(San Francisco City and County Super. Ct. No. CPF-05-505334) Trial Judge: Hon. Richard A. Kramer.
The opinion of the court was delivered by: Reardon, J.
CERTIFIED FOR PUBLICATION
California participates in the federal No Child Left Behind Act of 2001 (NCLBA) (20 U.S.C. § 6301 et seq.) and includes in its assessment program for purposes of NCLBA accountability most of the nearly 1.6 million students attending public schools in this state who are classified as "limited English proficient [LEP]" or "English learners."*fn1
California tests all its students in English, although school districts are obliged to provide LEP students certain accommodations or testing variations if the same are regularly used in the classroom or for assessment. Appellants-nine school districts*fn2 receiving funds under the NCLBA-are seeking a writ of mandate requiring respondents to abide by the law's requisites for assessing LEP students. They are certain that the NCLBA sets forth ministerial duties capable of enforcement by a writ of mandate, and respondents did not observe these duties. Specifically, they claim that because California tests LEP students in English for purposes of NCLBA accountability, the tests are not "valid and reliable" for these students as required by the federal legislation. Additionally, the School Districts argue that the trial court was wrong in deciding as a matter of law that the LEP assessment program which the State Board adopted did not constitute an abuse of discretion.
As we explain, the School Districts' premise that the purpose of California's LEP testing regime is at odds and incompatible on its face with the NCLBA is incorrect. Moreover, the federal law affords participating states considerable discretion in fashioning an assessment program for their LEP students. To this end, the State Board exercised its quasi-legislative powers in adopting the testing policy and program that it did. Our standard for reviewing this action is exceedingly deferential, as contrasted with the independent judgment standard which the School Districts hope we will employ. Finally, we are convinced that the State Board did not abuse its discretion as a matter of law in rendering these key policy decisions, and accordingly affirm the judgment.
Signed into law in January 2002, the NCLBA significantly amended the Elementary and Secondary Education Act of 1965,*fn3 which historically provided federal educational grants to the states under its title I provisions. The NCLBA continues as a federal funding statute with the overarching purpose of ensuring "that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments." (20 U.S.C. § 6301, fn. omitted.) Academic accountability is the cornerstone of the act, as it strives to ensure that "high-quality academic assessments, accountability systems, teacher preparation and training, curriculum, and instructional materials are aligned with challenging State academic standards so that students, teachers, parents, and administrators can measure progress against common expectations for student academic achievement." (Id., § 6301(1); Connecticut v. Spellings (D.Conn. 2006) 453 F.Supp.2d 459, 468-469.)
Congress enacted the NCLBA pursuant to its spending powers. (U.S. Const., art. I, § 8, cl. 1.) Incident to the spending power, "Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.' [Citations.]" (South Dakota v. Dole (1987) 483 U.S. 203, 206, quoted in Connecticut v. Spellings, supra, 453 F.Supp.2d at p. 469.) States choosing to participate in the NCLBA thus must adopt challenging academic content standards that apply to all students, and create and implement a statewide accountability system for ensuring that schools make "adequate yearly progress." (20 U.S.C. § 6311(b)(1)(A)(B), (2)(A).) The engine measuring this progress is the set of standards-based tests aligned to those content standards and administered to students on a yearly basis. (Id., § 6311(b)(3)(A), (C)(ii).)
To be considered for funding, the state educational agency must package these standards, accountability system and assessment measures into a plan that it submits to the Secretary of Education (Secretary). (20 U.S.C. § 6311(a)(1).) The plans in turn are subject to a peer review process and require the Secretary's approval. (Id., § 6311(e)(1)(A)(C).) The Secretary has 120 days from submission of a plan to determine, with the assistance of the peer review process, if the plan meets the requirements of the statute. (Ibid.) Once approved, a state plan remains in effect for the duration of the state's participation in the NCLBA program. (Id., § 6311(f)(1)(A).) However, states may revise their plans to reflect changes in strategies and programs, with all significant changes submitted to the Secretary. (Id., § 6311(f)(2).)
2. Annual Testing Requirements
The NCLBA requires participating states to conduct annual testing of students in each of grades 3 through 8, and at least once for grades 10 through 12, in mathematics and reading or language arts.*fn4 (20 U.S.C. § 6311(b)(3)(C)(v)(I), (vii).) All students are to be included in the annual assessment program, including LEP students. (Id., § 6311(b)(3)(C)(ix)(III).) These are students whose native language is not English and "whose difficulties in speaking, reading, writing or understanding the English language may be sufficient to deny the individual- [¶] (i) the ability to meet the State's proficient level of achievement [under the NCLBA] . . . ." (20 U.S.C. § 7801(25)(C)(i)(D)(i).)
