ORI GIN AL PA PER

NCLB and California’s English language learners:The perfect storm

Patricia Gandara Æ Gabriel Baca

Received: 30 November 2007 / Accepted: 2 June 2008 / Published online: 20 August 2008

� Springer Science+Business Media B.V. 2008

Abstract We argue here that the combination of U.S. federal education policy as

embodied in the No Child Left Behind Act of 2001 with the passage of a California

state initiative that required that ‘‘nearly all classroom instruction [be] in English …for a period not normally intended to exceed one year’’ in 1998 created a ‘‘perfect

storm’’ for English Learners. English Learners are thus provided inadequate and

incomprehensible academic instruction. Federal law, meanwhile, requires that all

students, even if they do not speak English, be tested annually in English for

academic progress, and their schools be sanctioned if progress is not sufficient.

Whether such demands can legitimately be made on schools is an unsettled issue

across the United States. California’s case should serve as an example to others that

forcing students to be assessed in a language they do not fully comprehend violates

principles of social justice wherever it is practiced.

Keywords Assessment � Bilingual education � NCLB � English Learners �English language learners � Proposition 227

Education policy in the United States is highly decentralized to the individual states.

Prior to the passage of No Child Left Behind in 2001, federal involvement in k-12

education had been largely limited to funding new initiatives such as vocational

education or bilingual education and in assisting the states in areas where there were

large concentrations of poor children. However, the passage of NCLB marked a new

era in federal involvement in U.S. schools, and dramatic consequences have

resulted. We argue here that the combination of NCLB with the passage of a state

initiative to severely limit the use of primary language for instructional purposes

(Proposition 227) in California in 1998 created a toxic environment for English

P. Gandara (&) � G. Baca

University of California, Los Angeles, CA, USA

e-mail: gandara@gseis.ucla.edu

123

Lang Policy (2008) 7:201–216

DOI 10.1007/s10993-008-9097-4

Learners (EL) that resulted in a legal challenge brought by nine school districts in

the state. The Coachella Case, named for the lead plaintiff, Coachella Valley

Unified School District, is the ‘‘perfect storm’’ of federal (explicit) policy

encountering state (implicit) policy, with disastrous local consequences. State

restrictive language policy, making it illegal to use students’ primary language for

instruction is incompatible with federal assessment policy, which requires all

students to be tested annually, whether or not they speak English.

In this article we examine the case of a group of small school districts with very

high percentages of ELs attempting to literally survive in the face of a convergence

of federal and state policies that have labeled the districts as educational failures and

threatened to take them over. Their ‘‘failing’’ is that their ELs cannot pass

standardized tests that are administered in a language that they do not understand.

Federal policy, which on its face, appears to be sensitive to issues of ELs, in fact

creates the conditions that exacerbate bad state policy by forcing the school districts

to test them in English, even though by definition they do not have sufficient

command of the language to be tested in it. The state, having passed a law that in

most cases forbids the use of the primary language for instruction, willfully ignores

federal policy that recommends that ELs be assessed in their primary language, at

least in the first three years. The federal government, perhaps having reluctantly

included these protections for ELs in the law, refuses to confront the largest state,

with 30% of all ELs in the country. And so, the districts are blamed for educational

failure caused by policies over which they have no control. The lessons of this case

are applicable broadly to schools that must negotiate conflicting language education

policies set by competing governmental entities, policymaking authorities, or

education leaders who subscribe to different language ideologies. The lead authors

of this paper participated actively in developing the case for the plaintiff districts,

and analyzed the data and arguments brought to the court.

California turns to English only under Proposition 227

In 1998, California voters approved a voter initiative entitled ‘‘English for the

Children’’ otherwise known as Proposition 227, that would come to have far-

reaching effects on education in that state. The law that resulted from the initiative’s

passage required that ‘‘nearly all classroom instruction [be] in English. … for a

period not normally intended to exceed one year.’’1 The impetus behind this voter

initiative was the deplorable state of EL achievement. The preamble of the voter

initiative includes the following language: The public schools of Californiacurrently do a poor job of educating immigrant children, wasting financialresources on costly experimental language programs whose failure over the pasttwo decades is demonstrated by the current high drop-out rates and low Englishliteracy levels of many immigrant children.2 There is little argument that ELs trail

1 Preamble to California Proposition 227 of 1998, available at: http://primary98.sos.ca.gov/VoterGuide/

Propositions/227text.htm.2 Ibid.

