BILL ANALYSIS Ó
AB 2785
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CONCURRENCE IN SENATE AMENDMENTS
AB
2785 (O'Donnell)
As Amended August 1, 2016
Majority vote
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|ASSEMBLY: |80-0 |(May 31, 2016) |SENATE: |39-0 |(August 17, |
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Original Committee Reference: ED.
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.
The Senate amendments:
1)Make implementation of the professional development plan
contingent upon an appropriation for that purpose in the
annual Budget Act or other statute.
2)Requires that the manual address the identification and
support of students with disabilities who may later be
classified as English learners.
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3)Require that the manual address means of ensuring that English
learners with disabilities have access to instruction in the
core curriculum.
4)Make technical and clarifying changes.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)Contract for manual: CDE indicates that it would contract for
the development of the manual for such activities as
subcontracting with experts, compiling and analyzing resources
from other states, conducting stakeholder meetings, printing
necessary materials, filming stakeholder meetings, and travel.
The total amount of the contract is anticipated to be
$450,000 to cover the period from January 1, 2017 to July 1,
2018. (Federal funds)
2)Contract monitoring: In addition, the CDE cites the need for
one limited-term position until July 1, 2018 at a cost of
$229,000 to oversee the contract and to act as the liaison
with the EL Division within the department. (Federal funds)
3)Manual Implementation: This bill requires the state and LEAs
to collaborate in meeting the objectives of disseminating the
manual and providing professional development on its contents.
This creates a cost pressure to implement this plan which the
CDE indicates would result in ongoing costs of $154,000 for
one position to provide training and technical assistance to
LEAs. However, staff notes that the need for this activity is
likely to diminish over time. In addition, this creates a
local and state cost pressure to fund professional development
and other activities necessary to implement the guidance in
the manual. Staff notes that the bill makes implementation of
that guidance contingent upon funding provided for that
purpose.
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4)The CDE indicates that one-time and ongoing federal special
education carryover funds would be available to support its
activities required by this bill. This would require approval
through the annual budget process to ensure the availability
of funds and a subsequent increase the CDE's federal fund
spending authority.
COMMENTS:
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 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 [intelligence quotient] 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. In
a 1969 report by the President's Committee on Mental
Retardation entitled "The Six Hour Retarded Child," the CDE
reported that Spanish-surnamed children were three times more
likely to be identified for special education as their peers.
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"
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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. [United States]
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 [Individuals with Disabilities
Education Act] 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,
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
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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 four 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.
Disproportionate representation of English learners in special
education in California. Research on English learners and
special education identification in California shows that:
1)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 qualified
for these services in 2014-15. This indicates that ELs are
identified for special education services at a rate that is
60% higher than for non-ELs.
2)Data from the CDE suggest the underidentification of ELs for
special education in the early grades. In 2014-15 English
learners were identified for special education at a slightly
lower rate in the early grades. In first grade 7.7% of ELs
vs. 7.9% of non-ELs were identified as requiring special
education services, and in second grade the rates were 8.6%
for ELs vs. 9.0% for non-ELs.
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3)Data from the CDE also show that beginning in the third grade
the identification rate for ELs becomes increasingly
disproportionate, and by the secondary grades the percentage
of ELs in special education rises to very high levels. By
grade seven the rate of ELs in special education is more than
two and half times that of non-ELs (23.0% vs. 9.1% for
non-ELs), and by grade 12, 26.2% of ELs are in special
education, compared to 9.9% of non-ELs. In grade twelve this
represents an EL identification rate of nearly 2.7 times that
of their non-EL peers.
4)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.
5)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.
6)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.
7)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.
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The key issues: language, reclassification, intervention,
referral, assessment, instruction. What are the causes of this
long-standing problem? The research points to some key issues,
most significantly:
1)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.
2)Poor reclassification practices. As noted above, the
percentage of ELs in special education increases through the
grades, becoming increasingly disproportionate relative to
non-ELs, especially in the secondary grades. For some
students with disabilities this is likely due to their
inability - due to their disability - to meet one of the
criteria for reclassification: proficiency in English
language arts. The manual for the California English Language
Development Test (CELDT) states that "students with
disabilities?are to be provided with the same opportunity to
be reclassified as students without disabilities." This
guidance also 1) states that multiple criteria may be used in
concert with the four reclassification criteria authorized in
statute, and 2) authorizes Individualized Education Program
(IEP) teams to determine appropriate measures of English
proficiency which would be equivalent to an English-proficient
peer with similar disabilities. But based on the above data
showing significant disproportionality in the secondary grades
it would appear that these authorizations are not effectively
or consistently used.
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3)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 EL's 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.
4)Poorly designed and implemented referral strategies. In a
2015 report the Regional Educational Laboratory West (WestEd)
identified poorly designed and implemented 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.
5)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
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intervention strategies remains an issue in the identification
and instruction of ELs with disabilities.
6)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.
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:
1)Have a clear policy statement that additional considerations
will be used in placing EL students in special education
programs
2)Provide test accommodations for EL students
3)Employ exit criteria for English language support programs for
EL students in special education
4)Assess EL students' language and disability needs using a
response to intervention approach
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5)Provide publicly available manuals to aid educators in
identifying and supporting EL students who have learning
disabilities
Analysis Prepared by:
Tanya Lieberman / ED. / (916) 319-2087 FN:
0004221