BILL ANALYSIS Ó
AB 2785
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON EDUCATION
Patrick O'Donnell, Chair
AB 2785
(O'Donnell) - As Amended April 7, 2016
SUBJECT: Special education: English learners: manual
SUMMARY: Requires the California Department of Education (CDE)
to develop a manual providing guidance to local educational
agencies (LEAs) on identifying and supporting English learners
(ELs) with disabilities. Specifically, this bill:
1)Requires, on or before July 1, 2018, the CDE to develop a
manual providing guidance to LEAs on identifying and
supporting ELs who qualify for special education services.
2)States that the goal of the manual is to provide state
guidance to educators on the identification and support of ELs
with disabilities and to promote a collaborative approach
among teachers, school administrators, other personnel, and
parents in determining the most appropriate academic
placements and supports for these pupils.
3)Requires CDE, in developing the manual, to review manuals
produced on this topic by other states, and consult with a
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stakeholder group comprised of experts and practitioners who
have expertise or experience in either special education,
English learner education, or both.
4)Requires the manual to include all of the following topics:
a) guidance for accurately identifying English learners
with disabilities, including guidance on avoiding the
over-identification and under-identification of these
students
b) information on second language acquisition and progress
c) a sample prereferral or intervention program
d) guidance on referral processes
e) guidance on the use of assessments, including the use of
multiple measures as well as assessment accommodations for
both language and disability
f) guidance on the development of individualized education
programs for English learners
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g) guidance on how to support the language and content
learning needs of English learners with disabilities,
including how to do so in inclusive settings
h) information on the role of culture and acculturation
i) guidance for working with families, including guidance
on meeting the needs of nonnative English speakers in
special education proceedings
j) a sample plan for continuous evaluation and systemic
review, including guidance on tracking effectiveness and
sharing information between special education and English
learner programs within LEAs, to the extent permitted under
state and federal law
aa) laws and regulations related to the rights of English
learners and pupils with disabilities.
1)Requires that the manual be written for ease of use by
educators and that it include graphic organizers and other
helpful features such as flowcharts, checklists, sample forms,
and case examples.
2)Requires the CDE, with input from the stakeholder group, to
develop a plan for dissemination of the manual and providing
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professional development on the content of the manual.
Requires that the plan address how LEAs can collaborate with
the CDE in meeting both of these objectives.
3)Requires that the plan be submitted to the State Board of
Education (SBE), the Department of Finance, the Legislative
Analyst's Office, and the appropriate policy and fiscal
committees of the Legislature on or before July 1, 2018.
4)States the intent of the Legislature that this project be
funded with federal funds, to the extent permissible.
EXISTING LAW:
1)Federal law prohibits a determination that a student is
eligible for special education if the determining factor is
limited English proficiency.
2)Federal law requires that an individualized education program
(IEP) team, in the case of an English learner, consider the
language needs of the student as such needs relate to his or
her IEP.
3)Federal law requires the CDE to report annually to the federal
government on the number of students with disabilities,
including the number who have disabilities, and the incidence
and duration of disciplinary actions by race, ethnicity, and
limited English proficiency status.
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4)Federal law authorizes state agencies to use the
administrative portion of federal special education funds for,
among other things, providing training to personnel in meeting
the needs of English learners, and working with families of
English learners, in order to "ensure appropriate
identification of students who may be eligible for special
education services, and to prevent the misidentification, in
appropriate overidentification, or underidentification of
children as having a disability, especially minority and
limited English proficient children."
5)Federal law authorizes federal grants to states for the
purpose of ensuring appropriate placements and services for
all students and to reduce disproportionality in eligibility,
placement, and disciplinary actions for minority and limited
English proficient students.
6)State and federal law require LEAs to take any action
necessary to ensure that in an IEP team meeting the parent or
guardian understands the proceedings at a meeting, including
arranging for an interpreter for parents or guardians whose
native language is a language other than English.
7)State and federal law defines "consent" in special education
proceedings as situations in which the parent or guardian has
been fully informed of all information relevant to the
activity for which consent is sought, in his or her native
language, or other mode of communication. State and federal
law also require that proposed assessment plans be provided to
parents "in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not
feasible to do so."