202 P. Gandara, G. Baca

123

behind virtually all other students on all measures of student achievement. For

example, in 2007, nearly three times as many sixth grade ELs scored Below Basic

in English Language Arts as did English Speakers—57% vs. 20%. Math scores

were not significantly different. More than half (54%) of ELs scored Below Basic

in the sixth grade compared to 24% of English speakers. The reason for these

huge achievement gaps is arguable and complex, but there is little consensus that

‘‘experimental language programs’’ (aka bilingual education) were either the

source of the problem or particularly costly (Gandara et al. 2003).3 Prior to the

passage of Proposition 227, only 29% of ELs in California were enrolled in a

bilingual class (Gandara 2000), so it was not likely that bilingual education was

the source of underachievement for the great majority of EL students. Moreover,

existing research on the cost of educating ELs in different program models

concludes that bilingual instruction offered by a bilingual teacher is among the

least costly program alternatives.4 Nonetheless, the promise that if Proposition 227

passed, ELs would rapidly acquire a command of English—normally within one

year—and then quickly be mainstreamed into regular classes where they would

flourish had great intuitive appeal to voters. The measure passed with 61% of the

vote.

Because a very high percentage—more than 25%—of students in California

are ELs (California Department of Education 2007), any policy that affects

these students inevitably has an impact on the entire state education system.

Efforts at raising achievement levels for California’s students, who currently

rank among the bottom in the nation,5 are held hostage to the fates of ELs.

Given that they represent such a large, and growing,6 percentage of the student

population and that they so persistently score at the lowest levels, California

will not see a significant increase in state-wide student achievement until the

needs of ELs are addressed. It is estimated that today about 80% of teachers in

the state have ELs in their classrooms (Center for the Future of Teaching and

Learning 2005). Thus, the great majority of California’s teachers, too, are

affected by policies that target ELs.

3 This statement was in response to the Williams v the State of California case distilled data on ELs and

all other students that demonstrated seven areas in which EL students received a demonstrably inferior

education, even when compared with other poor children. They argue that these factors were likely more

related to the underachievement of EL students than any particular program design.4 Studies of the cost of bilingual education compared to other program alternatives generally find that

bilingual education when provided by a bilingual teacher is among the most cost effective strategies for

educating English Learners. This is because the bilingual teacher is able to provide all of the instruction

for his or her students, while other models generally rely on adjunct personnel (e.g., resource teachers,

special bilingual aides) to assist with instruction. See Parrish et al. (2006), Huffman and Samulon (1981).5 Scores in fourth grade reading and mathematics in 2007 on The National Assessment of Educational

Progress (NAEP) also known as ‘‘The Nation’s Report Card,’’ show that only three states (Alabama,

Mississippi, and Louisiana) and the District of Columbia score as low or lower than California. Available

at: http://nces.ed.gov/nationsreportcard/nde/statecomp/sortingSingleYear.asp6 More than half of the kindergarten students entering California schools in 2007 were ELs. See

http://www.cde.ca.gov/language census.

NCLB and California’s English language learners: The perfect storm 203

123

Teachers struggle to meet EL students’ needs

One major impact of the passage of Proposition 227 was the rapid assignment of EL

students to mainstream classrooms, normally after only one year in a special setting,

where teachers with little training or experience with ELs were charged with

instructing them. In the aftermath of the state’s shift to English only instruction,

several studies reported that many teachers without specialized training or the skills to

communicate with their students or their parents were frustrated with their inability to

meet the needs of these students (Gutierrez et al. 2000; Gandara and Maxwell-Jolly

2005). Moreover, teachers who did have experience and training—bilingually

certified teachers—were threatened with lawsuits if they used the skills they had

acquired. Immediately after the passage of Proposition 227, California’s teachers’

union sued the state to invalidate the law because it allowed parents to file a lawsuit

against a teacher for using a child’s primary language for instructional purposes. The

union contended that the law was vague and that it failed to provide firm guidelines

about what was meant by instruction occurring ‘‘overwhelmingly’’ in English. They

argued that the law created anxiety in teachers about what amount of primary language

was permissible. The plaintiffs also showed how the dictum to teach overwhelmingly

in English was interpreted radically differently in different districts. Nonetheless, the

district court found that the language was not excessively vague and basically used the

Supreme Court’s logic about pornography: ‘‘It may be difficult to define, but I know it

when I see it.’’7

Perhaps the most consistent finding of studies of the impact of Proposition 227

was the confusion and uneven implementation that occurred in its aftermath.8

Proposition 227 made clear that schools should curtail bilingual instruction to the

maximum extent possible, but it was very unclear about what teachers should do

instead. It was anyone’s guess what ‘‘Structured English Immersion’’ was supposed

to look like since no formal definition was offered, only the following language was

included in the law: Structured English Immersion: an English language acquisitionprocess for young children in which nearly all classroom instruction is in English butwith the curriculum and presentation designed for children who are learning thelanguage (Proposition 227). As such, schools did a lot of different things, and many

just did the same thing they were doing before the passage of Proposition 227. The

common thread, though, was that from classroom to classroom, and from school to

school teachers and principals were making their own judgments about what the law

intended.

