STATE BOARD OF EDUCATION – ADMINISTRATIVE RULE SUMMARY
Title/OAR #: OAR 581-022-0617 – Essential Skill Assessments for English Language Learners
Date: October 18, 2010
Staff/Office: Doug Kosty, Tony Alpert / Office of Assessment and Information Services
New Rule
Amend Existing Rule
Repeal Rule
Hearing Date: ____July 21, 2010_________________
Hearings Officer Report Attached
Prompted by:
State law changes
Federal law changes
Other
Action Requested:
First Reading/Second Reading
Adoption
Adoption/Consent Agenda
PROPOSED/AMENDED RULE SUMMARY: Puts into rule the policy adopted by the Board in December
2009 to allow Limited English Proficient (LEP) students who are proficient in math and language arts in their
native language to use a language other than English to demonstrate their proficiency in the Essential Skills
required for graduation.
BACKGROUND:
In December 2009, the Board adopted the following policy to allow Limited English Proficient (LEP) students
who are proficient in math and language arts in their native language to use a language other than English to
demonstrate their proficiency in the Essential Skills required for graduation:
1. Districts shall adopt a process to allow LEP students to demonstrate proficiency in the Essential Skill of
Applying Mathematics in their language of origin using statewide or local assessments as appropriate and
available.
2. Districts shall adopt a process to allow LEP students to demonstrate proficiency in Reading, Writing, and
any additional Essential Skills in their language of origin using statewide or local assessments as
appropriate and available if:
a. The student has been in US schools 5 years or less
b. The student receives at least a level 3 on the ELPA
For reference, the appendices from December’s docket have been attached. Appendix A reviews the student
population addressed by this OAR. Appendix B reviews what other states are doing relating to this topic. In
addition, Appendix C provides a description of the Board’s current adopted English language proficiency
assessment option as published in the 2010-11 Test Administration Manual.
The Board first reviewed this draft OAR in June 2010 and again in October 2010.
ISSUES/CONCERNS THAT SURFACED DURING RULE WORK:
 Whether to allow districts to develop a policy whether to allow eligible ELL students to demonstrate
proficiency in the Essential Skills in a language other than English). (Yes; see Sections 2, 3, and 4)
 For districts who adopt a policy allowing eligible ELL students to demonstrate proficiency in the Essential
Skills in the students’ language of origin, whether to require districts to establish a procedure for ensuring
qualified scoring in the student’s native language for work samples or other locally developed assessment
options (Yes; see Sections 1(d) and 4(b))
CHANGED SINCE LAST BOARD MEETING?
No
STAFF RECOMMENDATION:
Adopt administrative rule as prepared this month.
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FISCAL IMPACT:
The cost associated with implementing this rule will likely vary by district based on the number of eligible ELL
students and the number of languages represented by these students in each district. ODE determined that
approximately 1,189 students meet the demographic criteria. Based on these preliminary data, surveyed
districts confirmed that not all students who meet the demographic criteria are on track to graduate or would
benefit from being assessed in their language of origin for the following reasons:



The student does not have sufficient course credits to graduate
The student is not sufficiently proficient in his or her language of origin
The student’s parent or guardian does not approve the student to be assessed in the student’s
language of origin
Incorporating feedback from districts, ODE estimates that the population of eligible students who both meet the
demographic criteria and are on track to graduate will be approximately 475 to 832 students statewide per year
(see Appendix D for additional information on the estimated number of students who meet the demographic
criteria, represented languages, and impacted districts).
To help districts identify their likely cost of implementation, ODE has developed a method to estimate likely
costs of administering two Reading work samples per student in a language other than English. The table
below breaks out costs based on whether the student’s language of origin is “prevalent” (e.g., Chinese, French,
Japanese, Russian, Spanish) or “less prevalent” (e.g., Arabic, Nepali, Somali, Thai, Urdu):
Task
Estimated Cost for
Prevalent Language
Translating two Reading work sample
prompts (and questions) from English
Training a rater fluent in the student’s
language in using the scoring guide
Scoring two Reading work samples per
student
Total cost per student for a shared
language*
$90 per language
Estimated Cost for
Less Prevalent
Language
$270 per language
$360 per language
$760 per language
$90 per student
$180 per student

$540 per single
 $1,210 per single
student +
student +
 $ 90 per
 $180 per
additional
additional
student
student
* In cases where multiple eligible students in a single district speak the same language (e.g., five students who
all speak Spanish), the district’s cost for assessing additional students in that language only reflects the scoring
of additional work samples. In addition, district costs will likely decrease over time as districts build pools of
translated work sample prompts and trained raters fluent in various languages.
