ANALYSIS OF STATE BOARD OF EDUCATION
EMERGENCY REGULATIONS FOR PROPOSITION 227
Jill Kerper Mora,
Ed.D.
San Diego State
University
Title 5, California Code of Regulation
Division 1, Chapter 11
English Language Education for Immigrant Children
Proposition 227
Update:
At its April 8, 1999 meeting, the State Board of Education voted 7 to 2 to eliminate requirements that were previously in force and unchanged by Proposition 227 regarding identification, reclassification and assessment of LEP students. According to Multicultural Education,Training, and Advocacy, Inc. (1999, Spring) the SBOE changed 1) 5 CCR 4303 that required assessment of students in their primary language for initial identification; 2) eliminated the requirment for objective standards and procedures for reclassifying LEP students as fluent English proficient (5 CCR 4306) and 3) eliminated the requirement to conduct an annual assessment of the academic progress of LEP students (5 CCR 4311).
The SBOE stated reasons were that the language of the regulations was inconsistent with the provisions of Proposition 227 and that it felt the need to give school districts more flexibility. META has filed a legal memorandum opposing the changes on the grounds that they seriously undermine rights neither curtailed by passage of 227 nor inconsistent with its provisions and that the changes consistute an action in excess of the authority granted to the board by the Legislature.
Among the policies and procedures left in place under established regulations are the requirements for teacher qualifications and authorizing credentials for serving English language learners (BCLAD and CLAD credential or certificate).
Analysis of State Board of Education 227 Regulations
The provisions are cited in bold red, followed by analysis and commentary.
3. Adopt Section 11301. to read:
§ 11301. Knowledge and Fluency in English.
- For purposes of "a good working knowledge of English" pursuant to Education Code Section 305 and "reasonable fluency in English" pursuant to Education Code Section 306(c), an English learner shall be transferred from a structured English immersion classroom to an English language mainstream classroom when the pupil has acquired a reasonable level of English proficiency as measured by any of the state-designated assessments approved by the California Department of Education, or any locally developed assessments.
"Reasonable level of English proficiency" appears to be whatever the school districts wish to define it to be. There is absolutely no accountability here--no indication of what this term means in terms of language assessment, literacy skills, or academic achievement. Language educators usually define proficiency in terms of a placement on a five point scale, equivalent to the Foreign Service Institute scale. A uniform system of rating is used so educators can have a common set of terms of reference or measures. Why has no such scale been adopted here? On what sound pedagogical principles will a definition of "reasonable" be based--reasonable for what purpose? These guidelines offer no guarantee that students will demonstrate readiness for the mainstream. Nor does this definition ensure that a decision in favor of continuation in sheltered immersion is justified.
(b) At any time, including during the school year, a parent or guardian may have his or her child moved into an English language mainstream classroom.
This presupposes that immersion classrooms and mainstream classrooms will be distinct entities whereby students can be "moved" from one to another. Does this provision, and do these guidelines, mandate such a tracking and grouping system within the schools? How is the decision made as to who starts out in immersion in the first place? On what basis? Can a parent decide that their child should merely start out in the mainstream, since this move can take place at any time? Although this sounds like a logical concession to parents whose children may be segregated into groups of children with similar levels of English proficiency, are the schools are ready to contend with the number of student transfers that may occur? The reasons for moving students out of immersion may not be educational. Mainstream teachers will have to contend with receiving new students with minimal skills in English at any time during the year. Does a parent's election to move a child into a mainstream class presume the waiver of appropriate services for overcoming language barriers referred to below in
Section 113021
(c) An English learner may be re-enrolled in a structured English immersion program not normally intended to exceed one year if the pupil has not achieved a reasonable level of English proficiency as defined in Section 11301 unless the parents or guardians of the pupil object to the extended placement.
This regulation does not say by whom the child will be re-enrolled in sheltered English immersion (SEI). It implies that school officials will make this decision unless parents object. At what point in the school year will parents be informed of the school's decision or recommendation regarding re-enrollment? How will this be done, orally or in writing? Which will be the "default mode" if the parents have not provided consent in written form to re-enrollment? How do schools plan for staffing, materials, etc. based on the uncertainty inherent in such informed consent procedures?
The language of Proposition 227 clearly indicates that it will only be under other than "normal" circumstances that a child would need to re-enroll. Will the State Board require the collection of statistics on the numbers of students recommended or opting for re-enrollment? Will these statistics be released to the public for purposes of school accountability?
4. Adopt Section 11302. to read:
§ 11302. Services for English Language Learners.
School districts shall continue to provide
additional and appropriate educational services to English learners in kindergarten
through grade 12 for the purposes of overcoming language barriers until the English
learners have:
(a) demonstrated English-language proficiency
comparable to that of the school district's average native English-language speakers; and
(b) recouped any academic deficits which may have been incurred in other areas of the core curriculum as a result of language barriers.
These appear to be "exit criteria" for the provision of special services. They are actually more stringent that the former re-designation criteria than under Chacon-Moscone. The "average native English-language speaker" will score between in the 40-60 percentile on a standardized achievement test.
