BILL NUMBER: SB 366 CHAPTERED 10/10/99 CHAPTER 735 FILED WITH SECRETARY OF STATE OCTOBER 10, 1999 APPROVED BY GOVERNOR OCTOBER 7, 1999 PASSED THE SENATE SEPTEMBER 10, 1999 PASSED THE ASSEMBLY SEPTEMBER 9, 1999 AMENDED IN ASSEMBLY SEPTEMBER 7, 1999 AMENDED IN ASSEMBLY AUGUST 16, 1999 AMENDED IN ASSEMBLY JULY 8, 1999 AMENDED IN ASSEMBLY JULY 1, 1999 AMENDED IN SENATE JUNE 2, 1999 AMENDED IN SENATE APRIL 15, 1999 INTRODUCED BY Senator Alpert (Coauthor: Senator Poochigian) FEBRUARY 11, 1999 An act to amend Sections 60605, 60640, 60641, 60643, and 60644 of, to add Sections 60605.5 and 60643.1 to, and to repeal Section 60646 of, the Education Code, and to amend Section 11126 of the Government Code, relating to pupil testing, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 366, Alpert. Pupil testing. Under the Leroy Greene California Assessment of Academic Achievement Act, the State Board of Education is required to adopt statewide performance standards in the core curriculum areas of reading, writing, and mathematics based on the recommendations made by a contractor or contractors no later than July 15, 1999. This bill would instead provide that the State Board of Education is required to adopt statewide performance standards in these core curriculum areas no later than December 31, 1999. This bill would require the State Board of Education to adopt a performance standards system that includes performance levels, performance level descriptors, test administration data from the applicable board adopted tests, and exemplars of pupil performance that exemplify the content and performance standards. The bill would require the State Board of Education to ensure that the performance standards system is aligned to the state's academically rigorous content standards. Existing law requires the State Department of Education and the publisher of the achievement test that is part of the STAR Program to make the grade, school, school district, and state results available on the Internet by June 30 of each year in which the achievement test is administered. This bill would instead require the test publisher to make the results available to the State Department of Education by July 8 of each year, require that the individual pupil results also be made available, and require the State Department of Education to make the grade, school, school district, and state results available on the Internet by July 15 of each year in which the achievement test is administered. Under the STAR Program, the State Board of Education is required to designate a single statewide achievement test in grades 2 to 11, inclusive. Existing law authorizes the State Department of Education to develop a standard agreement, subject to the approval of the State Board of Education, that all test publishers are required to use. Under existing law, to be eligible for consideration, test publishers are required, among other things, to enter into this standard agreement with each school district in the state that includes, among other things, the requirement that the publisher post a performance bond. This bill would instead require the department to develop, and the State Board of Education to approve, a contract for these purposes. The bill would recast these provisions to require a test publisher to enter into the contract with the State Department of Education instead of with each school district and to require test publishers to provide valid and reliable individual pupil and aggregate scores in certain content areas. This bill would delete the requirement of a performance bond and would make conforming changes. This bill would exempt these contracts from requirements applicable to certain public contracts, would prescribe the contents of the contracts, would expand the law authorizing closed sessions related to pupil tests, would delete provisions authorizing the State Board of Education to adopt related regulations, and would make conforming changes. This bill would require the State Board of Education to annually establish the minimum funding to be apportioned to school districts and to annually establish the amount per test administered that each publisher shall be paid pursuant to the contracts. This bill would, commencing in the 1999-2000 school year, and each school year thereafter, and contingent upon a determination by the Director of Finance that funds are available to make an adjustment to funds apportioned to school districts for purposes of the testing program, require the test publisher to make available a reading list on the Internet, require the reading list to include an index that correlates ranges of pupil reading scores on the English language arts portion of the achievement test to titles of materials that would be suitable for pupils to read in order to improve their reading skills, and require the test publisher to make available, for purchase by school districts, a report that provides a numerical distribution of the reading scores of all pupils in California who took the test and reading lists that can be distributed to pupils based on the ranges of scores on the English language arts portion of the test and the age of the pupil. This bill would provide that certain statutory changes made by the bill do not apply to the 1999 STAR Program and would require the 1999 STAR Program be governed by specified statutes as they existed on January 1, 1999. This bill would incorporate changes in Sections 60641 and 60643 of the Education Code proposed by AB 144 to be operative only if AB 144 and this bill are both enacted and become effective on or before January 1, 2000, and this bill is enacted last. This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 60605 of the Education Code, as amended by Chapter 78 of the Statutes of 1999, is amended to read: 60605. (a) (1) (A) Not later than January 1, 1998, the State Board of Education shall adopt statewide academically rigorous content standards, pursuant to the recommendations of the Commission for the Establishment of Academic Content and Performance Standards, in the core curriculum areas of reading, writing, and mathematics to serve as the basis for assessing the academic achievement of individual pupils and of schools, school districts, and the California education system. Not later than November 1, 1998, the State Board of Education shall adopt these standards in the core curriculum areas of history/social science and science. The performance standards and the assessments described in subdivision (c) may be developed concurrently, and shall be based on the content standards adopted by the board pursuant to this section. (B) The board shall adopt statewide performance standards in the core curriculum areas of reading, writing, mathematics, history-social science, and science based on the recommendations made by a contractor or contractors. By November 15, 2000, the board shall complete the adoption of the portion of the pupil assessments described in subdivision (c) in the core curriculum areas of reading, writing, mathematics, history-social science, and science. (C) In specifying timeframes for deliverables in the request for proposal developed pursuant to subdivision (i), the State Board of Education shall require the contractor or contractors to submit performance standards to the board not later than a specified date that allows sufficient opportunity for the board to conduct regional hearings prior to the adoption of the performance standards by the dates specified in subparagraph (B). (2) (A) The State Board of Education may modify any proposed content standards or performance standards prior to adoption and may adopt content and performance standards in individual core curriculum areas as those standards are submitted to the board by the commission or the contractor. The performance standards shall be established against specific grade level benchmarks of academic achievement for each subject area tested and shall be based on the knowledge and skills that pupils will need in order to succeed in the information-based, global economy of the 21st century. These skills shall not include personal behavioral