Enter NCLB 2002

Low achievement by EL students, confused and frustrated educators, and lack of a

consistent curriculum was the situation in California in 2002 when No Child Left

7 In the case Jacobellis v. Ohio, 378 U.S. 184 (1964), Justice Potter Stewart declined to define

pornography with this now famous phrase.8 See, for example, Gutierrez et al. (2000), Maxwell-Jolly (2000), Garcia and Curry-Rodriguez (2000).

204 P. Gandara, G. Baca

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Behind, the most recent reauthorization of the Elementary and Secondary EducationAct, came into effect. While NCLB was controversial from the beginning, because it

asserted unprecedented (and some argued unconstitutional) authority over education

in the states, it was not until it began to be fully implemented at the state level that

the problems it would create for ELs would become clear. One little observed fact,

however, set the stage for the upcoming battles. NCLB was the instrument that, after

decades of incursions on the original Bilingual Education Act of 1968, finally

removed all references within the Department of Education to Bilingual Education.

The office of Bilingual Education and Minority Languages Affairs (OBEMLA)

became under NCLB, the Office of English Language Acquisition, Language

Enhancement and Academic Achievement for Limited English Proficient Students,

popularly known as OELA. While this happened with little fanfare, and seemingly

little immediate impact, in fact, the negation of the language of bilingualism set a

tone that we argue has undermined protections for these students and reinforced

misguided policies in California and elsewhere.

The Impact of NCLB on EL teachers

A recent survey of 5300 educators (Gandara et al. 2006) conducted in California

revealed that most teachers, even those who ostensibly have taken coursework and

professional development workshops designed to impart skills to meet the needs of

EL students, report they do not feel prepared to teach them. In many ways, this is

hardly surprising as there is no consensus in the field about what critical

competencies teachers must have to be effective with ELs (see Adger et al. 2002).

And even while NCLB requires that all schools have teachers who have met the

criteria for being ‘‘highly qualified,’’ there is no mention in the law about the

qualifications necessary to teach EL students. NCLB is silent on the qualifications

for being a ‘‘highly qualified’’ teacher of students who do not speak English.

Moreover, there is little attention given to providing skills for the great majority of

California teachers who are now expected to have one or more EL students in their

classes (Center for the Future of Teaching and Learning 2005). Data show that the

typical teacher of EL students in California receives no more than two hours of

professional development on how to teach EL students over a three year period, and

that even this is of uneven quality (see Gandara et al. 2003). If EL students are going

to be rapidly mainstreamed, as is happening under Proposition 227, the teachers to

whom they are assigned must be prepared to meet their needs.

NCLB is not without its merits. As many have noted, because it required the

disaggregation of student achievement data by subgroup, including ELs, it brought

much needed attention to the plight of these students and shone a spotlight on their

serious underachievement. Heretofore, schools could ignore these students if the

school’s overall performance was satisfactory. No more. But it has also had some

profoundly negative effects on ELs, not just because of flawed policy, but because

of things it either does not say or does not enforce. And, the law’s impact has been

magnified substantially by its confluence with Proposition 227.

NCLB and California’s English language learners: The perfect storm 205

123

Critics of the reauthorization of NCLB have appeared from both ends of the

political spectrum. Conservatives have argued that the law is too prescriptive and

infringes on states’ rights; they assert that the federal government has no business

meddling in state education policies. Progressives argue that the law hurts those

students most that it ostensibly sought to help because of unreasonable demands,

inadequate resources to meet those demands, and sanctions that demoralize school

personnel who are working hard to improve outcomes for students. A key way in

which many educators argue that low- income students have been harmed by NCLB

is in the forced narrowing of curriculum to meet the rigid testing standards of the

law (see Wright and Choi 2006 for a discussion of the impact of the law on

curriculum narrowing).

A complex formula of adequate yearly progress (AYP) must be achieved by each

subgroup of each school in order to remain in good standing with the law and all

children must be proficient in language arts, math, and science by 2014. Both of

those goals are clearly impossible for all children. As Diane Ravitch, former U.S.

