JIM MAlTOX 

Attorney General 

Supreme Cowl Building 

P. 0. BOX 12549 

Austin. TX. 78711. 2549 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorwy General of Texas 

:%rch 26. 1986 

Ronorable Juan J. Hinojosa 

chairman 

Committee on Bud@% and Oversight 

for Judicial A:ifairs 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Mr. William N. Ki:rby 

Commissioner of Education 

Texas Education Al:ency 

1701 North Congrem! Avenue 

Austin, Texas 78701 

Gentlemen: 

Opinion No. JM-458 

Re: Administration of basic 

skills assessment instruments 

pursuant to section 21.551 of 

the Education Code 

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 in part: 

(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 Texas Assessment of Basic Skills. See 

Open Records Deciaiion 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 

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,equired to 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 Proficiency (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-llnglish instructional 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 tistennlne the extent to which the 

student has dewloped oral and written language 

proficiency and specific language skills in both 

the student's pr.Lmary language 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:Zil and social attainment; 

(2) make recommendations concerning the most 

appropriate placnnent for the educational advancement 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‘he progress 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. . . . (IZmphasis added). 

Educ. Code 121.462(c). 

The progress of a stusdent enrolled 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 additjlonal information 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 Iluglish and 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 !!n another 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:Eerent characteristics, i.e., language and 

intelligence . . .u and dir,scted the 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.80 addressed 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 skiILls assessment 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 ,participants in 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. 

Connnissioner Kirby 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 examination 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, 

saventh,and ninth grade. . . . 

third, fifth, 

(Emphasis added). 

Section 21.555 of the Educnt: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 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 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: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 'appropriate' tests fo,c different students or classes of 

students within ,a grade 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 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 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:Ldentiality of 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,ting requirement 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 

, 

p. 2096