MEMORANDUM

Date: February 3, 2016

To: U.S. Department of Education

From: Noah Zinner

Issue: Non-Native Speakers of English – Ability to Benefit Testing and False Certification 

Discharges

This memo describes the following proposals:

(1) Certification Requirements for Schools Enrolling Students Without English Language 

Proficiency: Amend the Direct Loan regulations to require schools that enroll non-native 

English speakers without English language proficiency into programs with instruction, 

instructional materials, or exams in English to certify the student’s ability to benefit from 

the program.

(2) False Certification Discharges for Non-English Speaking Borrowers Without English 

Language Proficiency: Clarify discharge eligibility for all Direct and FFEL loan nonEnglish proficient borrowers whose schools falsely certified their ability to benefit by 

enrolling them in programs with instruction, instructional materials, or exams in English.

Background: During the public negotiated rulemaking, I raised the issue of amending the false 

certification regulations to establish and/or clarify the right of a student to seek discharge of a 

federal student loan under 34 C.F.R. § 685.215(a)(1)(i) (for Direct Loans) and 34 C.F.R. 

§682.402(e)(1)(i)(A) (for FFEL Loans), when a school has falsely certified that a non-native 

English-speaking student without English language proficiency has an ability to benefit from a 

Title IV program taught in English. The purpose of these requested amendments is not to restrict 

student access to programs that legitimately serve non-native English speaking communities, nor 

is it to create unnecessary barriers for students who speak English fluently in addition to their 

native language or languages. Rather, amendments are needed to support non-English speaking 

students who are recruited by and enrolled in institutions that lack the resources and will to 

educate them. 

The Department has already recognized that schools should ensure that non-native English 

speakers without English proficiency are able to benefit from programs taught in English before 

enrolling them. At present, the Department’s rules require ability-to-benefit (ATB) tests for a 

“non-native speaker of English,” defined as a “person whose first language is not English and 

who is not fluent in English.” 34 C.F.R. §§ 668.141(a), 668.142. The ATB test for such students 

must meet the requirements of 34 C.F.R. § 668.153 (included in Attachment A) and, by 

reference, 34 C.F.R. §§ 668.146 and 668.148(b). 
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 2

2

As written, the Department’s regulations only apply to “non-native English-speaking students” (I 

will use this term under the Department’s own definition from here forward to signify students 

who additionally lack English-language proficiency) who do not have “a high school diploma or 

its recognized equivalent prior to enrollment” and who otherwise qualify for federal financial 

aid. 34 C.F.R. §§ 668.32(e) and 668.141(a). This presumes that those with a high school 

diploma or recognized equivalent have an ability to benefit from an educational program, even 

where the school provides no instruction in the language in which the student is fluent. It is a 

presumption that makes no sense given the real-life experiences of non-English speaking 

students, including those with high school diplomas and GEDs received in other languages, who 

are targeted for recruitment into schools where they have no practical ability to benefit from 

instruction they cannot understand. Under the current regulations these students may not be 

eligible for a false certification discharge of their federal student loans even where the school 

provides no instruction, instructional materials, or exams in the student’s language. 

We and other legal services organizations have regularly encountered former students, including 

those who earned high school diplomas in their native countries or GEDs in Spanish, but whose 

schools falsely certified their ability to benefit. These schools represented that the students 

would receive instruction in their native language or that the students’ lack of English-language 

proficiency would otherwise be accommodated by the school. In one case, several Spanishspeaking students enrolled in a cosmetology school that featured a prominent sign that read “Se 

Habla Espanol” only to later learn that no Spanish-speaking instruction would be provided. In 

another case, the instruction was offered in Spanish, but the study materials and tests were all in 

English. As a result, these students had difficulty learning the skills necessary for employment 

and could not pass the tests without help from instructors and other students. Often, these 

students do not withdraw from their programs because they have no idea they may be entitled to 

a refund or the school misrepresents that they cannot get a refund. None of these students were 

able to benefit from their educations.

The Department should discourage unprincipled schools from targeting this vulnerable 

population by requiring schools to directly certify that a non-native English speaking student has 

an ability to benefit from the program. The required certification should, without exception, be 

on the basis that a non-native English speaking student can benefit from the program because: 

(1) the institution provides her or him complete instruction, instructional materials, and exams in 

her or his native language, (2) the institution provides specific and sufficient accommodation of a 

student’s lack of English language proficiency, such as an approved ESL component, or (3) the 

student is English-language proficient to the level of instruction. In addition, the Department 

should provide discharge relief to non-native speaker of English whose ability to benefit was 

falsely certified. 
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 3

3

Proposal No. 1: Amend the Direct Loan regulations to require schools that enroll nonnative English speakers without English language proficiency into programs with 

instruction, instructional materials, or exams in English to certify the student’s ability to 

benefit from the program.