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8)Title VI of the federal Civil Rights Act of 1964 prohibits
recipients of federal financial assistance, including school
districts, from discriminating on the basis of race, color, or
national origin. Title VI's prohibition on national origin
discrimination requires school districts to take "affirmative
steps" to address language barriers so that EL students may
participate meaningfully in schools' educational programs.
9)The federal Every Student Succeeds Act (ESSA), signed into law
in 2015, requires states to report on number and percentage of
ELs 1) meeting state-determined long-term goals, disaggregated
by disability, 2) attaining English proficiency, 3) meeting
challenging state academic standards for 4 years after
exiting, disaggregated by disability, and 4) who have not
attained proficiency within 5 years of classification
FISCAL EFFECT: Unknown
COMMENTS:
Need for the bill. The author states, "The inappropriate
identification of English learners for special education
services is a long-standing problem, with serious consequences
for student learning.
Research indicates that this problem, first identified in the
1960's, persists today. For example, while overall 10% of
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California students qualify for special education services,
14.4% of English learners qualify for these services.
California has an above average percentage of English learners
in special education relative to other states, and 35% of all
English learners in special education in the country.
There is wide recognition this is a dual problem: the
over-identification and under-identification of English
learners for special education services. Students may be
mistakenly identified as requiring special education services
when their language learning needs are mistaken for a
disability. Conversely, English learners may be prevented from
receiving needed special education services when disabilities
are mistaken for language learning needs. Both problems can
result in inappropriate placements and services which hold
students back from academic progress.
Research indicates that at the heart of this problem are
modifiable factors, such as a lack of understanding of language
acquisition, unfamiliarity with best practices for serving
English learners with disabilities, poorly designed and
implemented referral processes, and lack of coordination
between English learner and special education programs.
The identification, assessment, and instruction of English
learners who may qualify for special education services
involves complex and interrelated processes, but no state
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guidance currently exists to guide educators in this area.
AB 2785 directs the California Department of Education, in
consultation with a group of experts and practitioners, to
develop a manual to support educators on evidence-based
practices for the identification, assessment, and instruction of
English learners who have disabilities. Several other states
have provided this kind of support to their educators, and it is
supported by the federal government. There is broad
acknowledgement that this kind of guidance would be a highly
useful tool in serving these students."
Long-standing concerns about over/under identification of
English learners for special education. The inappropriate
identification of English learners for special education has
been a concern since at least the 1960's. Below is an attempt
at a summary of relevant research, litigation, and policy
related to this issue:
1960's: An article (Dunn, 1968) questioning the high rate of
students of color and English learners in special education
classes sparked a civil rights debate about disproportionate
enrollment in special education. Research on the demographics
of special education enrollment in Riverside, California,
begun in the 1960's and ultimately published in 1973 found
that black and Spanish-surnamed children were overidentified
for special education. It found that among children scoring
at low levels on IQ tests, Spanish-surnamed and low income
students were more likely to be placed in special classes, and
that 81% of students placed in special classes never returned
to mainstream programs.
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1970's: In the 1970 Diana v. California State Board of
Education case, the court reviewed the case of nine Mexican
American students placed in classes for "mentally retarded"
students on the basis of I.Q. scores. After being retested
bilingually, the students' scores no longer fell within the
disabled range. The case was settled out of court, and the
settlement required testing in students' home language in the
assessment process. Also in 1970 the U.S. Office of Civil
Rights issued a memorandum stating that school districts "must
not assign national origin, minority group students to classes
for the mentally retarded on the basis of criteria which
essentially measure or evaluate English language skills."
1980's: The U.S. Department of Education Office of Civil
Rights (OCR) began to produce estimates of the extent and
distribution of disproportionality in special education, which
was found to be consistent over time. In response to the 1974
Lau v. Nichols Supreme Court decision, bilingual programs grew
in number. According to a report published by the U.S.
Department of Education, "in an almost complete turnaround
from the days in which discriminatory overrepresentation of
minority language youngsters in special education classes was
the issue, there emerged a concern that minority language
youngsters who also needed special education were not being
appropriately screened or placed."