Assistant Secretary of Education, points out in a recent Op-Ed piece in the New

York Times: ‘‘this has never been accomplished by any nation, state, or school

district’’ and in her words is an ‘‘absurd goal’’ (Ravitch 2007). Yet, to avoid

sanctions and ultimately having their schools dismantled and losing their jobs, many

teachers have resorted to focusing almost exclusively on preparing students to take

the tests (Berliner and Nichols 2007).9 As a result, California’s EL students have

been subjected to an extraordinary narrowing of the curriculum because of the

challenges presented by their lack of English proficiency. To the extent that this is

occurring disproportionately to ELs, it raises state constitutional questions about

equitable access to the curriculum and certainly runs the risk of alienating these

students from school as much of what they find engaging and interesting in school is

stripped away in favor of test preparation.

NCLB and Proposition 227: The perfect storm

All of the foregoing would be bad enough if students were at least assessed in a

valid and reliable manner to test whether such extreme measures were actually

working to increase their achievement. However, California, in a post-Proposition

227 era, has chosen to implement an English only testing regimen, although this is

not required, or even recommended, under NCLB, nor ironically, even under

Proposition 227. Proposition 227 is silent on issues of assessment. The exclusive use

9 In a recent study, Gandara and Rumberger (forthcoming) conducted of resource needs for ELs in

California, principals and teachers in schools that were exceeding the norm for the state with respect to

EL scores told us that they had focused their energies and their time on preparing for the tests, and this

necessarily meant that some other things could not be covered; McMurrer 2007, reports that in a sample

of approximately 350 districts nationwide, 44% noted that they had to cut time from Science, Social

Studies, Art, Music, Physical Education and other areas to increase time in English and Math as a result of

NCLB.

206 P. Gandara, G. Baca

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of English to test students for state and federal NCLB accountability has had a

negative impact on the remaining bilingual programs that operate at the request of

parents (Zehr 2007). The theory behind bilingual instruction is that students will

acquire academic English more slowly initially but that academic learning will

proceed apace of English speaking peers, and the data bear this out (Goldenberg

2006). In fact, the research on primary language instruction, through well-

implemented bilingual or dual language programs, now has achieved consensus that

long term outcomes for these students are often superior to those for English only

instructed pupils (see Goldenberg 2006, for a discussion of this research).

Nonetheless, English only testing policy places these programs at risk because

students are not initially able to compete in English with their English only peers.

The appearance of lower scores in the first years of instruction invites sanctions for

not making sufficient yearly progress, even though research has established that this

is the normal pattern, later to be followed by an upturn in scores (see, for example,

Ramirez 1992; Genesee et al. 2006). No leeway is given to these programs and, as a

result, teachers often feel pressure to shift to English only in order to produce better

test scores in English in the early years. Data show that these gains are often short

lived, and students begin to falter as the English curriculum becomes more

cognitively demanding in upper grades (Gandara et al. 2003).

The emphasis on English only testing has also had a particularly pernicious

impact on secondary students—the fastest growing portion of the EL population.

The particular circumstances of these students have been ignored by the state in

using an exit exam developed for English speakers that bars many EL students from

receiving a diploma even when they have taken and passed all classes required for

graduation. For example, Rogers, Holme and Silver (Rogers et al. 2006) found that,

with the exception of special education students, ELs were more likely to fail the

California High School Exit Exam (CAHSEE) than all other subgroups. In fact, for

the class of 2006, approximately 40% of ELs had failed each test, math and

language arts. Since both parts of the exam must be passed to qualify for the

diploma, an exceptionally high percentage of ELs who had continued their

education through 12th grade were not eligible to graduate with their class in

2006.10 While NCLB does not require the state to use an exit exam as its measure of

achievement in high school, or to use one that is in English only, the fact that it

permits this practice to continue, places secondary ELs at high risk for not receiving

a diploma. Little is known about students who do not pass the CAHSEE, although

the state has been compelled to provide tutoring for two years beyond 12th grade to

help these students acquire a diploma. Unfortunately, the state data system does not

allow it to actually track these students over time. A recent report, however,

suggests that the state policy to require every student to take and pass an exit exam

10 Because the state does not report data by individual student, it is not possible to know what the overlap

was between failing both math and language arts, versus simply failing one test. Thus the percent of EL

students statewide who were not eligible for a diploma based on failure to pass the CAHSEE would range

between 40% and 79%.

