Schools Put State Exam To the Test in Court

Suit to exempt kids with little English

BAY AREA—Four Bay Area school districts go to court Monday in an attempt to overturn a state law requiring all public school students to take an annual achievement test in English.

The San Francisco, Berkeley, Oakland and Hayward school districts are suing the state Department of Education and the state Board of Education, saying that the law violates the civil rights of children who speak little English.

“We think it’s unconstitutional and illegal,” said James Donato, an attorney with the Cooley Godward law firm, which is representing San Francisco free of charge in the suit filed in 1998. “We want students to have a fair opportunity to learn the language of the test before they’re tested, and before their teachers and the district make decisions about their education based on those test scores.”

The school districts are asking a San Francisco Superior Court judge to allow any child with fewer than 30 months of English instruction to be automatically exempt from taking the multiple-choice test of reading, math and other basic skills known as the Stanford 9. It is given each spring to students in Grades 2 through 11.

About 1.5 million California students, or about one in four, are considered “limited-English proficient.”

Attorneys for the state argue that all students should be held accountable for educational progress and that a baseline score is needed for each child so their parents and teachers can measure that progress.

“We think it’s important to test the kids. To hold the school district accountable, we need to know how the kids are doing — plain and simple,” said Rae Belisle, an attorney for the state.

Since the test was first given in spring 1998, San Francisco has been the only district in California to consistently refuse to test all students, automatically exempting those with fewer than 30 months of English instruction.

Berkeley, Oakland and Hayward do test, but they nevertheless joined the suit. In 1999, the second year of testing, Oakland exempted students from testing if they did not speak English. It resumed testing all children this year.

San Francisco enrolls about 6,000 students with fewer than 30 months of English instruction, or 10 percent of all students. The district’s refusal means many schools test too few children to qualify for lucrative state rewards, potentially in the millions of dollars.

Perhaps the biggest proponent of testing all students in English was former Gov. Pete Wilson, who authorized the test in fall 1997.

“We must make a commitment to educate and assess the progress of each (student),” he said at the time. “We cannot allow California’s children to be cheated out of educational accountability.”

His words have become gospel in a state that has since outlawed bilingual education and instituted a lucrative reward system for schools that improve their test scores.

Gospel everywhere, that is, but San Francisco.

Although other districts and even state Superintendent of Public Instruction Delaine Eastin grumbled loudly at the requirement, only San Francisco refused to comply.

Bill Rojas, then superintendent of San Francisco public schools, handed out achievement tests to state lawmakers — in Chinese. And he gave them No. 2 pencils.

“Go ahead,” he told them. “Take it.”

Assemblywoman Carole Migden, a San Francisco Democrat, wrote legislation to exempt English learners from taking the test in English, but the efforts died.

In 1998, the state sued San Francisco to enforce the law. But a Superior Court judge handed the victory to San Francisco, instead, although just for one year.

Despite the one-year limit, San Francisco has continued its policy. And although Rojas is long gone, Superintendent Arlene Ackerman has stood by the plan. School board members unanimously support it, as do many candidates running for four seats on the seven-member board.

One key issue to be argued in court on Monday will be the school districts’ assertion that California is violating the First Amendment by restricting teachers from suggesting that parents exempt their child from taking the test.

State law permits parents to request a waiver but forbids school officials from prompting them to do so.

“The regulation is over-broad and unconstitutionally vague,” said Donato, the attorney for San Francisco. “What ends up happening is that the people who need professional advice the most — the immigrant, non-English-speaking parents — can’t turn to the teachers best suited to help them.”

Belisle, the state’s attorney, said schools can and do publicize parents’ rights to the waiver.

But they cannot encourage parents, she said, because school officials “could, if they chose to, exempt the kids who they don’t think would do well. It’s an inherent conflict of interest.”

Both sides are in settlement talks, but no agreement has been reached.

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