New York State under the Federal No Child
Left Behind Act.

Good morning.  My name is Maria Neira, Vice President of New York State
United Teachers. I am here today representing both NYSUT and the UFT.  As
you know, the UFT is our largest affiliate with 160,000 members, and NYSUT
represents 575,000 members, including teachers, school-related
professionals, higher education faculty, other professionals in education
and health care, and retirees. I also speak from the perspective of an ELL
student and former 4th grade bilingual teacher at the Bilingual Bicultural
Mini-school in Manhattan and as an advocate for students, teachers and
families. On behalf of NYSUT, I thank Assemblywoman Nolan and the Assembly
Standing Committee on Education for providing this opportunity to share
our views regarding changes in New York policy concerning the assessment
of English language learners.

NYSUT respectfully disagrees with the New York State Education
Department's current plan to comply with the federal testing requirements
related to recently arrived English language learners. NYSUT believes that
the new policy will have a negative and devastating impact on English
language learners, their education, their parents, their teachers, and the
community. We believe that the United States Department of Education must
allow New York State the flexibility to develop a more viable and sound
alternative compliance plan in order to satisfy the federal requirements.

This past summer, the United States Department of Education reversed a
position it had authorized since 2003.  Based on the findings of a Title I
peer review, they rescinded the New York State Education Department's
(SED's) authorization to use the New York State English as a Second
Language Achievement Test (commonly referred to as the NYSESLAT) for
purposes of determining English language proficiency and school
accountability under the federal No Child Left Behind Act.  Prior to the
2006-07 school year, LEP/ELL students who had attended school in the
United States for less than three consecutive school years were allowed to
take the NYSESLAT in lieu of the Grades 4 and 8, and in 2005-06, the
Grades 3-8, English language arts (ELA) assessments to meet Title I
accountability requirements.  State policy leaders, educators and parents
were led to believe that the NYSESLAT would continue to serve this dual
purpose, especially in light of the latest revisions to the NYSESLAT. In a
letter to Commissioner Mills, the USDOE specifically indicated:  "The
NYSESLAT is not sufficiently comparable to the regular New York State
English language arts assessment to use as a substitute language arts
assessment."  They gave the New York State Education Department 25 days to
provide a plan and detailed outline for how it will come into compliance
by the end of 2006-07.

To comply with this directive, the State Education Department will require
all English language learner students who have been in the United States
for as little as one year to take the same Grades 3 through 8 English
language arts assessments as the rest of the student population in
addition to the NYSESLAT. It is our understanding that the version of the
NYSESLAT reviewed by the USDOE was not the most currently revised test
that will be administered this year.  The State Education Department in
collaboration with the NYSESLAT's developer has redesigned this assessment
to more closely align it with New York State's English language arts and
reading standards.  The bottom line is that New York is complying with a
directive based on a USDOE finding related to a test that is no longer in
use in this state.  We believe the State Education Department should be
granted a waiver by the USDOE on complying with its directive until the
federal government reviews the latest version of the NYSESLAT.

By staying the course, ELLs will be in the dubiously unique position of
being the only subgroup in the state tested twice in English language
development.  NYSUT does not support this response!  It's unfair and
educationally unsound. By definition in state and federal law and
regulations, English language learners in New York are not proficient in
English.  Their group classification, as required by federal and New York
law and regulation, is based on lack of English proficiency.  There is
absolutely no evidence to show that multiple testing in English is what
will make ELLs English proficient, just as speaking to them in English
louder will not make them understand better.  However, sustained quality
instruction over time by caring and qualified teachers will.  NYSUT
believes that maximum time should be devoted to teaching and learning and
not to inappropriate testing.

Our concerns are echoed by the educators, ELL practitioners and advocates
who attended a July 2006 meeting of SED's newly established ELL/ESL
Committee of Practitioners.  These advocates are fearful that requiring
newly arrived ELL students to take the ELA assessments will unfairly label
students as failures and inappropriately increase the number of schools in
need of improvement. We believe, and many other members of the Committee
of Practitioners agree, that the New York State plan to administer the
English language arts assessments to ELLs will not provide accurate or
useful information on the English language arts skills of our more
recently arrived ELL students.  There is absolutely no evidence that the
state's current ELA assessments would provide a more valid and more
reliable measure of ELL students' performance.  Intuitively we know that
it would not be a better measure because it was developed to measure the
performance of proficient English speakers, many of whom do not speak any
other language.  No one seems to know how many students, if any,
participated in the field testing of these ELA assessments which were used
in the standards setting process.

We believe states and school districts should be held accountable for the
performance of all students, including recently arrived English language
learners.  There must be high expectations for learning and measurements
to determine how students are performing and progressing.  And assessments
must be used as tools for improving progress, not as punishment for
struggling schools. NYSUT will not support unfair testing.  I was recently
reminded of the 1974 landmark civil rights Supreme Court Decision, Lau vs.
Nichols: "There is no equality of treatment merely by providing students
with the same facilities, textbooks, teachers and curriculum; for students
who do not understand English are effectively foreclosed from any
meaningful education."

It is NYSUT's position that this Supreme Court ruling also extends to the
"same test."  Using the same ELA tests designed for, and validated and
normed on English proficient students to measure the ELA performance of
their ELL peers is to blatantly deny them the civil rights protected under
this decision. We want to remind the federal and state officials of the
Lau decision and their responsibility to refrain from issuing or
implementing policy and procedures that are in violation of that court
ruling.  Again, I repeat, it is our opinion that in the United States the
same test is not equal treatment for our ELL students.