NCLB and California’s English language learners: The perfect storm 207

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in English only exacerbates the already high dropout rate among secondary EL

students.11

What is less often mentioned in these debates is that NCLB actually contains

language that can and should protect many ELs, if it were taken seriously and if

there were actually an attempt to enforce these provisions. The language in Title I

directs the states to use tests that are valid and reliable for EL students. ‘‘… [T]he

inclusion of limited English proficient students, who shall be assessed in a valid and

reliable manner and provided reasonable accommodations on assessments admin-

istered, and … to the extent practicable assessments in the language and form most

likely to yield accurate data on what students know and can do in academic content

areas …’’

Title I only requires that EL students be tested in English for reading and

language arts in the case of ‘‘any student who has attended school in the UnitedStates (not including Puerto Rico) for three or more consecutive school years,

except that if the local educational agency determines, on a case-by-case basis that

academic assessments in another language or form would likely yield more accurate

and reliable information on what such students know and can do, the local

educational agency may make a determination to assess such students in the

appropriate language other than English for a period that does not exceed twoadditional consecutive years…’’ [Emphasis added]. There is no mention in NCLB

about testing students’ knowledge of math, science, or anything else in English. And

several states have allowed students to test in these subjects in their primary

language.12

And yet, California assesses all of its EL students in English only, whether they

are in bilingual programs, have been educated in another language outside the

country, or only speak a non-English language and provides no systematic

accommodations for these students. A recent survey of districts found that only

three percent of students are actually provided with accommodations, and most

accommodations provided to EL students are not of a kind that have been shown to

have any particular impact on their ability to perform in a test they do not fully

understand (Coachella Valley Unified School District et al. v. State of California,Arnold Schwarzenegger et al). In fact, a Memorandum of the State Board of

Education, dated September 25, 2002 noted that:

‘‘The federal legislation suggests that in order for states to accomplish receiving

valid and reliable scores and accurately measuring ELs academic achievement,

states should provide an alternative system of standards-based assessments in each

student’s primary language, insofar as is practical’’ (Supplemental Memorandum of

the State Board of Education 2002).

In a ‘‘Last Minute Memorandum’’ of the State Board of Education dated October

8, 2002 (State of California 2002), it was reported that ‘‘the Expert Panel

11 See HUMRRO (2007), 8th Independent Evaluation of the CAHSEE. HUMRRO is an independent,

non-profit organization that conducts research to improve individual, team and organizational

performance.12 There are currently nine states that offer testing of academic content in a language other than English

and whose scores are used in calculating AYP: Delaware, New Mexico, New York, Oregon, Colorado,

Kansas, Texas, Pennsylvania and Ohio.

208 P. Gandara, G. Baca

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[State Board of Education and California Department of Education representatives]

reviewed testing policies in other states with significant EL populations. … From

the outset of the discussion, however, panel members noted that the policy

environment in California was different from other states. … In this policy context,

creating primary language tests could send conflicting signals to the education

system.’’ Thus, the response of the state to NCLB’s requirement of valid and

reliable tests was to allow EL students (1) to be tested in a separate room; (2) take

breaks between sections of a test; (3) be provided extra time; and (4) use

glossaries.13 Even so, allowing these accommodations is different from requiring

them, and so it was not surprising that so few EL students were provided anyaccommodation at all.

State policy was being constructed in an environment of ‘‘English only’’, which

was strongly supported by the State Board of Education. Although the assessment

policy they devised went counter to NCLB requirements, and nothing in state law or

regulation required the state or the districts to test students in English only, the

Board had chosen to use the passage of Proposition 227 as a rationale for an

assessment policy that they knew would push the state further down the road toward

eradication of primary language programs and toward more rapid transition to

English. When students are tested in English only, and thus risk causing their

schools to be labeled as failures if they do not do well, then schools often believe

they cannot afford to continue their bilingual programs, which can initially delay the

acquisition of English. NCLB provisions notwithstanding, California has been given

the green light to continue the practice of English only testing by the federal

Department of Education, which has done nothing to enforce its own law.

Districts rise up

In June 2005, nine school districts in California, and three state-wide non-profit

organizations, including the California Association for Bilingual Education;

Californian’s Together, a statewide coalition of parents, teachers, education

advocates and civil rights organizations; and California LULAC, a state affiliate

of the National League of United Latin American Citizens, an Hispanic civil rights

organization, banded together under the lead district, Coachella, to sue the state of

California for failing to comply with the provisions of NCLB, even though the

federal government does not enforce them. Seven of the districts, including

Coachella, were already identified as Program Improvement, and the others fully

expected to fall into this category shortly, as they averaged more than two-thirds of

their students as ELs. Given that these students by definition do not have a mastery

of the language of the test, it is—as state officials have been quoted as conceding—

impossible for these students to achieve mastery on tests in English only. Therefore

13 It is important to note that no research has ever shown that English Learners are able to perform better

on a test that is unintelligible to them by placing them in a separate room or giving them breaks between

testing sessions. Additional time may, under some circumstances, aid in taking a test, but this would

appear to depend on the level of understanding of English that the student has, and does not raise scores

dramatically. See Abedi et al. (2003, 2005).