LEP students "shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments . . . , including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do in academic content areas, until such students have achieved English language proficiency . . . ." (20 U.S.C. § 6311(b)(3)(C)(ix)(III).) The United States Department of Education's (USDE) March 2003 "Standards and Assessments Non-Regulatory Guidance" clarifies that accommodations for LEP students may include extra time, native language assessments, administration to a small group, flexible scheduling, simplified instruction, use of dictionaries, and giving instructions in the native language. Further, the guide provides: "To the extent practicable, States must make every effort to develop and administer native language assessments, if doing so is likely to yield the most accurate and reliable information about what those students know and can do. If the administration of native language assessments is not practicable, for example, when only a small percentage of limited-English students in the State speak a particular language, States must offer students of limited English proficiency other appropriate accommodations in order to yield accurate and reliable information on what those students know and can do in subjects other than English."
Once a student has attended school in the United States for three consecutive years, the statute calls for assessment of reading or language arts using tests written in English, unless, on a case-by-case basis, the local school district decides to extend native language testing for another two years. (20 U.S.C. § 6311(b)(3)(C)(x).) Additionally, a state may, for one year, exempt from the NCLBA reading and language arts testing requirement those LEP students who have attended schools in the United States for less than 12 months. (34 C.F.R. § 200.6(b)(4) (2008).)
Consistent with the goal of including all LEP students in a statewide assessment regime, the NCLBA calls for each state to "identify the languages other than English" that are spoken in the various student populations "and indicate the languages for which yearly student academic assessments are not available and are needed." (20 U.S.C. § 6311(b)(6).) States must make "every effort" to develop these assessments and may request assistance from the Secretary if such assessments are needed. However, the Secretary cannot mandate a specific assessment or mode of instruction. (Ibid.)
The NCLBA also attends to the quality of state assessments. States may select the assessment to measure proficiency, but all assessments must be aligned with the state's academic standards and must be "consistent with relevant, nationally recognized professional and technical standards." (20 U.S.C. § 6311(b)(3)(C)(ii), (iii).)
3. Adequate Yearly Progress
The NCLBA umbrella of reforms aims above all to improve student achievement, increase accountability of educational providers and close the achievement gaps between different student populations. (20 U.S.C. § 6301(1)-(3).) Accordingly, participating states and schools must annually report the results of student assessments measured against statistically valid and reliable benchmarks. (Id., §§ 6301, 6311(b)(2)(B)-(C), (h).) The directive for "adequate yearly progress" requires states to develop "separate measurable annual objectives for continuous and substantial improvement" for all students and for the following subsets: LEP students, economically disadvantaged students, students from racial and ethnic groups and students with disabilities. (Id., § 6311(b)(2)(C)(v).)
As a general matter, a school fails to make adequate yearly progress if any identified group of students at any grade level fails to attain proficiency in the state's academic achievement standards. (20 U.S.C. § 6311(b)(2)(I)(i).) However, if the percentage of students in a particular group that has not attained proficiency decreases by 10 percent from the preceding year and certain other conditions are met, the school will still be deemed to have made adequate yearly progress. (Ibid.) The NCLBA requires a governing school district to identify for "school improvement" those schools that do not make adequate yearly progress for two consecutive years, and if such failure continues, the act calls into play the progressively severe consequences of corrective action and restructuring. (Id., § 6316(b)(1)-(4) [school improvement], (7) [corrective action], (8) [restructuring].)
Similarly, the NCLBA requires the state to identify for improvement any local school district that fails to make adequate yearly progress and to take corrective action in the face of continued failure. (20 U.S.C. § 6316(c)(3)-(9) [improvement], (10) [corrective action].) Corrective actions for local school districts include deferred programmatic funding or reduced administrative funding; requiring a new curriculum; replacement of district personnel; removing certain schools from the jurisdiction of the district; appointing a receiver; abolishing or restructuring the district; and authorizing students to transfer to schools in other districts. (Id., § 6316(c)(10)(C).)
B. California's Framework of Pertinent Education Laws
In 1998, California voters enacted Proposition 227, the "English Language in Public Schools" initiative codified at Education Code section 300 et seq. This legislation declares that "all children in California public schools shall be taught English as rapidly and effectively as possible." (Ed. Code, § 300, subd. (f).) Under this new imperative, all public school students are to be "taught English by being taught in English," subject to the right of parents to seek a waiver from this requirement. (Id., § 305.)