1990's: The federal IDEA reauthorization of 1997 required
that states collect data for the purpose of monitoring and
reducing disproportionality in special education, and as
appropriate provide for the revision of policies, procedures
and practices used in such identification. Proposition 227 of
1998 dramatically reduced the number of bilingual education
programs operating in California schools.
2000's: The federal IDEA reauthorization of 2004 expanded
requirements for the monitoring of disproportionality,
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requiring that states have policies and procedures in place to
prevent inappropriate identification by race or ethnicity, and
requiring LEAs with significant disproportionality to devote
the maximum amount of Part B funds allowable (15%) to early
intervening programs. Disproportionality research began to
focus on the forces that shape and maintain disproportionate
representation.
2010's: The 2015 federal Every Student Succeeds Act (ESSA)
included new requirements to report on number and percentage
of ELs, disaggregated by disability, who meet state-determined
long-term goals and state academic standards, for 4 years
after being reclassified. In 2015 the U.S. Department of
Education also called on states to create guidance on English
learners and special education for school districts (see
below). A proposed federal rule (now pending) would also
standardize the methodology states must use to determine
whether significant disproportionality based on race and
ethnicity is occurring in the state and its LEAs, and require
that LEAs identify and address the factors contributing to
significant disproportionality. An initiative on the
November, 2016 ballot proposes to repeal parts of Proposition
227, expanding bilingual program options for students.
California English learners identified at far higher rate than
non-English learners; state has above average rate nationally.
Research on English learners and special education
identification in California shows that:
According to the CDE, while 10% of California students
qualify for special education services, 9.1% of English
proficient students and 14.4% of English learners qualify
for these services. This indicates that ELs are
identified for special education services at a rate that
is 60% higher than for non-ELs.
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According to the CDE, approximately 1% of English
learners were provided test accommodations on the
California Standards Tests in 2009. This rate declined
from about 2% in 2006.
California has an above average percentage of English
learners in special education compared to other states.
Data reported by OCR indicate that in 2011-12 California
identified 13.3% of English learners, compared to a
national average rate of 11.9%. OCR data also show that
California enrolls 35% of all English learners in special
education in the country.
Research indicates that, of California students
identified for special education, English learners are
overrepresented in certain disability categories,
particularly intellectual disability, learning
disabilities, and speech and language impairment.
Older research (2000) indicates that California ELs
receiving the least language support were more likely to
be placed in special education programs, and that students
receiving all of their instruction in English were three
times as likely to be identified for special education
services than those receiving some primary language
support.
Research suggests that before fifth grade California ELs
are underidentified, and are overidentified in the
secondary grades.
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The key issues: language, intervention, referral, assessment,
instruction. What are the causes of this long-standing problem?
The research points to some key issues, most significantly:
Inability to distinguish between a language learning
need and a disability. Educators often face challenges
determining whether a student's difficulty progressing
academically is a result of a disability or a language
barrier. For example, in the area of English language
arts, teachers may confuse the signs of learning
disabilities with the development of pronunciation, syntax,
or semantic development. Educators may also be hesitant to
refer a student with a possible disability until their
English proficiency improves. Research has identified this
challenge as a key factor in both the overidentification
and underidentification of English learners for special
education services.
Insufficient use of assessment accommodations.
Assessment accommodations, such as primary language
support, English language reference materials, and the
option for oral response in English are a few of the ways
in which educators can get a more accurate picture of an
ELs abilities. Research suggests that overreliance on
standardized tests to identify ELs with learning
disabilities results in underidentification in the early
elementary grades and overidentification in the subsequent
grades. The use of accommodations is viewed as a critical
part of the accurate identification of ELs for special
education services, but as noted above, in 2009 only 1%
California's ELs were provided language accommodations on
state assessments.
Poorly designed and implemented referral strategies. In
a 2015 report the Regional Educational Laboratory West
(WestEd) identified poorly designed and implemented
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referral strategies as a major barrier to accurate
identification and appropriate services for ELs. They note
an absence of systematic referral processes for ELs in
which, for example, educators know when and under which
circumstances to refer, student study teams have protocols
for review of multiple and extrinsic factors, and
administrators have established processes for
interpretation and translation for parents in special
education proceedings. Another such issue, the makeup of
IEP teams, was highlighted in a 2015 report by Policy
Analysis for California Education (PACE), which noted that
referral teams should include EL specialists and special
education specialists who are trained to assess EL
students.