standards or skills, including, but not limited to, honesty, sociability, ethics, or self-esteem. The standards adopted pursuant to this section shall be for the purpose of guiding state decisions regarding the development, adoption, and approval of assessment instruments pursuant to this chapter and shall not be construed to mandate any actions or activities by school districts. (B) Because these standards are models, the adoption of these standards is not subject to the Administrative Procedure Act. This subparagraph is declaratory of existing law. (3) Before adopting academic content and performance standards, the board shall hold regional hearings for the purpose of giving parents and other members of the public the opportunity to comment on the proposed standards. (b) (1) The State Board of Education shall require the State Department of Education to notify publishers of the opportunity to submit, for consideration by the State Board of Education pursuant to Section 60642, tests of achievement that include all of the basic academic skills identified in subdivision (c) of Section 60603 in grades 2 to 8, inclusive, and the core curriculum areas identified in subdivision (e) of Section 60603 in grades 9 to 11, inclusive. (2) On or before October 31, 1997, the Superintendent of Public Instruction shall recommend to the State Board of Education which achievement test to adopt pursuant to subdivision (b) of Section 60642. (c) (1) The State Board of Education shall adopt an assessment instrument that meets the objectives of Section 60602 and that yields valid, reliable estimates of school performance, school district performance, and statewide performance of pupils that, in grades 4, 5, 8, and 10, assess basic academic skills and incorporate the use of direct writing assessment and other assessments of applied academic skills. (2) The State Board of Education shall annually require that each school district administer the statewide assessment pursuant to this subdivision to all pupils in grades 4, 5, 8, and 10. The core curriculum areas shall be addressed by that assessment. Notwithstanding any other provision of law, the assessment provided for under this subdivision shall address, in grade 4, only reading, written expression, and mathematics, and, in grade 5, only history/social science and science. Pupils in a given school shall be administered a portion of all subjects of the assessment that will be representative of all the assessment objectives, goals, and categories of items on the entire assessment in a manner that will produce results that are valid and reliable at the school and school district level. The State Department of Education may provide assistance to school districts in the implementation of the assessment established pursuant to this subdivision. (3) Nothing in this subdivision shall be construed to prevent the State Board of Education from developing or adopting an assessment instrument that also contains assessments of basic academic skills. (d) The State Board of Education shall adopt assessments pursuant to subdivision (c) that are aligned with the statewide content and performance standards adopted pursuant to subdivision (a). The State Board of Education shall not adopt an assessment pursuant to subdivision (c) for any core curriculum area until the statewide content standards for that core curriculum area have been adopted by the board pursuant to subdivision (a). The State Board of Education shall not award contracts for the development of performance standards and assessments pursuant to subdivision (c) for any core curriculum area until after adoption of statewide content standards for that core curriculum area. (e) After adopting statewide content standards, the State Board of Education shall review the achievement test designated pursuant to Section 60642 for conformance with these statewide standards. (f) After adopting statewide content and performance standards, the State Board of Education shall review the existing curriculum frameworks for conformity with the new statewide standards and shall modify the curriculum frameworks where appropriate to bring them into alignment with the standards. (g) The State Board of Education shall adopt regulations for the conduct and administration of the testing and assessment program. (h) The State Board of Education shall adopt a regulation for minimum security procedures that test and assessment publishers and school districts must follow to ensure the security and integrity of test and assessment questions and materials. (i) Following consideration of recommendations of the Superintendent of Public Instruction, the State Board of Education shall award a contract or contracts to develop performance standards pursuant to subdivision (a) and instruments to be used for the purposes of subdivision (c), according to competitive bidding procedures. (1) As part of this process, the board may convene an advisory panel composed of nationally recognized experts in pupil assessment. Two members of the panel shall be selected from a list of at least 10 nominees of the Superintendent of Public Instruction. This panel, if convened, shall assist the board and the Superintendent of Public Instruction in the preparation of the request or requests for proposals to develop performance standards and instruments for use as assessments of applied academic skills and in the review and rating of proposals that are submitted. The panel shall also assist the board and the Superintendent of Public Instruction in determining methods of ensuring that the achievement test designated pursuant to Section 60642 meets the requirements of Section 60644. The State Department of Education shall provide any necessary staff support for the work of the advisory committee. (2) Any contractor to whom a contract is awarded pursuant to this subdivision shall assure that parents, classroom teachers, administrators, school district governing board members, and the general public are actively involved in the development of any assessment instruments. (3) For the purposes of making the computations required by Section 8 of Article XVI of the California Constitution, appropriations made for the payment of contracts awarded pursuant to this subdivision shall be deemed to be "General Fund revenues appropriated for school districts," as defined in subdivision (c) of Section 41202, for the applicable fiscal year, and included within the "total allocations to school districts and community college districts from General Fund proceeds of taxes appropriated pursuant to Article XIIIB," as defined in subdivision (e) of Section 41202, for that fiscal year. (j) (1) Not less than 60 days before adopting the statewide pupil assessment pursuant to subdivision (c), the State Board of Education shall make the proposed assessment available for inspection by the public. The board shall adopt any proposed amendments or modifications to the assessment before this public inspection period so that the materials available for inspection are the same materials that the board shall consider for final adoption. This provision applies to subsequent amendments or modifications of the examination in addition to the initial adoption. The proposed assessment shall be available for inspection by the public for a reasonable period of time. (2) The assessment adopted pursuant to subdivision (c) shall be available for inspection at each county superintendent of schools' office and within each school district at a centrally located site selected by the governing board of each school district. The governing board may also make the assessment available for public inspection at other locations within the school district. An assessment may not be copied or taken from the inspection site. SEC. 2. Section 60605.5 is added to the Education Code, to read: 60605.5. (a) On or before November 15, 2001, the State Board of Education shall adopt a performance standards system that includes the following components: (1) Performance levels. (2) Performance level descriptors. (3) Test administration data from the applicable State Board of Education adopted