What is unclear is what the "appropriate educational services…for overcoming language barriers" are. Nor is it clear how academic deficits, which are anticipated in this statement, are to be recouped. What are these services? Who will pay for these services, the state or the school districts? Apparently, the Office of Civil Rights and other federal agencies will be the ones to monitor whether or not such services are "appropriate." Or will the Department of Education Compliance Unit carry out this function? Nowhere is it stated whether, or how, these services will be judged to be effective or ineffective. In other words, how will normal progress in sheltered English immersion classrooms be determined?
§ 11303. Parental Exception Waivers.
(a) Parents and guardians must be informed of the placement of their children in a structured English immersion program and must be notified of an opportunity to apply for a parental exception waiver.
What criteria will be used for placement? How much description of the child's actual learning situation and grouping will be provided?
1) Parents and guardians must be provided with a full written description and upon request from a parent or guardian, a spoken description of the structured English immersion program and any alternative courses of study and all educational opportunities offered by the school district and available to the pupil. The descriptions of the program choices shall address the educational materials to be used in the different options.
How can school district's comply with this provision unless they have designed the SEI program, adopted and purchased materials, and decided upon all "alternative courses of study?" This provision appears to assume that there will be an established bilingual education program that can be offered to parents, even before the parental exception waiver process begins and sufficient waivers are granted to form a class of alternative study. Unless there is a full disclosure and description of programs, districts will be guilty of "false advertising" for failure to deliver on their promises. Also, what procedures will be in place to ensure that school districts in fact present information in ways parents can understand in order to make informed decisions. Issues of linguistically appropriate instruction are complex. What measures will be taken to ensure that the explanations are given by qualified administrators and teachers, and not by clerical staff or other unqualified individuals?
(3) Parental exception waivers shall be granted unless the school principal and educational staff have substantial evidence that the alternative program requested by the parent would not be better suited for the pupil.
This provision does not make clear to whom the school principal and educational staff must "make their case" if a waiver is denied.
3 (b) All parental exception waivers shall be acted upon by the school within twenty (20) instructional days of submission to the school principal. However, parental waiver requests under Education Code section 311(c) shall not be acted upon during the thirty- (30)-day placement in an English language classroom. These waivers must be acted upon either no later than ten (10) calendar days after the expiration of that thirty- (30)-day English language classroom placement or within twenty (20) instructional days of submission of the parental waiver to the school principal, whichever is later.
This appears to say, by not saying otherwise, that parental exception waivers can be submitted at any time after the 30 days and that they must be acted upon within two weeks of the end of the 30 day period. What does "acted upon" mean?--Either granted or denied, or actually having the child placed in an "alternative course of instruction"? At what point does the school district have to pull together a program for the waiver grantees? If the numbers reach 20 at the school at any point during the school year, do parents have the right to demand the formation of an "alternative course of instruction"? These "alternative" programs will only operate for 7.5 months of the nine month school year. How will parity of curriculum and program quality be assured for students who in fact receive the selected program of instruction for fewer numbers of days of during the school year?
These provisions appear to establish conditions whereby at the end of the required 30 days plus the 10-20 day administrative requirement for processing waivers, or before for mainstream placements, most or all students could transfer out of an immersion classroom. What would the school district do if this occurs? Will there be a minimum number of students before an immersion class would operate after the required waiver period or would these classes will incomplete enrollments be cancelled?
11304. (a) Upon written request of the State Board of Education, school district governing boards shall submit any guidelines or procedures adopted pursuant to Education Code section 311 to the State Board of Education for its review.
This appears to be an approval process of some sort, or is this merely for informational purposes? The law says that these guidelines must be approved by the SBE. To whom is the SBE accountable for establishing criteria evaluating school districts' guideline? Is there an appeals process for school districts? This is an important provision. However, there must be a balance between school districts' rights to local control and prevention of abuses according to the spirit of 11303 (3) above.
(b) Any parent or guardian who applies for a waiver under Education Code section 311 may request a review of the school district's guidelines or procedures by the State Board of Education. The sole purpose of the review shall be to make a determination as to whether those guidelines or procedures comply with the parental exception waiver guidelines set forth in Section 11303.
Apparently parents can only see the guidelines if they are applying for a waiver, and then for the "sole purpose" of making sure that the waiver guidelines are congruent with the provisions of Proposition 227. What is the intent of this regulation? Why is there a need to limit the purpose for which parents can review the guidelines? Is it possible or feasible from a legal or practical standpoint to limit the purpose of such a review?
7. Adopt Section 11305. to read:
§ 11305. Community Based English Tutoring.
(b) The governing boards of local educational agencies may disburse these funds at their discretion to carryout the purposes of this section. Local educational agency governing boards shall require providers of adult English language instruction which receive funds authorized by Education Code sections 315 and 316 to maintain evidence that adult program participants have pledged to provide personal English language tutoring to California school pupils with limited English proficiency.
It is not clear whether this provision calls for evidence of pledging or evidence that pledges are being carried out. Proposition 227 appears to direct this funding to the parents of LEP students. This provision is unclear regarding who will be the recipients of these adult programs. Therefore, it appears to expand the benefits of these programs far beyond the group for whom they were intended.
For additional information on regulations for implementation of Proposition 227, see the ruling by California Attorney General Bill Lockyer of February 25, 2000 regarding parental waivers.
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