Lack of intervention strategies. Early intervention can
reduce referrals for special education services, and
strategies such as response to intervention (a multi-tiered
structure of increasingly intensive and focused
instruction, assessment, and intervention) are increasingly
employed by schools. Some schools also use pre-referral
strategies such as a child study team to make instructional
modifications and provide supports before a student is
referred for assessment. But research indicates that the
absence of consistent intervention strategies remains an
issue in the identification and instruction of ELs with
disabilities.
Inappropriate instructional practices. ELs with
disabilities require specialized instruction in order to
progress academically both prior to referral and after
qualifying for services. But research indicates that
educators have difficulty providing consistent, adequate
services to ELs with disabilities, in part due to gaps in
skills required to meet both sets of needs. Research also
points to lack of consistent monitoring of student progress
across EL and special education systems.
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These and other topics, such as strategies for working with
families and guidance on the development of IEPs, are required
to be included in the manual proposed by this bill.
What works to address concerns about English learners and
special education? In 2015 WestEd published a review of
guidelines and protocols used by the 20 states with the largest
populations of ELs, and identified five guiding principles
states should have in place to meet the needs of EL students
with disabilities:
Have a clear policy statement that additional
considerations will be used in placing EL students in
special education programs
Provide test accommodations for EL students
Employ exit criteria for English language support
programs for EL students in special education
Assess EL students' language and disability needs using
a response to intervention approach
Provide publicly available manuals to aid educators in
identifying and supporting EL students who have learning
disabilities
Other states provide guidance to educators. This bill requires
the CDE to develop a manual to guide educators in evidence-
based practices for supporting English learners who may have
disabilities, and requires that in doing so the CDE review
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manuals produced by other states.
Five other states (Connecticut, Illinois, Michigan Minnesota,
and Virginia) have produced extensive, publicly available
manuals to aid educators in identifying and supporting ELs with
disabilities. According to research from the WestEd Regional
Educational Laboratory, these manuals include, to a greater or
lesser extent:
information on second language acquisition and progress
guidance on assessments
professional development programs for educators
information on the role of culture/acculturation
sample pre-referral or intervention program
plan for continuous evaluation/systemic review
laws and regulations related to the rights of ELs and
students with disabilities
guidance for working with families
Some resources on these topics exist in different forms. The
California Special Education Local Plan Area administrators have
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produced a resource book on English learners and special
education titled, "Meeting the Needs of English Learners with
Disabilities." San Diego Unified School District produces a
manual titled, "CEP-EL: A Comprehensive Evaluation Process for
English Learners" (see below). The Council of Chief State
School Officers has produced guidance on the use of
accommodations for English learners titled "How to Select,
Administer, and Evaluate Use of Accommodations for Instruction
and Assessment of English Language Learners with Disabilities."
And the U.S. Department of Education includes some information
in its "English Learner Toolkit" (see below). In the 1997 the
CDE produced a publication titled, "Guidelines for Language,
Academic, and Special Education Services Required for
Limited-English Proficient Students in California Public
Schools, K-12" which covers a broader set of topics, but it is
out-of-date and no longer available.
Federal government recommends that states provide guidance to
school districts. In 2015 the U.S. Department of Education
issued an English Learner Toolkit. The toolkit includes
information on English learners with disabilities, and
recommends:
"States should create a comprehensive policy for ELs
with exceptionalities?based on current research followed by
extensive guidance to localities."
"States should consider developing policies that require
and set parameters for communication and collaboration
between EL and special education professionals at the point
of entry to and exit from special education as well as
during the monitoring process while students are being
served in special education."
SBAC accommodations for English learners. Research has
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established that test accommodations allow ELs to better
demonstrate their true level of proficiency in academic content.
For example, a 2010 study found that simplifying the language
on standardized math test items - while not changing the math
knowledge being assessed - made it easier for ELs to provide a
more accurate assessment of their math skills. As noted above,
however, 1% of ELs were provided accommodations on state
assessments in 2009.