● The Department should amend 34 C.F.R. § 668.32 to provide that a student without 

English fluency who enrolls in a program with instruction, instructional materials or 

exams in English is eligible for Title IV funding if, before enrolling, he or she passes an 

English proficiency exam approved by the Department. The Department should require 

exams and passing scores that demonstrate a student’s oral and written English 

proficiency at an appropriate postsecondary level for the program’s subject matter. This 

should be required of students without English fluency regardless of whether the student 

has a high school diploma or equivalent.

● The Department should also amend sections 34 C.F.R. §§ 668.141, 668.153, 668.146 and 

668.148 to require appropriate ability to benefit testing in all relevant situations and to 

specify how it will approve English proficiency exams, levels of proficiency required, 

and other test requirements. On request, I did some research regarding English-language 

proficiency exams in higher education, which is included in Attachment B, but the 

Department should seek input from qualified experts in designing requirements that 

ensure that non-native English speaking students can benefit from programs that 

accommodate a lack of English proficiency, while ensuring that they are not targeted by 

schools that do not. 

● There may be circumstances when testing is unnecessary, such as for bilingual education 

programs (where both the instruction and all the materials are in English and the student’s 

native language) or where the school provides appropriate language accommodations. 

This would require further information about whether the school currently provides

effective language accommodation or bilingual programs.

Proposal No. 2: Expand discharge eligibility to Direct and FFEL loan non-English 

speaking borrowers whose schools falsely certified their ability to benefit by enrolling them 

in programs with instruction, instructional materials, or exams in English.

All Direct and FFEL loan borrowers who lacked oral or written English proficiency at the 

time they enrolled in a program with English instruction, instructional materials, or exams 

did not have the ability to benefit from their programs. Yet, not all of these borrowers are 

currently clearly eligible for false certification discharges.

Borrowers who did not have a high school diploma or recognized equivalent prior to 

enrollment and enrolled between July 1, 1996 and July 1, 2012 should currently be eligible 

for discharges. The FFEL and Direct Loan regulations should be amended to also provide 

discharges for non-English speaking borrowers who:
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 4

4

● Had high school diplomas or an equivalent before they enrolled;

● Lacked a high school diploma and enrolled before July 1, 19961 and on or after July 1, 

2012; or

● Enroll after July 1, 2017.

 1 This is the date on which the English-proficiency ability-to-benefit regulations went into effect. 60 Fed. 

Reg. 61830 (1996).
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 5

5

Attachment A

34 C.F.R. § 668.153. Administration of tests for individuals whose native language is 

not English or for individuals with disabilities.

(a) Individuals whose native language is not English. For an individual whose native 

language is not English and who is not fluent in English, the institution must use 

the following tests, as applicable:

(1) If the individual is enrolled or plans to enroll in a program conducted 

entirely in his or her native language, the individual must take a test approved 

under §§ 668.146 and 668.148(a)(1).

(2) If the individual is enrolled or plans to enroll in a program that is taught in 

English with an ESL component, the individual must take an English language 

proficiency assessment approved under§ 668.148(b) and, before beginning the 

portion of the program taught in English, a test approved under § 668.146.

(3) If the individual is enrolled or plans to enroll in a program that is taught in 

English without an ESL component, or the individual does not enroll in any 

ESL component offered, the individual must take a test in English approved 

under§ 668.146.

(4) If the individual enrolls in an ESL program, the individual must take an 

ESL test approved under§ 668.148(b).

(5) If the individual enrolls or plans to enroll in a program that is taught in the 

student's native language that either has an ESL component or a portion of the 

program will be taught in English, the individual must take an English 

proficiency test approved under § 668.148(b) prior to beginning the portion of 

the program taught in English.
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 6

6

Attachment B

Existing English-language Proficiency Exams:

The Department should solicit opinions and advice from recognized experts in the field of 

language proficiency testing before implementing specific testing protocols for determining 

English-language proficiency for programs taught in English. However, there are analogous 

guidelines already in place for many Title IV institutions, linking fluency requirements to the 

level of instruction. 

Probably the most analogous context is that of international students applying to admission at 

United States colleges and universities. Most U.S. colleges and universities require 

international students for whom English is not their native language to take an English 

Language proficiency test before admission. The most common tests for English language 

ability are the Test of English as a Foreign Language (TOEFL) (http://www.ets.org/toefl), the 

International English Language Testing System (IELTS) (http://www.ielts.org/), the 

Michigan English Language Assessment Battery (MELAB) 

(http://www.cambridgemichigan.org/institutions/products-services/tests/proficiencycertification/melab/) , and the Pearson Test of English (PTE) (http://pearsonpte.com/). A 

good critical overview of the use of these tests for admissions and other purposes at "highresearch" universities is contained in the dissertation paper K. Kokhan, Examination of the 

Appropriateness of Using Standardized Test Scores for English as a Second Language (ESL) 

Placement, Dissertation, University of Illinois at Urbana-Champaign (2014), available at 

https://www.ideals.illinois.edu/bitstream/handle/2142/50752/Kateryna_Kokhan.pdf?sequenc

e=1. 

