BILL ANALYSIS �
AB 1372
Page 1
Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 1372 (Norby) - As Amended: April 25, 2011
SUBJECT : Certificated employees: evaluation and assessment
SUMMARY : Authorizes the State Board of Education (SBE),
California Department of Education (CDE), or a local educational
agency (LEA) to disclose classroom-level assessment results,
pursuant to the California Public Records Act (CPRA).
Specifically, this bill :
1)Authorizes the SBE, CDE, or a LEA to disclose, pursuant to the
CPRA, classroom-level assessment results showing the
percentage of pupils at the proficient and advanced
performance levels, provided that:
a) The SBE, CDE, or LEA has possession of the data.
b) The data are not subject to an exemption under the CPRA.
2)States, for the purposes of 1) above, that individual pupil
test scores, pupil identities, and personal directory
information of teachers shall not be disclosed.
3)States that these provisions are declaratory of existing law.
EXISTING LAW :
1)Requires each charter school, school district, and county
office of education to administer designated achievement tests
to each pupil in grades 2 through 11, inclusive, as part of
the STAR Program until July 1, 2013.
2)Requires the SPI and SBE to undertake activities in support of
STAR testing in grades 2 through 11, inclusive, as part of the
STAR Program until July 1, 2013.
3)Requires the CDE to distribute school, district, county, and
state-level reports of STAR results, disaggregated by pupils'
English-language fluency, gender, economic status, and
disability status, to district and county officials and to
post those reports on the CDE Internet Web site by August 15
of each year; also requires individual written reports of a
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pupil's performance for the STAR program to be provided to
that pupil's parents within 20 working days of the date on
which the pupil's district receives the reports.
4)Requires the administration of other assessments as part of
the state testing program, and authorizes LEAs, through the
permissive nature of the Education Code, to administer local
assessments.
5)Defines a numerically significant pupil subgroup, for the
purposes of reporting and comparing Academic Performance Index
(API) results, to be a subgroup with at least 50 valid test
scores that constitutes at least 15 percent of the total
population of pupils, or otherwise a subgroup with at least
100 valid test scores.
6)Requires that each school district produce and post on the
Internet for each school in the district, an annual school
accountability report card (SARC), that includes various
specified data elements describing the school and its
condition; current law also requires the Department of
Education to develop a standardized template for the SARC,
post that template on the internet, develop and recommend
standardized definitions for the SARC data elements, and
pre-populate each school's SARC template with state-collected
data before providing the templates to each school district.
7)Establishes, under the CPRA, the right of every person to
inspect and obtain copies of all state and local government
documents and records that are not exempt, as specified, from
disclosure; also requires specified state and local agencies
to establish written guidelines for accessibility of records,
to post these guidelines at their offices, and to make them
available free of charge to any person requesting that
agency's records.
FISCAL EFFECT : Unknown
COMMENTS : This bill authorizes the SBE, CDE or a LEA to
disclose or provide classroom-level assessment results in
response to a request made under the CPRA, as long as that
governmental entity has possession of that data and the data are
not exempted under CPRA; the bill also prohibits the disclosure
of individual pupil test scores, pupil identities, and personal
directory information of teachers when providing those
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classroom-level assessment results. The bill also states that
these provisions are declaratory of existing law. However, this
bill is actually weaker than existing law, is potentially
misleading with respect to existing law, and may serve to create
conflict or confusion with provisions in the CPRA that are
tightly defined both in statute and in case law. At best, this
bill is unnecessary.
Under current law, a request under the CPRA could be made to a
LEA to disclose class-room level assessment results. The CPRA,
enacted by AB 1381 (Bagley), Chapter 1473, Statutes of 1968, and
reinforced by Constitutional provisions established by
Proposition 59 (2004), establishes the right of every person to
inspect and obtain copies of all state and local government
documents and records not exempt from disclosure. The CPRA also
requires specified state and local agencies to establish written
guidelines for accessibility of records, to post these
guidelines at their offices, and to make them available free of
charge to any person requesting that agency's records.