The new computer-based Smarter Balanced Assessment Consortium
(SBAC) assessment offers new opportunities for educators to
offer test accommodations for both English learners and students
with disabilities. Accommodations are built into the
computer-based system, and are easier for educators to access
than the prior pencil-and-paper system. SBAC accommodations for
ELs include stacked Spanish translations, glossaries provided in
10 languages and several dialects, as well as translated test
directions in 19 languages. Accommodations for students with
disabilities include Braille and closed captioning.
San Diego Unified School District provides guidance to
educators. The San Diego Unified School District has taken
affirmative steps to address the reportedly long-standing
problem of the overidentification of English learners in special
education in that district.
These reforms were prompted by two reviews of the district's
special education program. A 2007 study found that ELs were
disproportionately identified, and that Latino ELs were found to
be 70% more likely to be identified than their Latino non-EL
peers. A 2009 study found patterns of earlier identification,
placement in more restrictive settings, limited primary language
assessments, and few extrinsic factors reflected in evaluations.
This study noted a lack of systemic policies and procedures in
this area.
In 2012 the district published a manual, titled "CEP-EL: A
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Comprehensive Evaluation Process for English Learners," which
provides guidance on best practices prior to and after a
referral, including guidance on the assessment process. It
includes an action plan, with numerous tools to aid educators,
such as questionnaires, observation checklists, and skills
rating scales. The district also provided professional
development for educators on the content of the manual.
Special Education Task Force report. In 2015, California's
Statewide Task Force on Special Education (a joint effort
between the CDE, the State Board of Education, and the
Commission on Teacher Credentialing) released a report titled,
"One System: Reforming Education to Serve ALL Students." The
Task Force was charged with identifying the reasons why students
in special education are not more successful and what must be
changed in policy and practice to change it. The Task Force did
not directly address issues specific to the identification,
assessment, and support of students with disabilities, but did
comment: "Children with a disability who are also English
language learners become caught between systems because there is
not enough support for both intensive language and special
education services. Ultimately, this dilemma forces an IEP team
to make a 'Sophie's choice:' in which area will a student
receive support, and in which area not? Either option promises
poor outcomes for the student."
ESSA and a proposed new federal rule on disproportionality. The
federal Every Student Succeeds Act (ESSA), signed into law in
2015, requires states to report on number and percentage of ELs
1) meeting state-determined long-term goals, disaggregated by
disability, 2) attaining English proficiency, 3) meeting
challenging state academic standards for 4 years after exiting,
disaggregated by disability, and 4) who have not attained
proficiency within 5 years of classification.
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In addition, a proposed federal rule (now pending) would also
standardize the methodology states must use to determine whether
significant disproportionality based on race and ethnicity is
occurring in the state and its LEAs, clarify requirements for
the review and revision of policies, practices, and procedures
when significant disproportionality is found, and require that
LEAs identify and address the factors contributing to
significant disproportionality as part of comprehensive
coordinated early intervening services.
Related legislation. AB 2091 (Lopez) of this Session requires
LEAs to provide parents with translated copies of a student's
IEP and related documents within 30 days of an IEP meeting, and
requires that the documents be translated by a qualified
interpreter.
AB 2350 (O'Donnell) of this Session prohibits ELs in middle and
high school from being prevented from enrolling in core
curriculum courses and courses required for graduation, requires
that courses designed for long term English learners be offered
for graduation credit, and requires the CDE to create a
video-based professional development series on integrated and
designated ELD.
Recommended amendments. Staff recommends the following
amendments to this bill:
1. Clarify the terms "English learner" and "student with
disabilities" to include students who may be identified as
ELs, and to include students with low incidence
disabilities.
2. Change the dates by which the manual and professional
development plan must be completed.
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3. Specify that the manual will include guidance on primary
language assessments and primary language instruction and
placement for students who are identified as requiring
special education services.
4. Encourage, rather than require, certain design features
of the manual.
5. Add to the list of agencies to which the professional
development plan would be sent.
6. Other technical and clarifying changes.
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REGISTERED SUPPORT / OPPOSITION:
Support
Association of California School Administrators
California Association for Bilingual Education
California State Council on Developmental Disabilities
Californians Together
Los Angeles Unified School District
Riverside County Superintendent of Schools
Special Education Local Plan Area Administrators of California
Opposition
None received
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Analysis Prepared by:Tanya Lieberman / ED. / (916) 319-2087