tests. (4) Exemplars of pupil performance that exemplify the content and performance standards. (b) The State Board of Education shall ensure that the performance standards system is aligned to the state's academically rigorous content standards. SEC. 3. Section 60640 of the Education Code, as amended by Chapter 78 of the Statutes of 1999, is amended to read: 60640. (a) There is hereby established the Standardized Testing and Reporting Program, to be known as the STAR Program. (b) Commencing in the 1997-98 fiscal year and each fiscal year thereafter, and from the funds available for that purpose, each school district, charter school, and county office of education shall administer to each of its pupils in grades 2 to 11, inclusive, before May 15, the achievement test designated by the State Board of Education pursuant to Section 60642. (c) The publisher and the school district shall provide two makeup days for the testing of previously absent pupils no later than May 25. (d) The governing board of the school district may administer achievement tests in kindergarten, and grade 1 or 12, or both, as it deems appropriate. (e) Individuals with exceptional needs who have an explicit provision in their individualized education program that exempts them from the testing requirement of subdivision (b) shall be so exempt. (f) At the school district's option, pupils of limited English proficiency who are enrolled in any of grades 2 to 11, inclusive, may take a second achievement test in their primary language. Primary language tests administered pursuant to this subdivision and subdivision (g) shall be subject to the requirements of subdivisions (b), (c), (d), and (e) of Section 60641. These primary language tests shall produce individual pupil scores that are valid and reliable. Notwithstanding any other provision of law, the State Board of Education shall designate for use, as part of this program, a single primary language test in each language for which such a test is available for grades 2 to 11, inclusive, no later than November 14, 1998, pursuant to the process used for designation of the assessment chosen in the 1997-98 fiscal year, as specified in Section 60642 and 60643, as applicable. (g) Pupils of limited English proficiency who are enrolled in any of grades 2 to 11, inclusive, shall be required to take a test in their primary language if such a test is available, if fewer than 12 months have elapsed after their initial enrollment in any public school in the state. (h) (1) The Superintendent of Public Instruction shall apportion funds to school districts to enable school districts to meet the requirements of subdivisions (b), (f), and (g). (2) The State Board of Education shall annually establish the amount of funding to be apportioned to school districts for each test administered and shall annually establish the amount that each publisher shall be paid for each test administered under the agreements required pursuant to Section 60643. The amounts to be paid to the publishers shall be determined by considering the cost estimates submitted by each publisher each September and the amount included in the Budget Act and by making allowance for the estimated costs to school districts for compliance with the requirements of subdivisions (b), (f), and (g). (3) An adjustment to the amount of funding to be apportioned per test may not be 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. (i) For the purposes of making the computations required by Section 8 of Article XVI of the California Constitution, the appropriation for the apportionments made pursuant to paragraph (1) of subdivision (h), and the payments made to the publishers under the contract required pursuant to Section 60643 between the State Department of Education and the publisher, shall be deemed to be "General Fund revenues appropriated for school districts," as defined in subdivision (c) of Section 41202 of the Education Code, for the applicable fiscal year, and included within the "total allocations to school districts and community college districts from General Fund proceeds of taxes appropriated pursuant to Article XIIIB," as defined in subdivision (e) of Section 41202 of the Education Code, for that fiscal year. (j) As a condition to receiving an apportionment pursuant to subdivision (h), a school district shall report to the superintendent all of the following: (1) The number of pupils enrolled in the school district in grades 2 to 11, inclusive. (2) The number of pupils to whom an achievement test was administered in grades 2 to 11, inclusive, in the school district. (3) The number of pupils in paragraph (1) who were exempted from the test pursuant to subdivision (e) of Section 60640. (4) The number of pupils in paragraph (1) who were exempted from the test at the request of their parents or guardians. SEC. 4. Section 60641 of the Education Code is amended to read: 60641. The State Department of Education shall ensure that school districts comply with each of the following requirements: (a) The achievement test designated pursuant to Section 60642 is scheduled to be administered to all pupils during the period prescribed in subdivision (b) of Section 60640. (b) The individual results of each pupil test administered pursuant to Section 60640 shall be reported, in writing, to the pupil' s parent or guardian. The written report shall include a clear explanation of the purpose of the test, the pupil's score, and its intended use by the school district. Nothing in this subdivision shall be construed to require teachers to prepare individualized explanations of each pupil's test score. (c) The individual results of each pupil test administered pursuant to Section 60640 shall also be reported to the pupil's school and teachers. The school district shall include the pupil's test results in his or her pupil records. However, except as provided in this section, individual pupil test results may only be released with the permission of the pupil's parent or guardian. (d) The districtwide, school-level, and grade-level results of the STAR Program in each of the grades designated pursuant to Section 60640, but not the score or relative position of any individually ascertainable pupil, shall be reported to the governing board of the school district at a regularly scheduled meeting, and the countywide, school-level, and grade-level results for classes and programs under the jurisdiction of the county office of education shall be similarly reported to the county board of education at a regularly scheduled meeting. These results shall be reported at the same meeting at which the results of the assessments of applied academic skills are reported pursuant to Section 60609, when those assessments are implemented. (e) The publisher designated pursuant to Section 60642 shall make the individual pupil, grade, school, school district, and state results available to the State Department of Education pursuant to paragraph (8) of subdivision (a) of Section 60643 by July 8 of each year in which the achievement test is administered. The State Department of Education shall make the grade, school, school district, and state results available on the Internet by July 15 of each year in which the achievement test is administered. SEC. 4.5. Section 60641 of the Education Code is amended to read: 60641. The State Department of Education shall ensure that school districts comply with each of the following requirements: (a) The achievement test designated pursuant to Section 60642 is scheduled to be administered to all pupils during the period prescribed in subdivision (b) of Section 60640. (b) The individual results of each pupil test administered pursuant to Section 60640 shall be reported, in writing, to the pupil' s parent or guardian. The written report shall include a clear explanation of the purpose of the test, the pupil's score, and its intended use by the school district. Nothing in this subdivision shall be construed to require teachers to prepare individualized explanations of each pupil's test score. (c) The individual results of each pupil test administered pursuant to Section 60640 shall also