The foundation of the CPRA is that governmental records are
required to be disclosed to the public, upon request, unless
there is a specific reason not to do so. Most of the reasons
for withholding disclosure of a record are set forth in specific
exemptions contained in the CPRA; however, some confidentiality
provisions are incorporated by reference to other laws. The
CPRA also provides for a general balancing test by which an
agency may withhold records from disclosure, if it can establish
that the public interest in nondisclosure clearly outweighs the
public interest in disclosure. Public records are broadly
defined to include "any writing containing information relating
to the conduct of a public's business prepared, owned, used or
retained by any state or local agency regardless of physical
form or characteristic." As developed through case law, this
definition is intended to cover every conceivable kind of record
that is involved in the governmental process and will pertain to
any new form of record-keeping instrument as it is developed.
Most of the exemptions from disclosure that are claimed by
agencies are justified either on the basis of a recognition of
the individual's right to privacy (e.g., privacy in certain
personnel, medical, educational, or similar records), or on the
government's need to perform its assigned functions in a
reasonably efficient manner (e.g., maintaining confidentiality
of investigative records, official information, records related
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to pending litigation, and preliminary notes or memoranda). If
a record contains exempt information, the agency generally must
segregate or redact the exempt information and disclose the
remainder of the record. When an agency claims an exemption and
withholds records, a member of the public may go to court to
dispute that claim and pursue the right to inspect or copy the
records; if that member of the public prevails, they may receive
payment for court costs and attorney's fees.
Thus, any SBE, CDE, or LEA "prepared, owned, used or retained"
classroom-level reports of assessment results would be required
(not authorized) to be disclosed, absent a valid claim for
exemption, under CPRA. In most applications, it is unlikely
that aggregated classroom-level reports, stripped of any
individual identifiers for pupils, could be validly exempted for
confidentiality reasons or because of a compelling governmental
need that outweighs the public need for transparency. At the
same time, if the SBE, CDE, or a LEA have not "prepared, owned,
used or retained" classroom-level reports of assessment results,
it would not be required under CPRA to disclose those records.
The statutory and constitutional requirements created by the
CPRA make the authority granted, as well as the conditions
(possession of the record and lack of exemption under CPRA)
established, in this bill unnecessary.
Some of the provisions of this bill may actually confuse the
clear requirements of the CPRA, and possibly create conflict
with other state or federal law. For example, the bill
prohibits the disclosure of individual pupil test scores, pupil
identities, and personal directory information of teachers when
providing classroom-level assessment results. Under CPRA, if the
release of classroom-level results would jeopardize the
confidentiality of pupil record information, which could include
more than just identity and test scores, then the governmental
entity could claim an exemption; in fact, it could be argued
that the agency would be required to claim an exemption in order
to comply with the requirements of state law and the federal
Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. �
1232g; 34 CFR Part 99). Thus this bill would appear to
authorize the release of classroom-level assessment results even
in a situation where confidential pupil record information,
beyond identity and test scores, would be released.
In addition, it is unclear:
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1)To what extent a LEA would be pressured to reorganize its
assessment data into classroom-level reports in order to meet
the provisions of this bill.
2)What it means to say, "provided that the SBE, CDE, or LEA has
possession of the data." For example, once STAR reporting
takes place in August of a given year, each LEA would have
STAR assessment data for students in that LEA, though not
necessarily aggregated to the classroom-level. It is unclear
whether these provisions could then be used to argue that the
LEA is required to produce classroom-level results in response
to a CPRA request.
Based on background provided by the author's office on an
earlier version of this bill (no updated background information
was provided on the April 25, 2011, version of the bill), the
author's intent appears to be to facilitate the provision of
classroom-level assessment results, including the results from
the state testing program, to parents of pupils in those
classroom and to the public in general.
Background on the State's Testing Program : California's state
assessment program is comprised of three major testing
components, the STAR Program, the CELDT, and a high school exit
examination (the California High School Exit Examination,
CAHSEE, is currently the designated high school exit
examination). The program also includes a number of smaller,
more specialized assessments. In addition, LEAs administer
numerous district-wide, school-wide and classroom-based
assessments throughout the year. Many of the other assessments
have adopted a reporting approach that parallels STAR reporting,
by scoring assessments on the basis of performance levels that
include a proficient and advance level.