NCLB and California’s English language learners: The perfect storm 209

123

the districts were in a no-win situation: receive sanctions from the state and federal

government for not testing these students, or receive sanctions because the students

could not make adequate yearly progress on a test they could not understand. They

had nothing to lose, except the costs of going to court. And since ultimately their

schools could be dismantled and their staffs let go, they really had no choice but to

pursue a just resolution to the dilemma in which they found themselves. They were

at the center of the perfect storm: a State Board of Education that not only supported

the letter of the law in Proposition 227, but chose to go well beyond it, and the

testing requirements of NCLB that forced the state to assess all students, and

provided no relief for students who did not understand the language of the tests.

Why Coachella?

Taking on the leadership for a lawsuit against the state must be an act of ultimate

frustration, as it invites criticism of the district and its leadership by the state and

uses critical human and fiscal resources. Why would Coachella Valley Unified

School District undertake to tilt at windmills in this way? The district is nestled in

the Eastern part of the Coachella Valley, 25 miles southeast of Palm Springs, 72

miles east of Riverside, 130 miles east of Los Angeles and approximately 90 miles

northwest of the Mexico-U.S. border. The district encompasses 1,200 square miles

of rural farmland and desert. While the neighboring residential areas of the city of

Coachella are largely rural and agricultural, producing some of California’s largest

crops, the city of Coachella itself is experiencing an economic boom bringing

increasing numbers of people and businesses to an already thriving economy.14

With over 900 employees, CVUSD is one of the largest employers in the

incorporated cities which it surrounds, serving approximately 17,500 students, 97%

of whom are Hispanic or Latino and 91% of whom are on free or reduced lunch.

ELs and students who speak other languages beside English at home comprise 83%

of the total student population. Approximately 91% of the schools are in ‘‘Program

Improvement,’’ 80% are experiencing corrective action or restructuring efforts that

include curricular changes and appointing outside experts. Importantly, the district

leadership and governing board have made a direct and conscious effort to offer

instructional programs in the primary language to students that are not proficient in

English through primary language maintenance, developmental and dual immersion

programs. This has obviously created a great deal of contention. Many local

educators feel compelled, on the one hand, to include the students’ primary

language in instruction based on their own experience and reading of the research,

while on the other hand, they feel tremendous pressure to rapidly mainstream ELs

because they are being held to account for results on tests written in English. Clearly

the district’s adherence to more liberal primary language instructional policies

places them out of alignment with most of the state and invites criticism that this is

why they are struggling to meet testing standards. It is difficult to dismiss the idea

14 The economy is expanding beyond that of large-scale agri-business to include landscaping,

construction, domestic assistance, retail and service-related jobs and various social service industries.

210 P. Gandara, G. Baca

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that the State Department of Education might take a particular interest in defending

itself against such a rogue district.

The Superintendent of CVUSD has questioned the logic behind what he

considers flawed policy and has challenged the assumptions embedded in existing

state policies that are supposedly aimed at creating a meaningful system of

accountability. He has argued that if policymakers are going to place greater

responsibility on local educators by threatening to label them as ‘‘educational

failures’’ then they should provide tests that are sensitive to the language needs of

ELs, more resources to support students’ learning, and allow districts greater

authority and control over educational practices (Interview with Mr. Foch ‘‘Tut’’

Pensis, Superintendent of Coachella Valley Unified School District on 7th

November). And there is merit to these assertions. Policymakers are banking on

the notion that by requiring the results of assessments to be reported, school

communities and parents will have access to important pieces of information about

how well the schools and students in their neighborhoods are performing over time

and pressure their schools to respond to this information with improved practice

(Public Education Network 2003). However, it is difficult for stakeholders to

remedy deficiencies and ensure that ELs are afforded equal educational opportu-

nities when the information that they receive from test scores solely in English does

not necessarily reflect what students know or have learned. In their efforts to correct

shortcomings, local schools and districts invest large amounts of taxpayer dollars in

programs and services that may not be helping in any significant way. And this is

evident in Coachella as well, where outside agencies and consultants have been

hired to perform miracles when in fact test data yield little reliable information

about where the problems actually lie. Lack of meaningful data on what students

know and can do does exacerbate existing tensions and does nothing to better

inform educators on how best to address students’ needs.

