Amended in Assembly September 3, 2013

Amended in Assembly August 15, 2013

Amended in Assembly August 6, 2013

Senate Bill No. 201

Introduced by Senator Liu

February 7, 2013

An act to amend, repeal, and add Sections 313 and 60810 of, and to add Section 60211 to, the Education Code, relating to instructional materials.

LEGISLATIVE COUNSEL’S DIGEST

SB 201, as amended, Liu. Instructional materials: academic content standards: English learners.

(1) Existing law requires the Superintendent of Public Instruction to review existing tests that assess the English language development of pupils whose primary language is a language other than English, and requires that the tests include, but not be limited to, an assessment of the achievement of these pupils in English reading, speaking, and written skills, in accordance with specified criteria. Existing law requires each school district that has one or more pupils who are English learners, and, to the extent required by federal law, a county office of education and a charter school, to assess the English language development of each of those pupils in order to determine their level of proficiency. Existing law requires the State Department of Education, with the approval of the State Board of Education, to establish procedures for conducting the assessment and for the reclassification of a pupil from English learner to English proficient. Existing law requires a school district to annually conduct the assessment during a period that commences on the day upon which 55% of the instructional year is completed through July 1 of that calendar year.

This bill would apply the above requirements to initial and summative assessments and make conforming changes. The bill would require the Superintendent to determine which assessments, if any, meet specified requirements, and would require the assessments to be used for certain purposes. The bill would require the state board to approve assessment blueprints, assessment performance descriptors, and performance-level cut scores based on standard settings. The bill would require the Superintendent to report to the appropriate policy committees of the Legislature when the assessments are ready for their initial administration. The bill would make the above-described provisions of existing law inoperative when the Superintendent makes this report, and would repeal those provisions the following January 1. The bill, after the Superintendent reports to the appropriate policy committees of the Legislature, would require the summative assessment to be conducted annually during a 4-month period after January 1 determined by the Superintendent with the approval of the state board and the assessment for initial identification to be conducted upon the initial enrollment of a pupil.

(2) Existing law requires the State Board of Education to adopt basic instructional materials for use in kindergarten and grades 1 to 8, inclusive, for governing boards, as specified. Existing law also requires the state board to adopt and approve academic content standards for language arts and for English language development for pupils whose primary language is a language other than English.

This bill would authorize the state board to adopt basic instructional materials for kindergarten and grades 1 to 8, inclusive, that are aligned to those standards for language arts and English language development by no later than November 30, 2015. The bill would, among other things, require the State Department of Education, before conducting an adoption of basic instructional materials for language arts and English language development, to provide notice, as specified, to all publishers or manufacturers that each publisher or manufacturer is required to pay a fee, as specified, to offset the cost of conducting the adoption process.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

(a) It is the intent of the Legislature, in enacting
this act, to continue the implementation of the common core
academic content standards by ensuring the adoption of
instructional materials that are aligned to the common core
academic content standards for language arts and by providing
local educational agencies flexibility in their use of instructional
materials.

(b) It is further the intent of the Legislature that this adoption
of instructional materials will meet the needs of English learners
by requiring alignment of the materials to the English language
development standards adopted pursuant to Section begin delete 60811 end delete begin insert 60811.3,
as it read on June 30, 2013, end insert of the Education Code.

(c) It is further the intent of the Legislature to ensure that school
districts have access to as many high-quality standards-aligned
instructional material options as possible, so that educators may
have as many rigorous options in choosing the best instructional
materials that meet the needs of all pupils, including English
learners and pupils with disabilities, and that ensure that their
pupils are able to master the academic content standards adopted
by the State Board of Education pursuant to Section 60605.8 of
the Education Code.

SEC. 2.  

Section 313 of the Education Code is amended to read:

313.  

(a) Each school district that has one or more pupils who
are English learners, and, to the extent required by federal law,
each county office of education and each charter school, shall
assess the English language development of each pupil in order to
determine the level of proficiency for purposes of this chapter.

(b) The department, with the approval of the state board, shall
establish procedures for conducting the assessment required
pursuant to subdivision (a) and for the reclassification of a pupil
from English learner to English proficient.

