JIM MAlTOX Attorney General

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorwy General of Texas

:%rch 26. 1986

Ronorable Juan J.Hinojosa chairman Committeeon Bud@% and Oversight for JudicialA:ifairs TexasHouse of Representatives P. 0. Box 2910 Austin, Texas 78769 Mr. WilliamN. Ki:rby Commissionerof Education Texas EducationAl:ency 1701North Congrem!Avenue Austin,Texas 78701 Gentlemen: OpinionNo. JM-458
Re: Administrationof basic skillsassessment instruments pursuant to section 21.551 of the EducationCode

You have both inquired about the administration of the examination described bj,section 21.551 of the Education Code to students limited in Engliil proficiency. Section 21.551 of the Education Code provides inpart:

(a) The Central Education Agency shall adopt appropriate criterion referenced assessment instrummts designed to assess minimum basic skills ~competeacies in reading, writing, and mathematics for all pupils at the first, third, fifth, seventh and ninth grade levels and in mathemac:l:cs

and English language arts for all pupils at the 12th grade level. The examination i13 known as the TexasAssessment of Basic Skills. See Open RecordsDeciaiion Nos. 352, 305 (1982). -
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 examinationresulw are confidential,but overallperformancedata for each schooland schooldistrict ismade availableto thepublicby 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.

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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 thicEducation Code provisions on bilingual educationand special languageprograms:

'Studentsof limitedEnglishproficiency'means students whose p'rimarylanguage is other than English andwhose English language skillsare such that the students have difficulty performing ordinary classwork in English. Educ. Code $21.452(3). Schooldistrictsare I,equired to identify the studentsof limited Englishproficiency in cad. schoolas 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 requirtmlcntsof section 21.551 of the Texas Education ICode for Limited English Proficiency (LEP)d&ldren? This question is particuk.rly directed at the administration of the test to first graders in ,theLa 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 21.453of the EducationCode. Spanish is theprimary 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 educationprogram governedby sections 21.451 thrtigh 21.463 of the EducationCode andwe assume that theLa JoyaDistricthas done this. The LRP studentsenrolled in a bilingualprogram are to receive instruction in English language skillswhile 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 theprogrammay includeperformance on a CPA-approvedEnglish 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 languagemay 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-llnglishinstructionalprogram as determined by:

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(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'spr.Lmarylanguageand 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,andparental 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 educationmust establish a languageproficiencyass,wsmentcommitteewhich shall:

(1) review all pertinent information on limited English proficiency students, including thehome langua@r survey,the languageproficiency tests in English and the primary language, each student's achievement in content areas, and each student'semotio:Zil and socialattainment; (2) make recommendations concerning the most appropriateplacnnent for the educationaladvancement of the limited English proficiency student after the elementarygrades; (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‘he

progress of students formerly classifiedas limitedEnglishproficiencywho have exited from the bilingual education or special language program and, based ou the information, designate the most appropriate placement for the student.
. . . (IZmphasis added). 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 compliancewitl.program requirements is subject to review

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by the Central EducationAgency. The testing requirements are geared to the bilingual program. Administration of the basic assessment of skills examination in English to the first graders in questionwould provide little or no additjlonalinformation about their progress in school. The results would be more likely to misrepresent an LEP student'seducationalattainments. See Castanedav. 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 Castanedav. 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 challengedas discriminatoryand the court statedas follows:

'Abilitygroups' 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 :LimitedEnglish language skills and has been receiving a substantialpart of his or her education !!nanother language as part of a bilingual educationprogram. Castaneda v. Pickard, 648 F.2d 989, 998 (5th Cir. 1981). The court pointed out that the abi:Litygrouping practices could "operate to confusemeasures 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). Castanedav. Pickard al.80addressedthe schooldistrict'stesting 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 theTexas EducationAgency and the school district to 1mplawr.t a Spanish language test to measure the progress of LEP studentsin subjects other than English.
We recognize that Castaneda arises out of particular facts different from the factsg;Eore US, and thatwe 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

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examinationdescribed in section 21.551 of the Education Code. It is not an appropriatefnstrumont for designatingcompensatoryor 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 competenciesin reatldng, writing, andmathematics." Educ. Code 921.551(a). Accordingly, LEP first graders in a bilingual program are exempted from **the** basic skiILls assessment examinationuntil the Texas Education Agency designs s,nappropriate exam for avaluating them for compensatory education. In the alternative, the CPA may make a determinationthat the beslc skills competenciesof this group of LEP childrenhave been tested sufficientlyunder the existing requirements for testingparticipants in thebilingual educationprogram. Itwould appear that giving a Spanish language examinationwould 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-referencedexaminations 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 RepresentativeHinojosa's secondquestion. Connnissioner

Kirby has asked four questions. We will answer the first two questionstogether. 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,tateBoard of Education exempt classesof studentsfrom thebasic skillsexamination other than those prescribed in section 21.5551

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Section 21.551 of the Education Code requires the Central EducationAgency to adopt nppropriateassessment instrumentsto assess certainbasic skills

for allpupils at the first, saventh,and ninth grade.
. . . third, fifth, (Emphasisadded). Section 21.555of theEducnt:ion Code provides as follows: Any student who has a physical or manta1 impairment or a learning disability that prevents the student fro-m

mastering the competencieswhich the basic skil,ls assessment instrumeuts are designed to measure may be exempted from the requirementsof this subchapter. Section 21.551 requires assessment of all pupils In the enumerated grades. Section 21.555provides an express exception from the testing requirement for the students it describes. In answering Representative 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:lon21.551 of the Education Code. Thus, section 21.555 does not state the only possible exception from the testingrequirements. Whether any other implied exceptionsexistmust be decided on a case-by-carle: basis.
We note, in this context, that the Texas Education Agency in effect exempts LRP student,sfrom the basic skills examination. The letter from the Texas EducationAgency requesting our opinion informs us of its policy on testing "studentswho do not read and write the English languagewith 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 limitedEnglishproficient students. These students thus receiw a zero on the examination. This practice is not authorizedby the statute and we find no impliedauthority for it. ,

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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 'appropriate' tests fo,c different studentsor classesof studentswithin ,agrade level?
Our answer to Representative Hinojosa's specific question about LEP first graderswas based inpart on facts about that group of students. You ask a broad question, which can only be answered in connection with a specificgroup of students, in the light of the relevant facts. Accordingly,we do not addressyour third question.
Your fourthquestion 11s as follows: 4. May the !Ir:ate Board of Education waive or postpone the testing of certain classes of students until 'appropriate' assessment instruments 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 polstponethe testing of certain classes of students if it can do so consistentlywith the statute. See Educ. - Code 1521.551,21.556 (conE:Ldentiality of tests).
SUMMARY Section 21.551 of the Education Code, governs the basic assef.smentof skills examination for students in the first grade as well as higher grades. This tes,ting requirementis subjectto 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 proficiencywho are enrolled in abilingual educationprogram.

7 IM MATTOX AttorneyGeneral of Texas
JACKBIGHTOWER First AssistantAttorneyGeneral

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MARY KELLER ExecutiveAssistantAttorney General
ROBERT GRAY SpecialAssistantAttorneyGeneral
RICK GILPIN Chairman,Opinion Committee Preparedby SusanL. Garrison AssistantAttorney General ,

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