Coachella et al. argued that California’s English only testing of ELs is not valid

and reliable and as a result of its implementation not only has California acted in an

arbitrary and capricious manner but, as a result of its testing practices it has

facilitated the misappropriation of taxpayer funds in direct violation of existing state

statutes. Thus, the objective of the lawsuit was to compel the state of CA to assess

the academic progress of its ELs as required by the mandate of NCLB: in a validand reliable manner that included (a) reasonable accommodations; and (b) to theextent practicable, assessments in the language and form most likely to yieldaccurate data on what students know and can do in academic content areas, untilsuch students have achieved English language proficiency. The plaintiffs argued

that it was not unreasonable for California to test in the primary language where

appropriate, at least for Spanish speakers, since other states with fewer ELs are

being tested in other languages and since California has a history of using a

statewide assessment in Spanish for diagnostic and placement purposes and has a

standards-based equivalent Spanish version developed up to high school. Although

the defendants argued that it would be too costly, this was obviously not at issue

since the state had already developed much of the test. Nor, despite claims to the

contrary, was the lack of appropriate technology. The fact that the state cannot test

every EL in his or her primary language, an argument furthered by the defendants to

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make the case for testing none in primary language, was refuted by the person who

chaired the technical advisory committee for the development of the state standards’

tests. Professor Haertel of Stanford noted the apparent absurdity of allowing the

great majority of the states’ ELs to be tested on a test that was clearly invalid

because the state could not serve every student in the same way (Declaration of

Edward Haertel in Support of Plaintiff’s Motion for Issuance of Writ of Mandate, in

Coachella Valley Unified School District et al. v. State of California, ArnoldSchwarzenegger et al., April 23, 2007).

All students—including many English speakers—could benefit from reduced

linguistic complexity and the great majority of students instructed in a language

other than English (Spanish) could be tested more meaningfully (see Abedi and

Gandara 2006). The state’s position on this demand was interesting. On the one

hand, in the September 25th Memorandum, the State Board of Education appeared

to dismiss the research on the effects of reduced linguistic complexity by noting that

‘‘ the contractor’s Content Review Panels routinely examine test questions to ensure

that items are worded as simply as possible’’ (September 25th Memorandam of

State Board Members, pages CDE 1701). Later, the state attempted to defend itself

on this issue by contending that ‘‘simplification’’ of the test items would render them

too easy and therefore provide an unfair advantage to the EL students. The use of

the term ‘‘simplification’’ obfuscated the actual intent of the plaintiffs and the

research on which that demand was based. Reducing linguistic complexity—

removing unnecessary wordiness and replacing misleading language with more

direct language—has nothing to do with ‘‘simplification’’ of the test, and as the

research has shown, results in a more valid test for all students (see, for example,

Abedi et al. 2003, 2005). Moreover, the content review panels are generally

composed primarily of curriculum experts, not specialists in psychometrics (see

Educational Testing Service 2004).

The plaintiffs further argued that California is in direct violation of its

constitutional guarantee that California school children receive equitable educa-

tional opportunities. In their constitutional claims the plaintiffs assert the following:

(a) that all students have a fundamental right to equal educational opportunitiesunder the California constitution; (b) that California’s testing and accountabilitysystem discriminates against certain groups of children, namely ELs and childrenwho attend schools with high percentages of ELs; (c) that the testing and theconsequences of such testing deny these children equal educational opportunities;

(d) and that as a consequence English Learners are disadvantaged academicallyamounting to a constitutional deprivation (Coachella Valley USD et al. v. State ofCalifornia et al., SF Superior Court Case No. 505334).

Notwithstanding all of these arguments, in June of 2007 Judge Kramer of the

Superior Court in San Francisco handed down a preliminary decision, finding that

he did not have authority to over-rule the judgment of the State Department of

Education and left the current regulations standing. However, all districts have

voted to appeal the decision and so the ultimate disposition of this case is not yet

known. The decision will have important implications for the assessment of EL

students not only in California, but beyond. The remedies that the suit seeks are the

use of primary language tests where appropriate for purposes of accountability

212 P. Gandara, G. Baca

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measurement and the use of accommodations, in particular, reduced linguistic

complexity of the tests, for all EL students. Of course, other alternatives to current

testing practice, such as use of such portfolio assessment as suggested by the state’s

own evaluator for the high school exit exam, could and should be considered if the

courts ultimately decide in Coachella et al.’s favor.

