PROPOSED CHANGES TO TITLE I THREATEN
EDUCATIONAL OPPORTUNITIES FOR ENGLISH
LANGUAGE LEARNERS (ELLs)

Upwards of 6 million school-aged children in the United States live in homes
where a language other than English is used. Nearly 3 million of these children
are Limited- English-Proficient (L.E.P. also called English Language Learners,
or ELLs).1

The most critical issues confronting ELLs/LEPs2 are the quality of their schools
and teachers, and whether their schools have adequate resources - not the
specific instructional method of their bilingual program.3 Research comparing
program types and academic achievement suggests that there are modest-sized
benefits in favor of bilingual education programs,4 and that the benefits of
“immersion” - have been grossly inflated and politicized.5 Instead, many factors
should be considered to develop an effective educational program for ELL students
from a given community.6 The major differences in learning for ELLs are attributable
to school characteristics and not to the approach taken toward language learning.7

To ensure academic excellence for ELLs, states and school districts should be
held specifically accountable for ELL performance. Accountability should be
measured by improvements in test scores and graduation rates using disaggregated
results for each district and school by English proficiency status.8

ELL students should receive the same academic curriculum, be held to the same
high standards, and be assessed for academic achievement with the same
regularity as mainstream students pursuant to Title I. Equally important is that
ELL students are assessed with valid tests that are criterion referenced, and provided
with appropriate accommodations to ensure that test scores are useful for diagnostic
purposes. Unfortunately, many ELL students are either assessed in ways that yield
inaccurate data, or are not assessed at all.9

The use of inappropriate tests and the failure to provide effective
accommodations10 causes ELL students to receive ineffective instruction and to
miss educational interventions.11 For example,it is difficult to separate out the
problems a student has that are related to his/her English comprehension from those
that reflect his/her difficulty in mastering the content when evaluating ELL students’
progress through content area tests given in English.12

Title I accountability provisions should be amended to reflect the complexities of
assessing English language learners. The consensus reflected in professional
standards on testing and accommodations is that ELLs need a wide range of test
accommodations to yield valid results. ELLs should not be denied promotion, or
1
subjected to the consequences of a high stakes test, while their language
development is transitioning to English proficiency. Title I should clarify
assessment requirements regarding validity to ensure that state and local
education policy makers assess ELLs consistent with broadly accepted standards
for testing and accountability. Assessment in academic content and English
language development is critical to diagnose the progress of individual students and
their educational programs and should be included in Title I reporting and
accountability. However, according to research, for students who are not yet
proficient reading and writing in English but are receiving instruction in English,
neither assessment in their first language nor assessment in English will yield reliable
and valid results.13

Proposed changes to Title I that would impose a 3-year time line for assessment
in English are unsupported by research and inappropriate for many ELL
students.14 The vast majority of research indicates that the time needed to achieve
proficiency in a second language can range from 2 to 7 years.15 To test ELL students
in English before they are ready will undermine educational opportunities for them.16

The decision whether to assess a child in English should be tied to the attainment
of certain level of literacy benchmarks, not to a predetermined number of years
in English-only instruction.24

Rather than setting rigid time limits for individual students English language
proficiency, schools and school districts should be held accountable for assessing
proficiency of aggregate ELL progress toward a performance benchmark. For
example, schools could be held accountable for meeting a percentage goal for the
numbers of students who successfully transfer out of bilingual education programs in
a set period of time.