(c) Commencing with the 2000-01 school year until subdivision
(d) is implemented, the assessment shall be conducted upon initial
enrollment, and annually, thereafter, during a period of time
determined by the Superintendent and the state board. The annual
assessments shall continue until the pupil is redesignated as English
proficient. The assessment shall primarily utilize the English
language development test identified or developed by the
Superintendent pursuant to Chapter 7 (commencing with Section
60810) of Part 33 of Division 4 of Title 2.

(d) (1) This subdivision shall not be implemented unless and
until the department receives written documentation from the
United States Department of Education that federal law permits
the implementation of the changes set forth in this subdivision or
until the 2013-14 school year, whichever occurs later.

(2) The assessment shall be conducted annually during a period
that commences on the day upon which 55 percent of the
instructional year is completed through July 1 of that calendar
year. Annual assessments shall continue until the pupil is
redesignated as English proficient. The annual assessment shall
primarily utilize the English language development test identified
or developed by the Superintendent pursuant to Chapter 7
(commencing with Section 60810) of Part 33 of Division 4 of Title
2.

(3) The assessment shall be conducted upon the initial
enrollment of a pupil in order to provide information to be used
to determine if the pupil is an English learner.

(A) If the initial enrollment of a pupil occurs on a date outside
of the testing period identified pursuant to paragraph (2), the prior
year’s annual assessment for the grade in which the pupil is
enrolling shall be used for this purpose.

(B) If the initial enrollment of a pupil occurs on a date within
the testing period identified pursuant to paragraph (2), the initial
assessment of the pupil shall be conducted as part of the annual
assessment conducted pursuant to paragraph (2).

(4) Notwithstanding paragraph (2), a school district shall assess
the English language development of a pupil pursuant to this
section no more than one time per school year.

(e) The assessments conducted pursuant to subdivision (d) shall
be conducted in a manner consistent with federal statutes and
regulations.

(f) The reclassification procedures developed by the department
shall utilize multiple criteria in determining whether to reclassify
a pupil as proficient in English, including, but not limited to, all
of the following:

(1) Assessment of language proficiency using an objective
assessment instrument, including, but not limited to, the English
language development test that is developed or acquired pursuant
to Section 60810.

(2) Teacher evaluation, including, but not limited to, a review
of the pupil’s curriculum mastery.

(3) Parental opinion and consultation.

(4) Comparison of the performance of the pupil in basic skills
against an empirically established range of performance in basic
skills based upon the performance of English proficient pupils of
the same age, that demonstrates whether the pupil is sufficiently
proficient in English to participate effectively in a curriculum
designed for pupils of the same age whose native language is
English.

(g) This section does not preclude a school district or county
office of education from testing English learners more than once
in a school year if the school district or county office of education
chooses to do so.

(h) This section shall remain in effect only until the
Superintendent reports to the appropriate policy committees of the
Legislature pursuant to paragraph (2) of subdivision (h) of Section
60810 as added by the chapter that added this subdivision during
the 2013-14 Regular Session, and as of January 1 of the following
year, this section is repealed.

SEC. 3.  

Section 313 is added to the Education Code, to read:

313.  

(a) Each school district that has one or more pupils who
are English learners, and, to the extent required by federal law,
each county office of education and each charter school, shall
assess the English language development of each pupil in order to
determine the level of proficiency for purposes of this chapter.

(b) The department, with the approval of the state board, shall
establish procedures for conducting the assessment required
pursuant to subdivision (a) and for the reclassification of a pupil
from English learner to English proficient.

(c) Commencing with the 2000-01 school year until subdivision
(d) is implemented, the assessment shall be conducted upon initial
enrollment, and annually, thereafter, during a period of time
determined by the Superintendent and the state board. The annual
assessments shall continue until the pupil is redesignated as English
proficient. The assessment shall primarily utilize the English
language development test identified or developed by the
Superintendent pursuant to Chapter 7 (commencing with Section
60810) of Part 33 of Division 4 of Title 2.

(d) (1) This subdivision shall not be implemented unless and
until the department receives written documentation from the
United States Department of Education that federal law permits
the implementation of the changes set forth in this subdivision or
until the 2013-14 school year, whichever occurs later.