To provide an illustration of the likely impact on districts, the table below provides cost estimates for three
sample districts. These cost estimates were derived by applying the above method to the number of eligible
students enrolled in each sample district and the number of languages those students represent:
Sample District
Number of
11th and
New 12th
Grade LEP
Students
Subset of
11th and New
12th Grade
LEP
Students
Who Meet
Demographic
Subset of
Students Who
Meet
Demographic
Criteria and
Are On-Track
to Graduate
Subset of
Eligible
Students
Who Speak
a Prevalent
Language
Subset of
Eligible
Students
Who Speak
a Less
Prevalent
Language
Estimated
Total Cost
per Year
2
Criteria
District A (Small
Isolated District)
8
7
1
1
0
$540
District B (Large
Metro District)
107
107
441
272
173
$17,010
District C (Large
Metro District)
303
188
127
994
285
$33,580
District D
(Medium Rural
District)
11
10
4
46
0
$810
In addition, surveyed districts identified several ways in which ODE could potentially help alleviate the fiscal
impact on districts. For instance, districts recommended that ODE could help to identify qualified raters who
were fluent in various languages or facilitate the sharing of translated prompts between districts.
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Of these forty-four students, the district estimates that only a quarter would benefit from a native-language assessment
option. As a result, actually costs for this district would likely be substantially less than projected here.
2 The twenty-seven students represent 5 different prevalent languages.
3 The seventeen students represent nine different less prevalent languages.
4 The ninety-nine students represent seven different prevalent languages.
5 The twenty-eight students represent sixteen different less prevalent languages.
6 The four students represent a single prevalent language.
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581-022-0617 – Essential Skill Assessments for English Language Learners
(1) Definitions. As used in this rule:
(a) “Assessment option” means an assessment approved to assess proficiency in the Essential Skills for the
purpose of earning a high school diploma or a modified diploma.
(b) “English Language Learner” (ELL) means a students eligible for services under who meets the definition of
“Limited English Proficient” found in Title IX, Part A, Section 9101.25 Title III of the No Child Left Behind Act of
2001 (NCLB).
(c) “Essential Skills” means process skills that cross academic disciplines and are embedded in the content
standards. The skills are not content specific and can be applied in a variety of courses, subjects, and settings.
(d) “Qualified Rater” means any individual who is:
(i) Trained to a high degree of proficiency in scoring the assessment administered to the student; and
(ii) Endorsed by the school district or public charter school, consistent with local school board policy, as
proficient in the student’s language of origin for the purposes of accurately scoring the student’s work in the
student’s language of origin.
(2) Consistent with OAR 581-022-0615, school districts and public charter schools must adopt a process policy
whether to allow ELL students to demonstrate proficiency in the Essential Skill of “Apply mathematics in a
variety of settings” in the students’ language of origin for those ELL students who by the end of their 11th grade
year:
(a) Are on track to meet all other graduation requirements; and
(b) Are unable to demonstrate proficiency in the Essential Skills in English.
(3) Consistent with OAR 581-022-0615, school districts and public charter schools must adopt a process policy
whether to allow ELL students to demonstrate proficiency in Essential Skills other than “Apply mathematics in a
variety of settings” in the students’ language of origin for those ELL students who by the end of their 11th grade
year:
(a) Meet the criteria in Section 2(a)-(b) of this rule;
(b) Have been enrolled in a U.S. school for five (5) years or less; and
(c) Have demonstrated sufficient English language skills using an English language proficiency assessment
option that is approved by the State Board of Education. ODE will issue final notice of the State Board of
Education’s adoption of English language proficiency assessment options by March 1 of each year as an
addendum to the Test Administration Manual.
