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To: District Superintendents of Schools, Superintendents of Public Schools, Administrators of Charter Schools, Administrators of Non-Public Schools, and Bilingual and ESL Educators

From: Richard P. Mills

Date: December 28, 2006

Subject: Update on Limited English Proficient/English Language Learner (LEP/ELL) Student Statewide Assessment Policy

This past summer, the U.S. Education Department (USED) ruled that, under the No Child Left Behind Act, all English Language Learners (ELLs) who have been in this country for more than one year must take their state’s English Language Arts (ELA) tests.

The Board of Regents and I are opposed to this policy. We have long supported New York’s excellent bilingual education programs, including English as a Second Language, transitional bilingual and dual language programs, and we remain committed to them. We believe many ELL students need at least three years to learn sufficient English to take the ELA test, and we remain concerned about the effect the federal decision will have on the schools, teachers, and most of all the children. My colleagues and I in the State Education Department have vigorously stated our beliefs to USED officials, both before and after their decision. You will recall that New York originally adopted the policy of allowing students to take the New York State English as a Second Language Achievement Test for three years after they arrive in this country, and we would have continued this policy except for the USED ruling.

The Board of Regents and I are continuing to advocate strongly on behalf of the children for a change in the USED ruling and, if necessary, a change in the NCLB reauthorization. Our efforts to persuade them extend back many months. Both formally and informally through meetings, correspondence, discussions, and direct negotiations with USED officials, my colleagues and I in the State Education Department have proposed alternatives to the federal requirements for assessing ELL students under Title I of NCLB. Most recently, on October 23, I wrote to Assistant Secretary Henry Johnson, the federal official in charge of this area, asking at least that the USED allow children who have been in this country for more than one year but less than two years to take the ELA for participation purposes only. We are also working very hard with members of the New York Congressional delegation, and most of them have sent letters to Secretary Spellings seeking this change. I have not yet received an official response from USED and am still attempting to get a positive one. I will continue to fight for a change in the federal policy.

We have also involved many members of the New York Bilingual/ESL community in advising us on this issue. We have consulted with teachers, administrators, and advocacy organizations. All have taken a strong stand in opposing the USED decision.

At this point, even as we work to change the USED policy, we must follow the law and implement the policy during this coming year. However, we have also taken a number of additional steps at various levels to help ELL students including:

  • Providing test accommodations for ELL students, using the best research and expertise in the country to guide us,
  • Informing parents, students and ELL teachers about the content and format of the ELA tests,
  • Discussing concerns and issues with the ELL Committee of Practitioners to seek their advice on how to revise short-term and long-term testing procedures and practices, including NCLB reauthorization,
  • Working with schools to ensure that ELL students have the appropriate preparation and information about the tests,
  • Participating in the USED’s LEP Partnership, a group of states with similar issues and concerns, that share best practices with educators, experts, and researchers in the areas of ESL and bilingual education.

We will continue providing updates on any new developments regarding these testing and accountability issues. On behalf of the Board of Regents and the staff of the State Education Department, I thank you for your continued work and support on behalf of the students of New York State.

Last Updated: July 29, 2009