be reported to the pupil's school and teachers. The school district shall include the pupil's test results in his or her pupil records. However, except as provided in this section, individual pupil test results may only be released with the permission of the pupil's parent or guardian. (d) (1) (A) Except as provided in subparagraph (B), the districtwide, school-level, and grade-level results of the STAR Program in each of the grades designated pursuant to Section 60640, but not the score or relative position of any individually ascertainable pupil, shall be reported to the governing board of the school district at a regularly scheduled meeting. (B) The scores of pupils with limited-English-proficient status who have been enrolled in the school district for fewer than 12 months shall not be included in the districtwide, school-level, or grade-level results of the STAR program. (2) The countywide, school-level, and grade-level results for classes and programs under the jurisdiction of the county office of education shall be similarly reported to the county board of education at a regularly scheduled meeting. (3) The results described in this subdivision shall be reported at the same meeting at which the results of the assessments of applied academic skills are reported pursuant to Section 60609, when those assessments are implemented. (e) The publisher designated pursuant to Section 60642 shall make the individual pupil, grade, school, school district, and state results available to the State Department of Education pursuant to paragraph (8) of subdivision (a) of Section 60643 by July 8 of each year in which the achievement test is administered. The State Department of Education shall make the grade, school, school district, and state results available on the Internet by July 15 of each year in which the achievement test is administered. SEC. 5. Section 60643 of the Education Code, as amended by Chapter 78 of the Statutes of 1999, is amended to read: 60643. (a) To be eligible for consideration under Section 60642 by the State Board of Education, test publishers shall agree in writing each year to meet the following requirements, if selected: (1) Enter into an agreement, pursuant to subdivision (e), with the State Department of Education by November 15, for the 1999-2000 school year, or by October 15, for any school year thereafter. (2) Align the achievement test to the academically rigorous content and performance standards adopted by the State Board of Education. (3) Comply with subdivisions (c) and (d) of Section 60645. (4) Provide valid and reliable individual pupil scores only in the content areas specified in subdivision (c) of Section 60642 to parents or guardians, teachers, and school administrators. (5) Provide valid and reliable aggregate scores only in the content areas specified in subdivision (c) of Section 60642 to school districts and county boards of education in all of the following forms and formats: (A) Grade level. (B) School level. (C) District level. (D) Countywide. (E) Statewide. (F) Comparison of statewide scores relative to other states. (6) Provide disaggregated scores, based on limited-English-proficient status and non-limited-English-proficient status. For purposes of this section, pupils with "non-limited-English-proficient status" shall include the total of those pupils who are English-only pupils, fluent-English-proficient pupils, and redesignated fluent-English-proficient pupils. These scores shall be provided to school districts and county boards of education in the same form and formats listed in paragraph (5). (7) Provide disaggregated scores by pupil gender and provide disaggregated scores based on whether pupils are economically disadvantaged or not. These disaggregated scores shall be in the same form and formats as listed in paragraph (5). In any one year, the disaggregation shall entail information already being collected by school districts, county offices of education, or charter schools. (8) Provide disaggregated scores for pupils who have individualized education programs and have enrolled in special education, to the extent required by federal law. These scores shall be provided in the same forms and formats listed in paragraph (5). This section may not be construed to exclude the scores of special education pupils from any state or federal accountability system. (9) Provide information listed in paragraphs (5), (6), (7), and (8) to the State Board of Education and the State Department of Education in the medium requested by each entity, respectively, by the date set forth in subdivision (e) of Section 60641. (b) It is the intent of the Legislature that the publisher work with the Superintendent of Public Instruction and the State Board of Education in developing a methodology to disaggregate statewide scores as required in paragraphs (6) and (7) of subdivision (a), and in determining which variable indicated on the STAR testing document shall serve as a proxy for "economically disadvantaged" status pursuant to paragraph (7). (c) Access to any information about individual pupils or their families shall be granted to the publisher only for purposes of correctly associating test results with the pupils who produced those results or for reporting and disaggregating test results as required by this section. School districts are prohibited from excluding a pupil from the test if a parent or parents decline to disclose income. Nothing in this chapter shall be construed to abridge or deny rights to confidentiality contained in the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Sec. 1232g) or other applicable provisions of state and federal law that protect the confidentiality of information collected by educational institutions. (d) Notwithstanding any other provision of law, the publisher of the achievement test designated pursuant to Section 60642 shall comply with all of the conditions and requirements enumerated in subdivision (a) to the satisfaction of the State Board of Education. (e) (1) Commencing January 1, 2000, a publisher may not provide a test described in Section 60642 or in subdivision (f) of Section 60640 for use in California public schools unless the publisher enters into a written contract with the State Department of Education as set forth in this subdivision. (2) The State Department of Education shall develop, and the State Board of Education shall approve, a contract to be entered into with a publisher pursuant to paragraph (1). The department may develop the contract through negotiations with the publisher. (3) For purposes of the contract authorized pursuant to this subdivision, the State Department of Education is exempt from the requirements of Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code and from the requirements of Article 6 (commencing with Section 999) of Chapter 6 of Division 4 of the Military and Veterans Code. (4) The contract shall include provisions for progress payments to the publisher for work performed or costs incurred in the performance of the contract. Not less than 10 percent of the amount budgeted for each separate and distinct component task provided for in each contract shall be withheld pending final completion of all component tasks by that publisher. The total amount withheld pending final completion shall not exceed 10 percent of the total contract price. (5) The contract shall require liquidated damages to be paid by the publisher in the amount of up to 10 percent of the total cost of any component task that the publisher through its own fault or that of its subcontractors fails to substantially perform by the date specified in the agreement. (6) The contract shall establish the process and criteria by which the successful completion of each component task shall be recommended by the State Department of Education and approved by the State Board of Education. (7) The publishers shall submit, as part of the contract negotiation process, a proposed budget and invoice schedule, that includes a detailed listing of the costs for each component task and the expected date of the invoice for each completed component task. (8) The costs