Because California educates one-third of all the nation’s EL students, the stakes

are high for this case. Many of the nation’s EL students would be directly affected,

and many more could feel the effects indirectly, as other states and locales would no

doubt use the ruling to bolster their own cases. In the last year, school districts in

Northern Virginia attempted unsuccessfully to replace their English only standard-

ized assessment of English Language Arts with a test of growth in English

proficiency, and Illinois was told to stop using its IMAGE test, which was designed

to assess ELs’ growth in math and reading using items with reduced linguistic

complexity. Both expressed frustration and deep concern for the welfare of their

ELs as a result of having to adhere to a testing regimen that they argued made no

sense. Fairfax County Superintendent of Schools Jack Dale was quoted as saying,

‘‘What we have been telling the nation and the federal government is that children

who are not yet competent in English are not going to pass a reading test [in

English]’’ (see Glod and Chandler 2007; Banchero 2007). If the provisions in NCLB

allow us to re-examine what constitutes valid and reliable assessment, it will have

provided a real service. On the other hand, NCLB has also created the conditions

under which such testing has become so onerous.

As the reauthorization of NCLB approaches, the case of California highlights

some of the very real shortcomings of the current law as it affects EL students. Any

effort to improve the accountability system of NCLB with respect to EL students

should first begin with the rationale for testing these students at all: ostensibly the

purpose is to provide information about their needs so that schools can address those

needs and raise their achievement to at least adequate levels. Of course, this

rationale also assumes that schools will have, and apply, the resources needed to

truly respond to these students’ needs once they are identified. States, like

California, that have adopted English only policies need to rethink their usefulness

in the context of the extant research and the real challenges that EL students face.

Certainly, one effect of NCLB test requirements is to lay bare the reality that

students do not achieve academic proficiency in English in one year, or even two or

three, as this kind of language policy asserts, and that to test them in English at these

early stages of second language acquisition is unfair to both the students and the

system. If California and other states and districts are not willing to rethink their

language instructional practices, in fairness they must at least rethink their

assessment policies because high-stakes testing in a language that students do not

understand serves no one’s interest.

Importantly, the California case holds lessons for other states and nations that

grapple with issues of accountability and equity, especially as they affect students

who lack proficiency in the language of instruction. There is general consensus that

it was important to include ELs in the accountability framework of NCLB. The

spotlight that was shone on the under-achievement of EL students was an important

impetus to focus more attention on their educational needs, and some good may still

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come from this. However, it is clearly inappropriate to place high stakes on the

outcomes of a test that students do not fully comprehend. Language policies in

many other states and nations are more enlightened than those practiced in

California, but the assessment of students whose best or only language is not that of

the tests they are given is not an area in which there has been a great deal of

attention internationally. It is also an unsettled issue across the United States.

California’s case should serve as an example to others that forcing students to be

assessed in a language they do not fully comprehend violates principles of social

justice wherever it is practiced. Hopefully U.S. courts will ultimately affirm this as

the case is heard on appeal.

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Author Biographies

Patricia Gandara is Professor of Education in the Graduate School of Education at UCLA where she is

Co-Director of the Civil Rights Project/Proyecto Derechos Civiles and Associate Director of the UC

Linguistic Minority Research Institute. She received her PhD in Educational Psychology from the

NCLB and California’s English language learners: The perfect storm 215

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University of California Los Angeles. Professor Gandara’s research focuses on language policy, access to

equitable education for underrepresented students, and the education of Latino youth. She is the author of

numerous articles and several books, including the forthcoming, The Latino Education Crisis. TheConsequences of Failed Social Policies, with Harvard University Press. Other recent publications

include: Gandara, P., & Rumberger, R. Defining an adequate education for English learners. EducationFinance and Policy, 3, 130–148; Gandara, P., & Gomez, M. Cecilia (forthcoming). Language policy ineducation. In B. Schneider, G. Sykes, & D. Plank (Eds.), AERA handbook on educational policy research.

Washington DC: AERA; Gandara, P., & Rumberger, R. (in press). Immigration, language, and education:

How does language policy structure opportunity? Teachers College Record.

Gabriel Baca is a doctoral candidate in Urban Schooling at the Graduate School of Education and

Information Studies at the University of California, Los Angeles. He holds a BA in Political Science and

Latin American Studies from the University of California, at Berkeley and an MEd in School Leadership

from Harvard University. He is a long time resident and former k-12 educator of the community of

Coachella, California. His research interests include: the politics of education, language policy and

implementation, equity school reform and notions of public power and social activism to enact social,

political and educational change. His doctoral dissertation uses a blended conceptual framework, which

draws from studies of equity reform in education, scholarship on education organizing and social

movement theory to examine how activist groups leverage power for advancing equity-focused education

policy for English learners within the context of market-based education accountability and restrictive

language policies.

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