While the research clearly tells us that it takes from four to seven years
for newly arrived students to become proficient in English, the
performance data on students taking the NYSESLAT is further evidence of
the difficulty ELL students have achieving language proficiency.  Based on
2005 SED data, only 11 percent of ELL students scored proficient on the
NYSESLAT.  This data underscores the huge gap in their understanding of
the English language. According to a recent report, published by the
American Educational Research Association, some students can learn basic
English reading skills in two years, but their chances of failing late in
school are still greater than English-speaking students.  It takes far
longer than two years to become fluent as native speakers to acquire the
broad vocabulary and reading comprehension skills needed for sustained
academic achievement.  A 1997 report by Diana August and Kenje Hakuta
titled Improving Schooling for Language Minority Students stated that it
takes 4-7 years for academic proficiency.  This time frame was recently
reaffirmed through a meta-analysis of research titled Developing Literacy
in Second Language Learners: A Report of the National Literacy Panel on
Language - Minority Children and Youth.

Another study conducted by researchers Virginia Collier and Wayne Thomas
examined the question "How Long Does it Take an ESOL student to learn
English for School Purposes"?  The researchers determined that older
students who have not had any schooling in their first language generally
required 7-10 years to perform at the average level of native English
speakers on academic tests in English.  Further findings noted that
students with 2-3 years of schooling generally require 5-7 years to
perform at this level. The importance of acquiring English proficiency as
quickly and efficiently as possible cannot be overstated.  Students who
cannot read and write proficiently in English cannot participate fully in
schools, work places or society.  Inadequate skills in English, reading
and writing relegates these individuals to the sidelines and affects this
nation's potential for economic competitiveness, innovation, productivity,
growth and quality of life. (August and Hakuta, 2006)

There are approximately 200,000 English language learners in New York
State. Across the nation and in New York State, the number of students
from non-English speaking backgrounds continues to rise. In fact, they
represent the fastest growing segment of the student population. Most of
these students are in high-need school districts, including, obviously,
New York City.  Many ELL students received little or no formal education
before they arrived in the country. Here's the bottom line - the federal
government pays two-thirds of the State Education Department's costs for
staffing and programs of the SED's Elementary, Middle, Secondary and
Continuing Education office and with that weapon drives policy and
spending decisions, while it only pays 6 cents of every K-12 education
dollar spent in the schools in our state.  The federal government promised
to fully fund IDEA but hasn't since 1975.  IDEA is currently $682 million
short of its authorized level.  NCLB has been another empty promise - New
York State's funding is $673 million short of its authorization.  We
should all be concerned about SED's need to rely on federal resources to
support its operations, and the "nexus" it potentially has on shaping
state education policy to conform with requirements mandated by the
federal government.

While not the topic of this hearing, we would be remiss if we did not
mention the harmful affects of another "flip flop" in USDOE policy
affecting the assessment of students with disabilities.  The USDOE policy
shift now prohibits New York State's practice of administering an
out-of-level assessment to students with moderate cognitive disabilities
who are unable to meet grade-level standards.  This practice will now
require, for example, an eighth grade student with a disability, reading
on a third grade level to take a Grade 8 English language arts assessment.
We regard this misguided directive as another example of labeling another
group of our vulnerable learners as failures.  Once again, it is unfair to
students. NYSUT remains determined to fight against the USDOE policy
shifts, and we urge your advocacy both at the state and federal level to
limit the intrusion of the USDOE in establishing state policy, and to seek
fairer and more appropriate assessments for our students.  It is still not
too late for USDOE and SED to make a mid-course adjustment.  It's not just
the right thing to do.  It's the only thing to do.

We need to seek other more appropriate options, to ensure compliance with
NCLB accountability requirements and provide reasonable time to implement
the options.  These options must reflect the best thinking of what is good
for our students, teachers and schools and should not be driven by
Washington policymakers who have not considered the harmful affects of bad

I urge your advocacy for the following recommendations:

1.  The State Legislature should urge the USDOE to grant the State the
authority to administer the revised NYSESLAT assessment for the purposes
of both Title I accountability and Title III language proficiency, in lieu
of requiring recently arrived ELL students take an inappropriate ELA

2. The State Education Department should continue to review data on ELL
students who have previously taken the ELA and, if necessary, conduct an
additional statistically valid sampling of ELL students participating in
the grades 3-8 English language arts assessments to continuously improve

3. Based on this data and broad-based input from the field, SED should
develop a grade-by-grade NYSESLAT assessment to be used as a fair measure
of proficiency in reading and English language arts skills for English
language learners in this country for less than three years.

4. The New York State Legislature should supplement the SED for any
sanctions that may be imposed by the USDOE if they refuse to allow the
time needed to do the right thing for our ELL students by providing them
with fair testing.

ELL students don't have a lot of political power.  Their parents are often
struggling to learn English themselves.  Sometimes, the only advocates
these students have are their classroom teachers, the educators struggling
to help them learn English.  I was one of those teachers.  I know hundreds
of them.  They're appalled by what's being done to their students, and
they're demanding a change.  One of those teachers is here with me today.
Katie Kurjakovic is an elementary ESL teacher in P. S. 11 in Queens.  She
agreed to come down and answer questions from the classroom perspective, a
perspective that's been missing in all of these discussions in Washington.
Later in this hearing you will hear from Martin Plotkin, the UFT
representative from District 6 - the district with the largest
concentration of ELL students in New York City.  He will speak from
practical experience with students and teachers. USDOE and SED didn't
speak to teachers like Katie before they turned down this road.  They
didn't ask teachers like her the best way to assess progress for ELL
students. They didn't ask teachers like her what works.

If they had asked, we would have a very different plan in meeting our
collective responsibility for compliance.

Thank you.


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