associated with item development shall be provided as a separate amount and shall not be amortized across the number of tests to be administered. (9) The contract shall specify the following component tasks that are separate and distinct: (A) Development of new tests or test items as required by paragraph (3) of subdivision (a). (B) Test materials production or publication. (C) Delivery of test materials to school districts. (D) Test processing, scoring, and analyses. (E) Reporting of test results to the school districts, including, but not limited to, all reports specified in this section. (F) Reporting of test results to the State Department of Education, including, but not limited to, the electronic files required pursuant to this section. (G) All other analyses or reports required by the Superintendent of Public Instruction to meet the requirements of state and federal law and set forth in the agreement. (10) The contract shall specify the specific reports and data files that are to be provided to school districts by the publisher and the number of copies of each report or file to be provided. (11) The contract shall specify the means by which the delivery date for materials to each school district shall be verified by the publisher and the school district. (12) School districts may negotiate a separate agreement with the publisher for any additional materials or services not within the contract specified in this subdivision, including, but not limited to, the administration of the tests to pupils in grade levels other than grades 2 to 11, inclusive. Any separate agreement is not within the scope of the contract specified in this subdivision. SEC. 5.5. Section 60643 of the Education Code, as amended by Chapter 78 of the Statutes of 1999, is amended to read: 60643. (a) To be eligible for consideration under Section 60642 by the State Board of Education, test publishers shall agree in writing each year to meet the following requirements, if selected: (1) Enter into an agreement, pursuant to subdivision (e), with the State Department of Education by November 15, for the 1999-2000 school year, or by October 15, for any school year thereafter. (2) Align the achievement test to the academically rigorous content and performance standards adopted by the State Board of Education. (3) Comply with subdivisions (c) and (d) of Section 60645. (4) Provide valid and reliable individual pupil scores only in the content areas specified in subdivision (c) of Section 60642 to parents or guardians, teachers, and school administrators. (5) Provide valid and reliable aggregate scores only in the content areas specified in subdivision (c) of Section 60642 to school districts and county boards of education in all of the following forms and formats: (A) Grade level. (B) School level. (C) District level. (D) Countywide. (E) Statewide. (F) Comparison of statewide scores relative to other states. (6) Provide disaggregated scores, based on limited-English-proficient status and non-limited-English-proficient status. Scores of pupils with a limited-English-proficient status should be further disaggregated, based on whether those pupils have been enrolled in the school district for fewer than 12 months. For purposes of this section, pupils with "non-limited-English-proficient status" shall include the total of those pupils who are English-only pupils, fluent-English-proficient pupils, and redesignated fluent-English-proficient pupils. These scores shall be provided to school districts and county boards of education in the same form and formats listed in paragraph (5). (7) Provide disaggregated scores by pupil gender and provide disaggregated scores based on whether pupils are economically disadvantaged or not. These disaggregated scores shall be in the same form and formats as listed in paragraph (5). In any one year, the disaggregation shall entail information already being collected by school districts, county offices of education, or charter schools. (8) Provide disaggregated scores for pupils who have individualized education programs and have enrolled in special education, to the extent required by federal law. These scores shall be provided in the same forms and formats listed in paragraph (5). This section may not be construed to exclude the scores of special education pupils from any state or federal accountability system. (9) Provide information listed in paragraphs (5), (6), (7), and (8) to the State Board of Education and to the State Department of Education in the medium requested by each entity, respectively, by the date set forth in subdivision (e) of Section 60641. (b) It is the intent of the Legislature that the publisher work with the Superintendent of Public Instruction and the State Board of Education in developing a methodology to disaggregate statewide scores as required in paragraphs (6) and (7) of subdivision (a), and in determining which variable indicated on the STAR testing document shall serve as a proxy for "economically disadvantaged" status pursuant to paragraph (7). (c) Access to any information about individual pupils or their families shall be granted to the publisher only for purposes of correctly associating test results with the pupils who produced those results or for reporting and disaggregating test results as required by this section. School districts are prohibited from excluding a pupil from the test if a parent or parents decline to disclose income. Nothing in this chapter shall be construed to abridge or deny rights to confidentiality contained in the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Sec. 1232g) or other applicable provisions of state and federal law that protect the confidentiality of information collected by educational institutions. (d) Notwithstanding any other provision of law, the publisher of the achievement test designated pursuant to Section 60642 shall comply with all of the conditions and requirements enumerated in subdivision (a) to the satisfaction of the State Board of Education. (e) (1) Commencing January 1, 2000, a publisher may not provide a test described in Section 60642 or in subdivision (f) of Section 60640 for use in California public schools unless the publisher enters into a written contract with the State Department of Education as set forth in this subdivision. (2) The State Department of Education shall develop, and the State Board of Education shall approve, a contract to be entered into with a publisher pursuant to paragraph (1). The department may develop the contract through negotiations with the publisher. (3) For purposes of the contract authorized pursuant to this subdivision, the State Department of Education is exempt from the requirements of Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code and from the requirements of Article 6 (commencing with Section 999) of Chapter 6 of Division 4 of the Military and Veterans Code. (4) The contract shall include provisions for progress payments to the publisher for work performed or costs incurred in the performance of the contract. Not less than 10 percent of the amount budgeted for each separate and distinct component task provided for in each contract shall be withheld pending final completion of all component tasks by that publisher. The total amount withheld pending final completion shall not exceed 10 percent of the total contract price. (5) The contract shall require liquidated damages to be paid by the publisher in the amount of up to 10 percent of the total cost of any component task that the publisher through its own fault or that of its subcontractors fails to substantially perform by the date specified in the agreement. (6) The contract shall establish the process and criteria by which the successful completion of each component task shall be recommended by the State Department of Education and approved by the State Board of Education. (7) The publishers shall submit, as part of the contract negotiation process, a proposed budget and invoice schedule that includes a detailed listing of the costs for each component task and the expected date of the invoice for each completed component task. (8) The costs