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10 California School Districts Cite No Child Law in Suit: They say requiring English-only tests defies federal rules

California is breaking a federal law by testing students only in English -- then labeling schools and districts failures when English learners can't understand the exams -- according to a lawsuit filed Wednesday in San Francisco by 10 school districts.

The suit, naming Gov. Arnold Schwarzenegger and state education officials, says that federal law requires states to test English learners in their first language if necessary, or use simplified English to measure academic skills.

Across the state, 1.6 million kids -- 1 in 4 students -- speak little English. Most, 85 percent, speak Spanish.

In the Hayward Unified School District, the only Bay Area district to join the Superior Court suit, English learners have jumped 66 percent in the last decade. More than a third of Hayward's students speak little English.

"We are not educational failures," said Superintendent Foch "Tut" Pensis of the Coachella Valley district in Riverside County.

His district initiated the suit after the state said it and more than 100 others failed to reach academic targets under a provision of the federal No Child Left Behind Act. Under the rules, the state could fire Pensis and take over the district if test scores in Coachella remain low.

"Our teachers and students are doing very well once we are given the opportunity to learn the English language," Pensis said Wednesday.

The state, however, maintains that it must test students in English. How else can you test their knowledge of English grammar and their writing skills, asked Rick Miller, a spokesman for the California Department of Education.

For years, teachers, school administrators and members of bilingual education associations have tried to free California's English learners from being tested in English. But after voters approved Proposition 227 in 1998, requiring that most classes be taught in English, a barrage of lawsuits failed to convince the courts that native-language instruction or testing was necessary.

This new lawsuit, however, rests on a provision in the No Child Left Behind law that says English learners must be tested "in a valid and reliable manner." It also says the students should be given "reasonable accommodations" that include "to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do."

That portion of the No Child Left Behind law has given advocates new hope. Fourteen other states, including New York, follow that provision, the suit says.

"California is deliberately violating federal law," said attorney Marc Coleman, who heads one of three Southern California law firms representing the districts.

Susan Aspey, a spokeswoman for the U.S. Department of Education, said the law "does not require that students be tested in their native language." She said a recent compliance review found no major problems with how the state tests English learners.

Even so, the districts believe they are on solid ground in demanding two significant changes to the state's testing program.

First, the suit demands a state test in Spanish and other languages to determine which schools and districts meet the federal academic targets.

Second, the districts also want a more simply worded English version of the exam that would be taken by most English learners.

As an example, attorney Coleman said that a sample test question -- "What are other animals that perish in captivity?" -- could be rewritten as "What other animals die in captivity?"

The districts say the state's refusal to administer more appropriate tests for English learners puts too many schools at risk for sanctions, forcing them to "misdirect resources" and create "unwise educational programs" to meet federal academic targets.

Although Hayward met its federal targets as a district, many of its individual schools did not. Sanctions apply only to schools that accept federal Title 1 money earmarked for poor children. In Hayward, 17 schools accept such money -- and 10 of them failed to meet the targets.

State education officials call such schools "underperforming," not "failures," and require them to get help from a state assistance program that provides extra teacher training and student tutoring, among other things. Failure to improve student scores and exit the assistance program in five years triggers sanctions, such as a state takeover.

The lawsuit claims that families flee such "failing" schools and districts, which in turn means less per-pupil funding for those schools.

The other districts filing suit are Chula Vista, Alisal Union, Terra Bella Union, Pajaro Valley, Oxnard, Hawthorne, Sweetwater Union and Salinas Union, as well as bilingual education associations.

nasimov@sfchronicle.com.

— Nanette Asimov
San Francisco Chronicle
http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/06/02/BAGDBD1Q7N40.DTL


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