(4) If a school district or public charter school adopts a policy allowing ELL students to demonstrate proficiency
in the Essential skills in the students’ language of origin The process adopted by each school district and public
charter school under Sections 2 and 3 of this rule, that policy must include the following:
(a) Development of a policy and procedure to provide assessment options as described in the Test
Administration Manual in the ELL students’ language of origin for those ELL students who meet the criteria in
Section 2(a)-(b) of this rule.
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(b) Development of a policy and procedure to ensure that locally scored assessment options administered in
an ELL student’s language of origin are scored by a qualified rater.
Stat. Auth.: ORS 329.451, 338.025, 339.115, and 339.505
Stats. Implemented: 329.045, 329.075, 329.485, and 338.115
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BEFORE THE OREGON DEPARTMENT OF EDUCATION
RULE HEARING: OAR 581-22-0617 Essential Skill Assessment for English Language Learners
HEARING OFFICER’S REPORT
The Department held a public hearing on July 21, 2010, to receive public comment on the proposed
new rule. Notice of hearing was published in a timely manner in the Secretary of State’s bulletin and
was sent to interested parties and persons who requested notice pursuant to ORS 183.335 (7). The
hearing was held at the Department’s offices in Salem, Oregon before Cindy Hunt, Hearing Officer.
No one testified and no one submitted written testimony at the hearing.
Respectfully submitted this 23rd day of July, 2010
Cindy Hunt
Hearing Officer
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Appendix A: Student Population
Which students are addressed by this policy?
This proposal addresses the needs of a very small group of highly skilled, highly motivated students who have
not had sufficient time in the US to gain the English skills to demonstrate their academic content knowledge. It
is the belief of ODE staff, that in some cases, these students may benefit more from the ability to pursue higher
levels of academic content while continuing to develop their English skills outside of high school. The
question before the Board is: Is it in the best interest of students to remain in high school solely for the purpose
of language acquisition if they meet all other graduation requirements?
How will requirements for ELL students differ from those of non-ELL students?
In order to graduate, students proficient in English must:
 Complete required credits
 Demonstrate required Essential Skills in English
In order to graduate, ELL students eligible to demonstrate their Essential Skills in a language other than
English must:
 Complete required credits
 Demonstrate required Essential Skills in native language or English
 Achieve at least a level 3 on the ELPA
Any student unable to meet these requirements would need to stay in high school longer to gain additional
skills or complete additional credits.
Scenarios of Two Oregon English Language Learners
Scenario #1 Luong and his family are sponsored by a microchip maker…
A microchip maker is struggling to recruit high quality engineers for its Oregon division. Luong is an 11th grade
student sponsored to come to the United States with 20 other Chinese students and their families. Luong goes
to high school. Upon admission, his transcript is reviewed and Luong receives equivalence for most of his
classes. Luong takes an English placement test and is scheduled to be receiving English support in an ELD
early Intermediate class. Luong struggles in math class despite having excelled at math in China. An ELL aide
helps him, but his grade suffers due to his inability to explain his mathematical reasoning in English. Despite
this barrier, Luong meets the mathematics achievement standard on OAKS. On his SAT he scores a perfect
score in Math. Luong is excited and his sponsor offers him a tour of University of Oregon. Unfortunately,
because Luong came to the US as a junior, he has to take the OAKS in English and demonstrate his mastery
of the required Essential Skills. While Luong could easily demonstrate proficiency in reading and writing in
Mandarin Chinese, he cannot do so in English. Luckily Mrs. Chan, a highly qualified teacher in his district was
able to evaluate Luong’s mastery of the Essential Skills in his native language. Luong could choose to defer
graduation and stay an extra year in high school (until he reaches 21 years of age), or he could choose to
graduate and take a year of English as a Second Language at the local community college before entering
University.
Scenario #2 Yulia, refugee from the Republic of Georgia…when English becomes a barrier.
Yulia is a refugee from Georgia. Yulia was home schooled for most of her life because of the war. Her parents
were nuclear physicists in the former USSR and have been very involved and supportive of Yulia’s education.