associated with item development shall be provided as a separate amount and shall not be amortized across the number of tests to be administered. (9) The contract shall specify the following component tasks that are separate and distinct: (A) Development of new tests or test items as required by paragraph (3) of subdivision (a). (B) Test materials production or publication. (C) Delivery of test materials to school districts. (D) Test processing, scoring, and analyses. (E) Reporting of test results to the school districts, including, but not limited to, all reports specified in this section. (F) Reporting of test results to the State Department of Education, including, but not limited to, the electronic files required pursuant to this section. (G) All other analyses or reports required by the Superintendent of Public Instruction to meet the requirements of state and federal law and set forth in the agreement. (10) The contract shall specify the specific reports and data files that are to be provided to school districts by the publisher and the number of copies of each report or file to be provided. (11) The contract shall specify the means by which the delivery date for materials to each school district shall be verified by the publisher and the school district. (12) School districts may negotiate a separate agreement with the publisher for any additional materials or services not within the agreement specified in this subdivision, including, but not limited to, the administration of the tests to pupils in grade levels other than grades 2 to 11, inclusive. Any separate agreement is not within the scope of the contract specified in this subdivision. SEC. 6. Section 60643.1 is added to the Education Code, to read: 60643.1. (a) (1) Commencing in the 1999-2000 school year, and each school year thereafter, the test publisher designated by the State Board of Education pursuant to Section 60643 shall make available a reading list on the Internet by June 1. The reading list shall include an index that correlates ranges of pupil reading scores on the English language arts portion of the achievement test administered pursuant to subdivision (b) of Section 60640 to titles of materials that would be suitable for pupils in each of grades 2 to 11, inclusive, to read in order to improve their reading skills. This reading list shall include titles of books that allow a pupil to practice reading at his or her current reading level and that will assist the pupil in achieving a higher level of proficiency. To the extent possible, the index shall also include information related to the subject matter of each title. At a minimum, the reading list shall also categorize titles by subject matter and identify age-appropriate distinctions in the list. (2) Commencing in the 1999-2000 school year, and each school year thereafter, the test publisher shall make available, for purchase by school districts, a report that provides a numerical distribution of the reading scores of all pupils in California who took the achievement test administered pursuant to subdivision (b) of Section 60640. (3) Commencing in the 1999-2000 school year, and each school year thereafter, the test publisher shall make available, for purchase by school districts, reading lists that can be distributed to pupils based on a pupil's age and the ranges of scores on the English language arts portion of the achievement test administered pursuant to subdivision (b) of Section 60640. (4) The requirements of this subdivision shall only become operative upon a determination by the Director of Finance that funds are available to make an adjustment pursuant to subdivision (h) of Section 60640. (b) The State Board of Education and the Superintendent of Public Instruction shall jointly certify that the process used by the publisher to determine the reading levels of the corresponding reading list pursuant to paragraph (1) of subdivision (a) meets the following criteria: (1) The process is educationally valid. (2) The process results in a reading list for each reading span that provides titles at the pupil's current reading level and the next higher level for challenging practice. (3) The process results in a selection from the universe of titles from the list developed pursuant to subdivision (d) that matches each reading level. (4) The process is unbiased in the selection of publishers' titles from the legal compliance list. (c) The titles listed at each reading level range posted on the Internet and the reading lists made available to school districts pursuant to subdivision (a) shall, at a minimum, include all relevant literature materials approved as of September 1, 1999, as being legally compliant pursuant to Article 3 (commencing with Section 60040) of Chapter 1, and the titles listed in all of the content area reading and literature lists that are developed and published by the State Department of Education and that have been determined by the department to meet the relevant reading level as certified pursuant to subdivision (b). (d) By imposing the requirements of this section on publishers, it is not the intent of the Legislature to unfairly disadvantage any publisher who has otherwise met the requirements of this section or of Article 3 (commencing with Section 60040) of Chapter 1 of Part 33. SEC. 7. Section 60644 of the Education Code is amended to read: 60644. In designating an achievement test pursuant to Section 60642, the State Board of Education shall adopt only a nationally normed test and shall consider each of the following criteria: (a) Ability of the publisher to produce valid, reliable individual pupil scores. (b) Quality and age of empirical data supporting national norm referenced data analysis of the proposed assessment. (c) Ability to report results pursuant to the provisions of paragraphs (4) to (7), inclusive, of subdivision (a) of Section 60643 by July 8. (d) Ability to report results that permit comparability between data from school districts' previous administration of standardized achievement tests, if feasible. (e) Ability to provide results comparable with data from the 1998 benchmark year and administrations in subsequent years with the grade level competencies established pursuant to the academically rigorous content and performance standards adopted by the State Board of Education pursuant to Section 60605. (f) (1) Ability to align the achievement test with academically rigorous content and performance standards as those standards are adopted by the State Board of Education. It is the intent of the Legislature that, to the extent feasible, the nationally-normed test shall be augmented with items that assess the specific grade-level content standards and produce valid and reliable scores for pupils achievement for each of the State Board of Education designated performance standards adopted by the State Board of Education pursuant to subdivision (a) of Section 60605. (2) Until the State Board of Education adopts academically rigorous content standards, the test shall be consistent with Section 60200.4, reasonably aligned with the state curriculum frameworks, and substantively aligned with the program advisories jointly adopted by the Superintendent of Public Instruction, the State Board of Education, and the Commission on Teacher Credentialing in 1996. (g) Per-pupil cost estimates of administering the proposed assessment. (h) The publisher's procedure for ensuring the security and integrity of test questions and materials. (i) Experience in the successful conduct of testing programs adopted and administered by other states. For experience to be considered, the number of grades and pupils tested shall be provided. SEC. 8. Section 60646 of the Education Code is repealed. SEC. 9. Section 11126 of the Government Code is amended to read: 11126. (a) (1) Nothing in this article shall be construed to prevent a state body from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, or dismissal of a public employee or to hear complaints or charges brought against that employee by another person or employee unless the employee requests a public hearing. (2) As a condition to holding