Premature “in English” assessments of ELL students are potentially invalid25
and unlawful. 26 For example, the Department of Education, Office for Civil Rights,
has found “severe problems” with ELL students misclassified into special education
programs, 27 often after being tested in English prematurely.
1
See Kenji Hakuta & Michele Bousquet Gutierrez, The Current Issues in Bilingual Education with Special
Reference to the State of California 1 (Feb. 8, 2001) (unpublished manuscript, paper presented at The Civil
Rights Project at Harvard University Bilingual Education Roundtable).
2
English language learners are referred to as Limited English Proficient (LEP) students in Title I.
See Kenji Hakuta & Michele Bousquet Gutierrez, The Current Issues in Bilingual Education with Special
Reference to the State of California 1 (Feb. 8, 2001) (unpublished manuscript, paper presented at The Civil
Rights Project at Harvard University Bilingual Education Roundtable) (stating that nationally, threequarters of the ELL population is poor and attend high-poverty schools); National Research Council,
Testing English-Language Learners in U.S. Schools: Report and Workshop Summary 12 (Kenji Hakuta &
Alexandra Beatty eds., 2000) (same); Jennifer van Hook & Michael Fix, Chapter 2: A Profile of Immigrant
Children in U.S. Schools, in Overlooked and Underserved (Jorge Ruis-de-Velasco & Michael Fix eds.,
2000).
3
2
4
See See Kenji Hakuta & Michele Bousquet Gutierrez, supra note 1, at 3.
See Educating Language Minority Children 61 (Diane August & Kenji Hakuta eds., 1998).
6
See id. at 61-63.
7
See id. at 73-75.
8
See Eugene E. Garcia, Reforming Education: Title I and the Language Minority Student, in HARD
WORK FOR GOOD SCHOOLS: FACTS NOT FADS IN TITLE I REFORM (The Century Foundation,
forthcoming 2001) (manuscript at 11-12, on file with The Civil Rights Project - Harvard University);
Educating Language Minority Children, supra note 3, at 50 (advocating the need for this type of
disaggregation to determine whether schools served by Title 1 are making adequate progress toward
enabling all children to meet the state’s student performance standards).
9
See National Research Council, Testing English-Language Learners in U.S. Schools: Report and
Workshop Summary, supra note 2, at 10, 20-21; National Research Council, High Stakes: Testing for
Tracking, Promotion and Graduation 214-18 (Jay P. Heubert & Robert M. Hauser eds., 1999); U.S.
Commission on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Students with
Limited English Proficiency: Federal Enforcement of Title VI and Lau v. Nichol 189 (Nov. 1997)
[hereinafter CCR ELL Report]; Jennifer van Hook, supra note 1, at 15.
10
See, e.g., Francis Butler and Robin Stevens, Accommodation Strategies for English Language Learners
on Large-Scale Assessments: Student Characteristics and Other Considerations, (National Center for
Research on Evaluation, Standards, and Student Testing, 1997); National Center for Education Statistics,
The Inclusion of Students With Disabilities and Limited English Proficient Students in Large-Scale
Assessments: A Summary of Recent Progress (1997). One result is that ELL students are substantially less
likely than non-ELL students to finish high school. See Jennifer van Hook, supra note 1, at 16.
11
See Kenji Hakuta, supra note 1, at 9.
12
Id.
13
See National Research Council, High Stakes: Testing for Tracking, Promotion and Graduation, supra
note 7, at 225-26.
14
See Eugene E. Garcia, supra note 6 (citing a study by Thomas and Collier, 1995, that academic success is
boosted by “academic instruction through students’ first language for as long as possible...”).
15
See id. at 21; National Research Council, Testing English-Language Learners in U.S. Schools: Report
and Workshop Summary ,supra note 2, at 6, 17 (suggesting 4-7 years).
16
“This simple provision, adopted by the House in H.R. 2, .. . carries potentially very damaging
instructional implications if widely adopted in practice.” Eugene E. Garcia, supra note 6, at 19.
24
See National Research Council, High Stakes: Testing for Tracking, Promotion and Graduation, supra
note 7, at 229.
25
See, e.g., National Research Council, Testing English-Language Learners in U.S. Schools: Report and
Workshop Summary , supra note 2, at 5 (citing National Research Council, High Stakes: Testing for
Tracking, Promotion and Graduation, (Jay P. Heubert & Robert M. Hauser eds., 1999)); U.S. Department
of Education Office For Civil Rights, The Use of Tests When Making High-Stakes Decisions For Students:
A Resource Guide For Educators and Policy Makers, at iii-iv, 40-43 (December 2000).
26
See, e.g., Lau v. Nichols, 414 U.S. 563 (1974). OCR’s May 1970 guidelines pursuant to Title VI and Lau
state that “Students may not be designated as mentally retarded or academically deficient on the basis of
criteria that essentially measure and evaluate English language skills.” 35 Fed. Reg. 11, 595 (1970); See
also U.S. Department of Education Office For Civil Rights, The Use of Tests When Making High-Stakes
Decisions For Students: A Resource Guide For Educators and Policy Makers, at 57-60 (December 2000).
27
See CCR ELL Report, supra note 7, at 156.
5
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