(2) The summative assessment shall be conducted annually
during a four-month period after January 1 determined by the
Superintendent with the approval of the state board. Annual
assessments shall continue until the pupil is redesignated as English
proficient. The annual assessment shall primarily utilize the English
language development assessment identified or developed by the
Superintendent pursuant to Chapter 7 (commencing with Section
60810) of Part 33 of Division 4 of Title 2.

(3) The assessment for initial identification shall be conducted
upon the initial enrollment of a pupil in order to provide
information to be used to determine if the pupil is an English
learner.

(A) If the initial enrollment of a pupil occurs on a date outside
of the testing period identified pursuant to paragraph (2), the prior
year’s annual assessment for the grade in which the pupil is
enrolling shall be used for this purpose.

(B) If the initial enrollment of a pupil occurs on a date within
the testing period identified pursuant to paragraph (2), the initial
assessment of the pupil shall be conducted as part of the annual
assessment conducted pursuant to paragraph (2).

(4) Notwithstanding paragraph (2), a school district shall assess
the English language development of a pupil pursuant to this
section no more than one time per school year for each assessment
purpose pursuant to Chapter 7 (commencing with Section 60810)
of Part 33 of Division 4 of Title 2.

(e) The assessments conducted pursuant to subdivision (d) shall
be conducted in a manner consistent with federal statutes and
regulations.

(f) The reclassification procedures developed by the department
shall utilize multiple criteria in determining whether to reclassify
a pupil as proficient in English, including, but not limited to, all
of the following:

(1) Assessment of language proficiency using an objective
assessment instrument, including, but not limited to, the English
language development test that is developed or acquired pursuant
to Section 60810.

(2) Teacher evaluation, including, but not limited to, a review
of the pupil’s curriculum mastery.

(3) Parental opinion and consultation.

(4) Comparison of the performance of the pupil in basic skills
against an empirically established range of performance in basic
skills based upon the performance of English proficient pupils of
the same age, that demonstrates whether the pupil is sufficiently
proficient in English to participate effectively in a curriculum
designed for pupils of the same age whose native language is
English.

(g) This section does not preclude a school district or county
office of education from testing English learners more than once
in a school year if the school district or county office of education
chooses to do so.

(h) This section shall become operative when the Superintendent
reports to the appropriate policy committees of the Legislature
pursuant to paragraph (2) of subdivision (h) of Section 60810 as
added by the chapter that added this subdivision during the
2013-14 Regular Session.

SEC. 4.  

Section 60211 is added to the Education Code, to read:

60211.  

(a) Notwithstanding subdivision (a) of Section 60200
and Section 60200.7, the state board may adopt basic instructional
materials for kindergarten and grades 1 to 8, inclusive, that are
aligned to the language arts content standards adopted pursuant to
Section 60605.8 and the English language development standards
adopted pursuant to Section begin delete 60811 end delete begin insert 60811.3, as it read on June 30,
2013, end insert by no later than November 30, 2015.

(b) For purposes of conducting an adoption of basic instructional
materials pursuant to subdivision (a), all of the following shall
apply:

(1) (A) The department shall provide notice, pursuant to
subparagraph (B), to all publishers or manufacturers known to
produce basic instructional materials in language arts and English
language development, post an appropriate notice on its Internet
Web site, and take other reasonable measures to ensure that
appropriate notice is widely circulated to potentially interested
publishers and manufacturers.

(B) The notice provided pursuant to subparagraph (A) shall
specify that each publisher or manufacturer choosing to participate
in the adoption shall be assessed a fee based on the number of
programs the publisher or manufacturer indicates will be submitted
for review and the number of grade levels proposed to be covered
by each program.

(2) The department, before incurring substantial costs for the
adoption, shall require that a publisher or manufacturer that wishes
to participate in the adoption first declare the intent to submit one
or more specific programs for adoption and specify the specific
grade levels to be covered by each program.

(3) After a publisher or manufacturer has declared the intent to
submit one or more programs and the grade levels to be covered
by each program, the department shall assess a fee that shall be
payable by the publisher or manufacturer even if the publisher or
manufacturer subsequently chooses to withdraw a program or
reduce the number of grade levels covered.