a closed session on the complaints or charges to consider disciplinary action or to consider dismissal, the employee shall be given written notice of his or her right to have a public hearing, rather than a closed session, and that notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding a regular or special meeting. If notice is not given, any disciplinary or other action taken against any employee at the closed session shall be null and void. (3) The state body also may exclude from any public or closed session, during the examination of a witness, any or all other witnesses in the matter being investigated by the state body. (4) Following the public hearing or closed session, the body may deliberate on the decision to be reached in a closed session. (b) For the purposes of this section, "employee" shall not include any person who is elected to, or appointed to a public office by, any state body. However, officers of the California State University who receive compensation for their services, other than per diem and ordinary and necessary expenses, shall, when engaged in that capacity, be considered employees. Furthermore, for purposes of this section, the term employee shall include a person exempt from civil service pursuant to subdivision (e) of Section 4 of Article VII of the California Constitution. (c) Nothing in this article shall be construed to do any of the following: (1) Prevent state bodies that administer the licensing of persons engaging in businesses or professions from holding closed sessions to prepare, approve, grade, or administer examinations. (2) Prevent an advisory body of a state body that administers the licensing of persons engaged in businesses or professions from conducting a closed session to discuss matters that the advisory body has found would constitute an unwarranted invasion of the privacy of an individual licensee or applicant if discussed in an open meeting, provided the advisory body does not include a quorum of the members of the state body it advises. Those matters may include review of an applicant's qualifications for licensure and an inquiry specifically related to the state body's enforcement program concerning an individual licensee or applicant where the inquiry occurs prior to the filing of a civil, criminal, or administrative disciplinary action against the licensee or applicant by the state body. (3) Prohibit a state body from holding a closed session to deliberate on a decision to be reached in a proceeding required to be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 or similar provisions of law. (4) Grant a right to enter any correctional institution or the grounds of a correctional institution where that right is not otherwise granted by law, nor shall anything in this article be construed to prevent a state body from holding a closed session when considering and acting upon the determination of a term, parole, or release of any individual or other disposition of an individual case, or if public disclosure of the subjects under discussion or consideration is expressly prohibited by statute. (5) Prevent any closed session to consider the conferring of honorary degrees, or gifts, donations, and bequests that the donor or proposed donor has requested in writing to be kept confidential. (6) Prevent the Alcoholic Beverage Control Appeals Board from holding a closed session for the purpose of holding a deliberative conference as provided in Section 11125. (7) (A) Prevent a state body from holding closed sessions with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the state body to give instructions to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. (B) However, prior to the closed session, the state body shall hold an open and public session in which it identifies the real property or real properties that the negotiations may concern and the person or persons with whom its negotiator may negotiate. (C) For purposes of this paragraph, the negotiator may be a member of the state body. (D) For purposes of this paragraph, "lease" includes renewal or renegotiation of a lease. (E) Nothing in this paragraph shall preclude a state body from holding a closed session for discussions regarding eminent domain proceedings pursuant to subdivision (e). (8) Prevent the California Postsecondary Education Commission from holding closed sessions to consider matters pertaining to the appointment or termination of the Director of the California Postsecondary Education Commission. (9) Prevent the Council for Private Postsecondary and Vocational Education from holding closed sessions to consider matters pertaining to the appointment or termination of the Executive Director of the Council for Private Postsecondary and Vocational Education. (10) Prevent the Franchise Tax Board from holding closed sessions for the purpose of discussion of confidential tax returns or information the public disclosure of which is prohibited by law, or from considering matters pertaining to the appointment or removal of the Executive Officer of the Franchise Tax Board. (11) Require the Franchise Tax Board to notice or disclose any confidential tax information considered in closed sessions, or documents executed in connection therewith, the public disclosure of which is prohibited pursuant to Article 2 (commencing with Section 19542) of Chapter 7 of Part 10.2 of the Revenue and Taxation Code. (12) Prevent the Board of Corrections from holding closed sessions when considering reports of crime conditions under Section 6027 of the Penal Code. (13) Prevent the State Air Resources Board from holding closed sessions when considering the proprietary specifications and performance data of manufacturers. (14) Prevent the State Board of Education or the Superintendent of Public Instruction, or any committee advising the board or the superintendent, from holding closed sessions on those portions of its review of assessment instruments pursuant to Chapter 5 (commencing with Section 60600) of, or pursuant to Chapter 8 (commencing with Section 60850) of, Part 33 of the Education Code during which actual test content is reviewed and discussed. The purpose of this provision is to maintain the confidentiality of the assessments under review. (15) Prevent the California Integrated Waste Management Board or its auxiliary committees from holding closed sessions for the purpose of discussing confidential tax returns, discussing trade secrets or confidential or proprietary information in its possession, or discussing other data, the public disclosure of which is prohibited by law. (16) Prevent a state body that invests retirement, pension, or endowment funds from holding closed sessions when considering investment decisions. For purposes of consideration of shareholder voting on corporate stocks held by the state body, closed sessions for the purposes of voting may be held only with respect to election of corporate directors, election of independent auditors, and other financial issues that could have a material effect on the net income of the corporation. For the purpose of real property investment decisions that may be considered in a closed session pursuant to this paragraph, a state body shall also be exempt from the provisions of paragraph (7) relating to the identification of real properties prior to the closed session. (17) Prevent a state body, or boards, commissions, administrative officers, or other representatives that may properly be designated by law or by a state body, from holding closed sessions with its representatives in discharging its responsibilities under Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 as the sessions relate to salaries, salary schedules, or compensation paid in the form of fringe benefits. For the purposes enumerated in the preceding sentence, a state body may also meet with a state conciliator who has intervened in the proceedings. (d) (1) Notwithstanding any other provision of law, any meeting of the Public Utilities Commission at which the rates of entities under the commission's jurisdiction are changed shall be open and public. (2) Nothing in this article shall be construed to