                               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




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