(4) The fee assessed pursuant to paragraph (3) shall be in an
amount that does not exceed the reasonable costs to the department
in conducting the adoption process. The department shall take
reasonable steps to limit costs of the adoption and to keep the fee
modest.

(5) A submission by a publisher or manufacturer shall not be
reviewed for purposes of adoption until the fee assessed pursuant
to paragraph (3) has been paid in full.

(6) (A) Upon the request of a small publisher or small
manufacturer, the state board may reduce the fee for participating
in the adoption.

(B) For purposes of this section, “small publisher” and “small
manufacturer” mean an independently owned or operated publisher
or manufacturer that is not dominant in its field of operation and
that, together with its affiliates, has 100 or fewer employees, and
has average annual gross receipts of ten million dollars
($10,000,000) or less over the previous three years.

(7) If the department determines that there is little or no interest
in participating in an adoption by publishers and manufacturers,
the department shall recommend to the state board whether or not
the adoption shall be conducted, and the state board may choose
not to conduct the adoption.

(8) Revenue derived from fees assessed pursuant to paragraph
(3) shall be budgeted as reimbursements and subject to review
through the annual budget process, and may be used to pay for
costs associated with any adoption and for any costs associated
with the review of instructional materials, including reimbursement
of substitute costs for teacher reviewers and may be used to cover
stipends for content review experts.

SEC. 5.  

Section 60810 of the Education Code is amended to
read:

60810.  

(a) (1) The Superintendent shall review existing tests
that assess the English language development of pupils whose
primary language is a language other than English. The tests shall
include, but not be limited to, an assessment of achievement of
these pupils in English reading, speaking, and written skills. The
Superintendent shall determine which tests, if any, meet the
requirements of subdivisions (b) and (c). If any existing test or
series of tests meets these criteria, the Superintendent, with
approval of the state board, shall report to the Legislature on its
findings and recommendations.

(2) If no suitable test exists, the Superintendent shall explore
the option of a collaborative effort with other states to develop a
test or series of tests and share test development costs. If no suitable
test exists, the Superintendent, with approval of the state board,
may contract to develop a test or series of tests that meets the
criteria of subdivisions (b) and (c) or may contract to modify an
existing test or series of tests so that it will meet the requirements
of subdivisions (b) and (c).

(3) The Superintendent and the state board shall release a request
for proposals for the development of the test or series of tests
required by this subdivision. The state board shall select a
contractor or contractors for the development of the test or series
of tests required by this subdivision, to be available for
administration during the 2000-01 school year.

(4) The Superintendent shall apportion funds appropriated to
enable school districts to meet the requirements of subdivision (d).
The state board shall establish the amount of funding to be
apportioned per test administered, based on a review of the cost
per test.

(5) An adjustment to the amount of funding to be apportioned
per test is not valid without the approval of the Director of Finance.
A request for approval of an adjustment to the amount of funding
to be apportioned per test shall be submitted in writing to the
Director of Finance and the chairpersons of the fiscal committees
of both houses of the Legislature with accompanying material
justifying the proposed adjustment. The Director of Finance is
authorized to approve only those adjustments related to activities
required by statute. The Director of Finance shall approve or
disapprove the amount within 30 days of receipt of the request and
shall notify the chairpersons of the fiscal committees of both houses
of the Legislature of the decision.

(b) (1) The test or series of tests developed or acquired pursuant
to subdivision (a) shall have sufficient range to assess pupils in
grades 2 to 12, inclusive, in English listening, speaking, reading,
and writing skills. Pupils in kindergarten and grade 1 shall be
assessed in English listening and speaking, and, once an assessment
is developed, early literacy skills. The early literacy assessment
shall be administered for a period of four years beginning after the
initial administration of the assessment or until July 1, 2014,
whichever occurs first. Six months after the three administered
assessments are collected, but no later than June 30, 2013, the
department shall report to the Legislature on the administration of
the kindergarten and grade 1 early literacy assessment results, as
well as on the administrative process, in order to determine whether
reauthorization of the early literacy assessment is appropriate.