The TOEFL test was developed by the Educational Testing Service (ETS), the same 

company that developed the SAT and GRE. In 2005, ETS developed an internet based 

TOEFL (iBT) that has become more commonly used by colleges. See 

https://www.ets.org/toefl/ibt/about . ETS says the TOEFL iBT "measures your ability to use 

and understand English at the university level. And it evaluates how well you combine your 

listening, reading, speaking and writing skills to perform academic tasks." Id. Several 

studies have concluded that the TOEFL provides a valid measure of English language 

proficiency. See studies listed at https://www.ets.org/toefl/research/topics/validity . The 

current cost to take the test in the United States is $190. See 

http://www.ets.org/toefl/ibt/about/fees/ (click through to location). Here is an overview of 

the TOEFL iBT format:

Section Time Limit Questions Tasks

Reading 60-100 36-70 Read 3-5 passages from academic texts 
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 7

7

minutes questions and answer questions. 

Listening 60-90 

minutes 

34-51 

questions 

Express an opinion on a familiar topic; 

speak based on reading and listening tasks. 

Break 10 minutes - -

Speaking 20 minutes 6 tasks Express an opinion on a familiar topic; 

speak based on reading and listening tasks. 

Writing 50 minutes 2 tasks

Write essay responses based on reading 

and listening tasks; support an opinion in 

writing. 

There do not appear to be uniform standards as to what constitutes "English language 

proficiency" in the context of higher education based on these tests or other 

measures. Although it appears that the vast majority of the U.S. colleges and universities 

accept TOEFL scores to demonstrate English language proficiency, and most also accept 

scores from the IELTS, colleges differ significantly on their minimum score requirements for 

admission eligibility. See Kokhan dissertation at 18-19 (12-13 of internal document). The 

ETS explains on its website that “There is no passing or failing TOEFL® score; individual 

higher education institutions and agencies set their own score requirements. TOEFL scores 

are valid for two years after the test date and there is no limit to the number of times you can 

take the test, but you cannot take it more than once in a 12-day 

period.” https://www.ets.org/toefl/ibt/scores/.

As an example, California State University at Long Beach has the following English 

language proficiency requirement:

All undergraduate applicants whose native language is not English and who have not 

attended schools at the secondary level or above for at least three years full time where 

English is the principal language of instruction must present a score of 61 (iBt) or above on 

the Test of English as a Foreign Language (TOEFL). Some majors may require a score 

higher than 61. Some majors and some campuses may require a higher score. A few colleges 

may also use alternative methods of assessing English fluency: Pearson Test of English 

Academic (PTE Academic), the International English Language Testing System (IELTS), 

and the International Test of English Proficiency (ITEP).

http://web.csulb.edu/divisions/aa/catalog/current/admissions/test_requirements.html.
Language Proficiency/Ability-to-Benefit Proposals

February 3, 2016

Page 8

8

Similarly, the University of California requirement is:

If you’ve completed all your secondary school/high school in a country where English is not 

the language of instruction, you can demonstrate proficiency by taking one of these exams 

and earning the required scores:

Test of English as a Foreign Language (TOEFL) examination: Accepted with an 80 or 

better for the Internet-based test and 550 or better for the paper-based test

International English Language Testing System (IELTS) examination (academic modules): 

Accepted with a 6.5 or better band score (academic modules)

Keep in mind: A UC campus may require a score higher than the minimum for admission 

selection.

http://admission.universityofcalifornia.edu/international/toefl-ielts-exams/.

Los Angeles Trade-Tech, a community college, requires the following from international 

students:

Submit proof of English proficiency in the form of an official TOEFL score report sent 

directly from Educational Testing Services (ETS). The minimum score requirements are as 

follows: paper based = 450, computer based = 133, and internet based = 45. In lieu of the 

TOEFL, you may also submit the official results of an International English Language Test 

Skills (IELTS) report with a minimum 5 band score, or the Step Eiken with a minimum 2A 

grade level. Test scores are valid for 2 years. This language requirement is waived if you are 

from a country that uses English as the primary language in its educational system. It is also 

waived if you are currently studying at a college or university in the U.S. with a valid I-20.

http://college.lattc.edu/isc/admissions-requirements/.

Some schools also accept prior academic experience in the United States (generally a 

bachelor's degree where the student is applying for graduate study), or successful completion 

of an institutional English language program prior to applying for admission. See id. at 14-

15 (7-8 of internal document). Some universities waive the testing requirement for U.S. 

citizens and permanent residents. See id. at 16 (9 of internal document).

In sum, while there are widely accepted instruments for measuring English language 

proficiency at the college level, such as the TOEFL, there do not appear to generally 

accepted specific standards (i.e., minimum test scores) for proficiency, with different 

colleges applying different standards.