At Raspberry School in Oregon, Yulia settles into the routine of her classes. Most of her classmates are
preparing for college visits. In April, Yulia takes the OAKS and easily meets the achievement standard in
mathematics. She is exempt from taking the reading assessment through OAKS but must demonstrate her
mastery of the Reading Essential Skill. It must be done in English, and Yulia wonders how she will be able to
graduate this year. Her counselor suggests that Yulia stay back a year to acquire more English. After talking
with her parents she accepts. The following Spring, Yulia prepares to take the OAKS reading assessment in
English for the first time. She has been in a US school for over a year and must take the test. She fails…
but … if this policy were adopted… she could use an alternate route: work samples in Russian (the language
she is fluent in) reviewed and scored by her Russian teacher Mr. Gromiko. This time, Yulia will graduate, she is
so excited and her parents so proud.
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Appendix B: What are Other States Doing?
How are other states addressing the needs of English Language Learners as they relate to graduation
requirements?
States with graduation exams in languages other than English:
New York Regents: ELL students must pass an exit exam or alternative test or other measure to receive a high
school diploma. The Regents exit exam is available in 5 languages other than English (Chinese, Haitian
Creole, Korean, Russian, and Spanish) and ELL students may take the tests in any of these languages
regardless of the number of years they have been in a US school.
Ohio: ELL students must pass an exit exam to receive a high school diploma. ELLs enrolled in a U.S. school
for fewer than 3 years that are classified at the beginning or intermediate level in reading and writing are also
eligible to receive one additional accommodation, including administration of the test in their native language
via audio CD or use of an oral translator.
New Jersey: ELL students must pass an exit exam or alternative test or other measure to receive a high school
diploma. Students who do not pass the High School Proficiency Assessment (or parts of it) can apply to take
an Alternate High School Assessment which is available in 3 languages (Spanish, Portuguese, or Gujaratu).
Oklahoma: ELL students may take state mandated tests in their native language for the first 3 years in US
schools. After these 3 years, the tests must be administered in English, except in cases where the local district
determines on a case-by-case basis, that a student has not yet acquired sufficient English to demonstrate his
or her skills in English, in which case individual waivers are allowed for up to 2 more years of testing in the
native language.
New Mexico: The state’s exit exam is available in a Spanish-language version. In addition, local school districts
can request translation of the exit exam into any other language. This translation option is available for all
sections of the test except for the Reading test which is only available in English and Spanish. ELL students
may also receive a waiver for the exit exam (see CEP notes below).
A recent report by the Center on Education Policy also addresses this issue. This report found that:




Many states allow specific testing accommodations for ELL students and some offer alternate pathways
to graduation specifically for ELL students.
ELLs in Idaho may appeal for an alternate measure if they have been in the program for 3 years or
less; if they successfully meet the requirements for this alternate pathway, they will be able to graduate
with regular high school diplomas.
Minnesota allows districts to exempt ELLs from passing exit exams if they have been in the country for
less than 4 years before graduation
Georgia, Indiana, New Mexico, and Ohio offer waivers where students may graduate without passing
exit exams if they meet all the other graduation requirements. For the waiver option, the eligibility
criteria become particularly important to maintain the rigor of the state testing system, so states often
attach specific conditions for using the waiver. In Ohio, for instance, diplomas are given to waived
students only when they pass 4 of the 5 exit exams and the score on the fifth exam is no more than 10
scale-score points below the cut scores.
(Reference: 2009 Center on Education Policy Report - State High School Exit Exams: Trends in Test
Programs, Alternate Pathways, and Pass Rates)
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How does Oregon’s approach to English Language Learners compare with other states in instruction
and assessment?
Oregon’s programs for ELLs are required to follow the guidelines provided by the Office of Civil Rights and
support four practices exhibited by successful schools serving large numbers of ELLs (Hakuta, 2007)
 Using assessment data to improve student achievement.
 Ensuring the availability of instructional resources.
 Adequate classroom materials and facilities upkeep.
 Implementing a coherent, standards-based curriculum and Instructional program.
ESEA requires all states to include in their state assessment system an English Language Proficiency
Assessment.
Other states, like Washington, contracted with a test publishing company to align a commercially available test
to its standards. California and Oregon are two states that have developed their own assessments.
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Appendix C: English Language Learners (excerpt from Essential Skills Appendix of the 201011 Test Administration Manual)
On December 3, 2009, the State Board of Education voted to adopt a policy allowing a small number of Limited
English Proficient (LEP) students the option of demonstrating the Essential Skills in a language other than
English.