(2) In the development and administration of the assessment
for pupils in kindergarten and grade 1, the department shall
minimize any additional assessment time, to the extent possible.
To the extent that it is technically possible, items that are used to
assess listening and speaking shall be used to measure early literacy
skills. The department shall ensure that the test and procedures for
its administration are age and developmentally appropriate. Age
and developmentally appropriate procedures for administration
may include, but are not limited to, one-on-one administration, a
small group setting, and orally responding or circling a response
to a question.

(c) The test or series of tests shall meet all of the following
requirements:

(1) Provide sufficient information about pupils at each grade
level to determine levels of proficiency ranging from no English
proficiency to fluent English proficiency with at least two
intermediate levels.

(2) Have psychometric properties of reliability and validity
deemed adequate by technical experts.

(3) Be capable of administration to pupils with any primary
language other than English.

(4) Be capable of administration by classroom teachers.

(5) Yield scores that allow comparison of the growth of a pupil
over time, can be tied to readiness for various instructional options,
and can be aggregated for use in the evaluation of program
effectiveness.

(6) Not discriminate on the basis of race, ethnicity, or gender.

(7) Be aligned with the standards for English language
development adopted by the state board pursuant to Section 60811.

(8) Be age and developmentally appropriate for pupils.

(d) The test shall be used for the following purposes:

(1) To identify pupils who are limited English proficient.

(2) To determine the level of English language proficiency of
pupils who are limited English proficient.

(3) To assess the progress of limited-English-proficient pupils
in acquiring the skills of listening, reading, speaking, and writing
in English.

(e) (1) A pupil in any of grades 3 to 12, inclusive, shall not be
required to retake those portions of the test that measure English
language skills for which he or she has previously tested as
advanced within each appropriate grade span, as determined by
the department in accordance with paragraph (8) of subdivision
(c).

(2) Notwithstanding paragraph (1), a pupil in any of grades 10
to 12, inclusive, shall not be required to retake those portions of
the test that measure English language skills for which he or she
has previously tested as early advanced or advanced.

(3) This subdivision shall not be implemented until the test
publisher’s contract that is in effect on January 1, 2012, expires.

(4) This subdivision shall not be implemented unless and until
the department receives written documentation from the United
States Department of Education that implementation is permitted
by federal law.

(f) This section shall remain in effect only until the
Superintendent reports to the appropriate policy committees of the
Legislature pursuant to paragraph (2) of subdivision (h) of Section
60810 as added by the chapter that added this subdivision during
the 2013-14 Regular Session, and as of January 1 of the following
year, this section is repealed.

SEC. 6.  

Section 60810 is added to the Education Code, to read:

60810.  

(a) (1) The Superintendent shall review existing
assessments that assess the English language development of pupils
whose primary language is a language other than English. The
assessment for initial identification and the summative assessment
shall include, but not be limited to, an assessment of achievement
of these pupils in English reading, speaking, and written skills.
The Superintendent shall determine which assessments, if any,
meet the requirements of subdivisions (b) to (f), inclusive. If any
existing assessment or series of assessments meets these criteria,
the Superintendent, with approval of the state board, shall report
to the Legislature on its findings and recommendations.

(2) If no suitable assessment exists, the Superintendent shall
explore the option of a collaborative effort with other states to
develop an assessment or series of assessments and share
assessment development costs. If no suitable assessment exists,
the Superintendent, with the approval of the state board, shall either
release a request for proposals for the development of an
assessment or series of assessments that meets the criteria of
subdivisions (b) to (f), inclusive, or contract to modify an existing
assessment or series of assessments so that it will meet the
requirements of subdivisions (b) to (f), inclusive. The state board
shall approve assessment blueprints, assessment performance
descriptors, and performance-level cut scores based on standard
settings.

(3) The Superintendent shall apportion funds appropriated to
enable school districts to meet the requirements of subdivisions
(c) and (d). The state board shall establish the amount of funding
to be apportioned per assessment administered, based on a review
of the cost per assessment for initial identification and summative
assessment purposes.