2. Testing and Assessment Laws
Prior to passage of the NCLBA, the California Legislature established the Standardized Testing and Reporting (STAR) Program and enacted the Public Schools Accountability Act of 1999, as well as legislation calling for development of a high school exit examination. (Stats. 1997, ch. 828, § 11 [see current Ed. Code, § 60640 et seq.] [STAR Program]; Ed. Code, §§ 52050 et seq. [Public Schools Accountability Act], 60850, 60851 [high school exit exam].) The present STAR Program uses an assessment instrument known as the California Standards Tests (CST) to measure how well students are achieving the state's content and performance standards in grades 2 through 11. (Id., § 60642.5, subd. (a).) The CST is only administered in English. In turn the high school exit exam measures the skills and knowledge students must demonstrate in English in order to earn a high school diploma; by statute it is administered in English. (Id., § 60852.) Successful passage of the high school exit exam debuted as a condition of high school graduation commencing with the 2003-2004 school year. (Id., § 60851, subd. (a).)
In order to measure the academic achievement of students, schools and districts over time, the Public Schools Accountability Act provides for an Academic Performance Index (Ed. Code, § 52052) consisting of a variety of indicators including the results of achievement tests, attendance rates, and graduation rates (id., § 52052, subd. (a)(4)). Together, the Academic Performance Index, the CST and the high school exit exam form the lynchpin of California's statewide system of academic assessments and accountability.
Educational Testing Service (ETS) has been the test contractor for both the CST and the high school exit exam. ETS management has indicated that the service works closely with the State Board and CDE on testing issues relating to English learners.
In developing the CST and high school exit exam for California, ETS staff was aware of and incorporated principles of "universal design" theory. As explained in an internal ETS report, whereas most tests currently are designed "in ways that limit the means of recognition, expression and engagement available to students," the tenets of universal design assert that "the means available to a student within a learning environment should be available within an assessment environment." Thus, as an example pertaining to test development, universal design tenets would encourage elimination of unnecessary linguistic complexity.
ETS test development staff employ a number of procedures designed to reduce any avoidable disadvantages to English language learners. Test items are subject to multiple reviews for clarity of phrasing as well as bias and sensitivity, and in order to reduce inappropriate linguistic complexity and linguistic bias. These efforts include reducing excessive wordiness and the length of sentences and paragraphs; avoiding unusual words, multiple-meaning words and irregularly spelled words; avoiding the use of several names for the same concept; and using typeface and graphic strategies to signal the relative importance of information.
ETS instructs its test developers to generally avoid unnecessarily difficult language and "[to use] the simplest and most straightforward language consistent with valid measurement to help avoid construct-irrelevant difficulty for test takers who are not native speakers of English . . . ." ETS standards call for the test development teams to reduce threats to validity that might arise from language differences. The service also trains the assessment review panels to recognize and comment on unnecessary linguistic complexity, and to ensure that items are fair for English learners. Following each test administration, all test items are evaluated for item quality and possible bias against or unfairness to English learners and others.
C. State Board Submits California Plan to the USDE
In June 2002, the State Board submitted California's state plan for NCLBA funding to the USDE.*fn5 We take judicial notice that the Secretary approved the plan in July 2002. California has received NCLBA funds since the 2002-2003 school year.
With the plan the State Board designated the CST and the high school exit exam as the assessments California schools would administer to satisfy NCLBA accountability and assessment obligations. The plan related that these tests are administered in English; accommodations for English learners are available on the CST; and during the next six to 12 months the State Board would be evaluating the accommodation policies for each test to maximize accessibility for English learners. As permitted, California does not include in adequate yearly progress calculations the scores on English language arts tests of recently arrived LEP students in their first year of school in the United States.
D. The State Board Decides to Promulgate Regulations on Testing Accommodations for English Learners Instead of Developing Primary Language Tests
In September 2002, the State's Expert Panel on Assessment (Expert Panel or panel) convened for two days to discuss development of a comprehensive, consistent testing policy for including English learners in our statewide assessment programs. Also attending these meetings were the State Board president and the board member assigned as the liaison on testing and NCLBA accountability issues.*fn6 The panel considered two main options: create STAR primary language tests; or revise the State's accommodations policy for English learners. The panel reviewed testing policies in other states with significant English learner student populations. Members were mindful that the policy environment in California was different in that Proposition 227 ...