Based on a recommendation by the Assessment of Essential Skills Review Panel (AESRP), an advisory group
comprised of K12 and higher education representatives, the policy maintains the rigor of the Oregon diploma
while allowing students more flexibility in demonstrating their proficiency in the Essential Skills required for
graduation.
This policy addresses the needs of a small group of highly skilled, highly motivated students who have not had
sufficient time in the US to gain the English language skills necessary to demonstrate their academic content
knowledge. These students must be able to meet all other graduation requirements, including credit
completion, in order to graduate under this option. ODE estimates that this population would be between 250300 students statewide per year.
The policy, as adopted unanimously by the State Board of Education, is as follows:
1. Districts shall adopt a process to allow LEP students to demonstrate proficiency in the Essential Skill of
Applying Mathematics in their language of origin using statewide or local assessments as appropriate
and available.
2. Districts shall adopt a process to allow LEP students to demonstrate proficiency in Reading, Writing,
and any additional Essential Skills in their language of origin using statewide or local assessments as
appropriate and available if:
a. The student has been in US schools 5 years or less
b. The student receives at least a level 3 (Intermediate) on the English Language Proficiency
Assessment (ELPA)
As noted above, for the Essential Skills other than Apply Mathematics, eligible LEP students will be limited to
those who will have been in U.S. schools for 5 years or less (at predicted time of graduation based on initial
enrollment year in grade 9) and to those who have demonstrated sufficient English language skills using an
English language proficiency assessment option approved by the State Board. This ensures that the policy is
limited to those students who have not yet had sufficient time to fully master academic English but who have
gained sufficient English skills to pursue their next steps (college, community-college, or workforce training). At
this time, the only English language proficiency assessment option approved by the State Board is the ELPA.
To be eligible to demonstrate proficiency in an Essential Skill other than Apply Mathematics, an eligible LEP
student must receive at least a 3 on the ELPA by graduation. To provide districts with greater flexibility, ODE
will work with stakeholders to investigate additional options for students to demonstrate their English
proficiency.
The following table summarizes the approved English language proficiency assessment options and
corresponding proficiency levels approved by the State Board as of June 2010. Districts may use an English
language proficiency assessment option from this table to determine whether an LEP student is eligible to
demonstrate their proficiency in an Essential Skill other than Apply Mathematics in the student’s language of
origin.
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ENGLISH LANGUAGE PROFICIENCY ASSESSMENT OPTIONS*
PROFICIENCY LEVEL
(ONLY ONE ASSESSMENT IS REQUIRED)
English Language Proficiency Assessment (ELPA)
3
* ODE will work with stakeholders to investigate additional options for students to demonstrate their English
proficiency.
The rigor of native language assessments offered to eligible LEP students to demonstrate their proficiency in
the Essential Skills under this policy must be equal to the rigor of assessment options available in the English
language. Districts may use side-by-side translations of OAKS provided by ODE under OAR 581-022-0620:
Test Development for those Essential Skills for which the State Board has adopted OAKS as an assessment
option. Districts may also develop work sample prompts in the LEP student’s language of origin.
Note: ODE is currently developing an Oregon Administrative Rule to address the assessment of
Essential Skills for LEP students. ODE plans to update this Appendix by September 2010 following
adoption of the proposed rule by the State Board of Education.
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Appendix D: Analysis of the Estimated Number of Eligible Students, Represented Languages, and
Impacted Districts
Data Summary Method:
1. All 2009-10 11th and new 12th* Grade students Designated as LEP and having ELPA of 3, 4, or 5.
2. Students Passing Reading HS OAKS Excluded.
3. Summary of numbers of students by language designated in LEP collection.
Note: Based on 2009-2010 data, these are the maximum number of students that may be eligible to benefit
from the additional flexibility.
These data do not take into account at least two critical factors that are included in the Essential Skill
Assessments for English Language Learners OAR:
1) We do not know whether or not these students are proficient in their native languages.
2) We do not know if they have met their other graduation requirements (e.g. High School credits).
Based on 2009-10 data:
o
The total number of 11th and new 12th* grade LEP students = 2,396
o
The maximum annual number of LEP students that may be eligible to benefit from the additional
flexibility = 1,189 (~ 49.6%)
*New 12th grade students refer to 12th grade students who were new to Oregon in 2009-10.
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