(4) An adjustment to the amount of funding to be apportioned
per assessment is not valid without the approval of the Director of
Finance. A request for approval of an adjustment to the amount
of funding to be apportioned per assessment shall be submitted in
writing to the Director of Finance and the chairpersons of the fiscal
committees of both houses of the Legislature with accompanying
material justifying the proposed adjustment. The Director of
Finance is authorized to approve only those adjustments related
to activities required by statute. The Director of Finance shall
approve or disapprove the amount within 30 days of receipt of the
request and shall notify the chairpersons of the fiscal committees
of both houses of the Legislature of the decision.

(b) (1) The assessment or series of assessments developed or
acquired pursuant to subdivision (a) shall have sufficient range to
assess pupils in grades 2 to 12, inclusive, in English listening,
speaking, reading, and writing skills. Pupils in kindergarten and
grade 1 shall be assessed in English listening and speaking, and,
once an assessment is developed, early literacy skills. Six months
after the results of three administrations are collected, but no later
than June 30, 2013, the department shall report to the Legislature
on the administration of the kindergarten and grade 1 early literacy
assessment results, as well as on the administrative process, in
order to determine whether reauthorization of the early literacy
assessment is appropriate.

(2) In the development and administration of the assessment
for pupils in kindergarten and grade 1, the department shall
minimize any additional assessment time, to the extent possible.
To the extent that it is technically possible, items that are used to
assess listening and speaking shall be used to measure early literacy
skills. The department shall ensure that the assessment and
procedures for its administration are age and developmentally
appropriate. Age and developmentally appropriate procedures for
administration may include, but are not limited to, one-on-one
administration, a small group setting, and orally responding or
circling a response to a question.

(3) The assessment for initial identification developed or
acquired pursuant to subdivision (a) shall have sufficient range to
identify if the pupil is an English learner, as defined by Section
306.

(c) The assessment for initial identification shall meet all of the
following requirements:

(1) Have psychometric properties of reliability and validity
deemed adequate by technical experts.

(2) Be capable of administration to pupils with any primary
language other than English.

(3) Be capable of administration by classroom teachers.

(4) Not discriminate on the basis of race, ethnicity, or gender.

(5) Be aligned with the standards for English language
development adopted by the state board pursuant to Section
60811.3 begin insert , as it read on June 30, 2013 end insert .

(6) Be age and developmentally appropriate for pupils.

(d) The assessment for initial identification shall be used to
identify pupils who are limited English proficient.

(e) The summative assessment shall meet all of the following
requirements:

(1) Provide sufficient information about pupils at each grade
level to determine levels of proficiency ranging from no English
proficiency to fluent English proficiency with at least two
intermediate levels.

(2) Yield scores that allow comparison of the growth of a pupil
over time, that may be tied to readiness for various instructional
options, and that may be aggregated for use in the evaluation of
program effectiveness.

(3) Have psychometric properties of reliability and validity
deemed adequate by technical experts.

(4) Be capable of administration to pupils with any primary
language other than English.

(5) Be capable of administration by classroom teachers.

(6) Not discriminate on the basis of race, ethnicity, or gender.

(7) Be aligned with the standards for English language
development adopted by the state board pursuant to Section
60811.3 begin insert , as it read on June 30, 2013 end insert .

(8) Be age and developmentally appropriate for pupils.

(f) The summative assessment shall be used for both of the
following purposes:

(1) To identify the level of English language proficiency of
pupils who are limited English proficient.

(2) To assess the progress of limited-English-proficient pupils
in acquiring the skills of listening, reading, speaking, and writing
in English.

(g) (1) A pupil in any of grades 3 to 12, inclusive, shall not be
required to retake those portions of the assessment that measure
English language skills for which he or she has previously tested
as advanced within each appropriate grade span, as determined by
the department in accordance with paragraph (8) of subdivision
(e).

(2) Notwithstanding paragraph (1), a pupil in any of grades 10
to 12, inclusive, shall not be required to retake those portions of
the assessment that measure English language skills for which he
or she has previously tested as early advanced or advanced.

(3) This subdivision shall not be implemented unless and until
the department receives written documentation from the United
States Department of Education that implementation is permitted
by federal law.

(h) (1) The Superintendent shall not administer an assessment
for initial identification or a summative assessment pursuant to
this section until both assessments are developed and adopted by
the state board.

(2) The Superintendent shall report to the appropriate policy
committees of the Legislature when the assessments are ready for
their initial administration.