prevent the Public Utilities Commission from holding closed sessions to deliberate on the institution of proceedings, or disciplinary actions against any person or entity under the jurisdiction of the commission. (e) (1) Nothing in this article shall be construed to prevent a state body, based on the advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the state body in the litigation. (2) For purposes of this article, all expressions of the lawyer-client privilege other than those provided in this subdivision are hereby abrogated. This subdivision is the exclusive expression of the lawyer-client privilege for purposes of conducting closed session meetings pursuant to this article. For purposes of this subdivision, litigation shall be considered pending when any of the following circumstances exist: (A) An adjudicatory proceeding before a court, an administrative body exercising its adjudicatory authority, a hearing officer, or an arbitrator, to which the state body is a party, has been initiated formally. (B) (i) A point has been reached where, in the opinion of the state body on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the state body. (ii) Based on existing facts and circumstances, the state body is meeting only to decide whether a closed session is authorized pursuant to clause (i). (C) (i) Based on existing facts and circumstances, the state body has decided to initiate or is deciding whether to initiate litigation. (ii) The legal counsel of the state body shall prepare and submit to it a memorandum stating the specific reasons and legal authority for the closed session. If the closed session is pursuant to paragraph (1), the memorandum shall include the title of the litigation. If the closed session is pursuant to subparagraph (A) or (B), the memorandum shall include the existing facts and circumstances on which it is based. The legal counsel shall submit the memorandum to the state body prior to the closed session, if feasible, and in any case no later than one week after the closed session. The memorandum shall be exempt from disclosure pursuant to Section 6254.25. (iii) For purposes of this subdivision, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. (iv) Disclosure of a memorandum required under this subdivision shall not be deemed as a waiver of the lawyer-client privilege, as provided for under Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of the Evidence Code. (f) In addition to subdivisions (a), (b), and (c), nothing in this article shall be construed to do any of the following: (1) Prevent a state body operating under a joint powers agreement for insurance pooling from holding a closed session to discuss a claim for the payment of tort liability or public liability losses incurred by the state body or any member agency under the joint powers agreement. (2) Prevent the examining committee established by the State Board of Forestry and Fire Protection, pursuant to Section 763 of the Public Resources Code, from conducting a closed session to consider disciplinary action against an individual professional forester prior to the filing of an accusation against the forester pursuant to Section 11503. (3) Prevent an administrative committee established by the State Board of Accountancy pursuant to Section 5020 or 5020.3 of the Business and Professions Code from conducting a closed session to consider disciplinary action against an individual accountant prior to the filing of an accusation against the accountant pursuant to Section 11503. Nothing in this article shall be construed to prevent an examining committee established by the Board of Accountancy pursuant to Section 5023 of the Business and Professions Code from conducting a closed hearing to interview an individual applicant or accountant regarding the applicant's qualifications. (4) Prevent a state body, as defined in Section 11121.2, from conducting a closed session to consider any matter that properly could be considered in closed session by the state body whose authority it exercises. (5) Prevent a state body, as defined in Section 11121.7, from conducting a closed session to consider any matter that properly could be considered in a closed session by the body defined as a state body pursuant to Section 11121, 11121.2, or 11121.5. (6) Prevent a state body, as defined in Section 11121.8, from conducting a closed session to consider any matter that properly could be considered in a closed session by the state body it advises. (7) Prevent the State Board of Equalization from holding closed sessions for either of the following: (A) When considering matters pertaining to the appointment or removal of the Executive Secretary of the State Board of Equalization. (B) For the purpose of hearing confidential taxpayer appeals or data, the public disclosure of which is prohibited by law. (8) Require the State Board of Equalization to disclose any action taken in closed session or documents executed in connection with that action, the public disclosure of which is prohibited by law pursuant to Sections 15619 and 15641 of this code and Sections 833, 7056, 8255, 9255, 11655, 30455, 32455, 38705, 38706, 43651, 45982, 46751, 50159, 55381, and 60609 of the Revenue and Taxation Code. (9) Prevent the California Earthquake Prediction Evaluation Council, or other body appointed to advise the Director of the Office of Emergency Services or the Governor pursuant to Section 8590 concerning matters relating to volcanic or earthquake predictions, from holding closed sessions when considering the evaluation of possible predictions. (g) This article shall not prevent either of the following: (1) The Teachers' Retirement Board or the Board of Administration of the Public Employees' Retirement System from holding closed sessions when considering matters pertaining to the recruitment, appointment, employment, or removal of the chief executive officer or when considering matters pertaining to the recruitment or removal of the Chief Investment Officer of the State Teachers' Retirement System or the Public Employees' Retirement System. (2) The Commission on Teacher Credentialing from holding closed sessions when considering matters relating to the recruitment, appointment, or removal of its executive director. SEC. 10. (a) The statutory changes made by the act adding this section to Sections 60640, 60641, 60643, and 60644 and the repeal by this bill of Section 60646 do not apply to the testing program conducted in 1999 and authorized pursuant to Article 4 (commencing with Section 60640) of Chapter 5 of Part 33 of the Education Code. (b) Notwithstanding Chapter 78 of the Statutes of 1999, Sections 60640, 60641, 60643, 60644, and 60646, as those sections existed on January 1, 1999, shall govern the testing program conducted in 1999 and authorized pursuant to Article 4 (commencing with Section 60640). SEC. 11. Section 4.5 of this bill incorporates amendments to Section 60641 of the Education Code proposed by both this bill and AB 144. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2000, but this bill becomes operative first, (2) each bill amends Section 60641 of the Education Code, and (3) this bill is enacted after AB 144, in which case Section 60641 of the Education Code, as amended by Section 4 of this bill, shall remain operative only until the operative date of AB 144, at which time Section 4.5 of this bill shall become operative. SEC. 12. Section 5.5 of this bill incorporates amendments to Section 60643 of the Education Code proposed by both this bill and AB 144. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2000, but this bill becomes operative first, (2) each bill amends Section 60643 of the Education Code, and (3) this bill is enacted after AB 144, in which case Section 60643 of the Education Code, as amended by Section 5 of this bill, shall remain operative only until the operative date of AB 144, at which time Section 5.5 of this bill shall become operative. SEC. 13. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: To ensure the orderly operation of the elementary and secondary schools in the state, it is necessary for this act to take effect immediately.