The STAR Program, initially authorized in 1997, requires testing
of students in English language arts, mathematics, science and
history/social science at specified grade levels. In 2003, the
English language California Standards Tests (CST) replaced a
nationally normed "off the shelf" test as the primary battery of
STAR tests; the CSTs are not norm-referenced, but
standards-based tests that measure pupil achievement on state
content standards in English-language arts, mathematics,
science, and history-social science, and include only questions
written specifically for California's former content standards,
which were approved in the 1990s. Today, the STAR Program
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includes the CSTs, the California Alternate Performance
Assessment (CAPA) administered to students with significant
cognitive disabilities, the California Modified Assessment (CMA)
administered to students whose disabilities preclude them from
achieving grade-level proficiency on an assessment of the
California content standards with or without testing
accommodations, and the Standards-based Tests in Spanish (STS).
The STS are Spanish language tests in reading-language arts and
mathematics that are administered to Spanish speaking English
learners who have been in school in the U.S. less than 12 months
or who are receiving instruction in Spanish. Neither the high
school exit exam nor the CELDT are components of the STAR
Program; each is separately authorized in statute.
Results for STAR tests are reported for the individual pupil,
but no accountability attaches to these individual results. In
addition, no individual student scores are reported on the
Internet; the test results for individual students are available
only from the school district or school where the student was
tested. Under both state law and the federal Family Educational
Rights and Privacy Act (FERPA) (20 U.S.C. � 1232g; 34 CFR Part
99), individual student scores are confidential and may be
reviewed only by students' teachers and parents/guardians; a
limited number of exceptions to this requirement exist in law.
Individual pupil results are provided to a pupil's parents
within 20 days of the receipt of those results by the pupil's
school district. The CDE is required to distribute school,
district, county, and state-level reports, disaggregated by
pupils' English-language fluency, gender, economic status, and
disability status, to school districts and county offices of
education by August 15 of each year; the CDE is also required to
post those school, district, county, and state-level results on
the CDE Internet Web site by the same date. In order to protect
student privacy, no aggregate test score appears on the Internet
or published hard-copy reports when that score is based on ten
or fewer students with valid test scores. The measures used in
the state and federal accountability systems (i.e., API and
federal adequate yearly progress, AYP) are primarily based on
the aggregated STAR test scores from all pupils in a school or
school district. Approximately 4.73 million students
participated in the 2010 STAR program.
There are numerous additional problems with this bill, in terms
of its facilitation of the reporting of classroom-level
assessment results and its potential impact on state and local
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agencies:
1)Reporting classroom-level assessment results facilitates
conclusions based on unreliable data and invalid comparisons.
In the case of small class sizes, the lack of statistical
reliability of the results from a small sample of test takers
makes any conclusions (e.g., a conclusion about class-level
performance or a teacher's effectiveness) drawn from that data
suspect. In addition, comparisons across classes or time
assume that the assessments are designed to validly support
that use, and that only the variable being compared varies
within the analysis. However, no assessments used in the
state testing program were designed to be used in this manner,
and it is clear that there are wide differences, that are
completely unrelated to the classes or teachers, between
groups of students in a single classroom. For example, if
results reported for classroom A and classroom B differ
dramatically, then the comparison facilitated is related to
the relative teaching effectiveness of the two teachers in
those classrooms; however, there is no information provided in
a classroom-level report of test scores that provides the
context necessary to support this comparison. If the context
were that classroom A is a special education class with
students who have severe learning disabilities, while
classroom B holds an Advanced Placement class, then the
conclusions drawn from this comparison might be very
different. Non-contextual reporting of assessments results
for small groups leads invariably to invalid comparisons and
conclusions.
2)Current law prohibits the CDE from reporting API results,
which are entirely based on test scores, for any subgroup with
fewer than 50 valid test scores, and for subgroups with less
than 100 valid test scores unless that subgroup constitutes at
least 15 percent of the total universe of pupils. The intent
behind these prohibitions was to balance the benefit of
providing a transparent look into subgroup academic
performance against the problem of statistical reliability and
confidentiality. A proposal to report classroom-level test
results would clearly involve classrooms/subgroups of less
than 50 pupils, and is thus inconsistent with the
legislature's restrictions on subgroup reporting size with
respect to the API.
3)No aggregated test results from the STAR program, or any other
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component of the state testing program, are currently reported
if there are test scores from fewer than 10 pupils in that
aggregation. This provides minimal protection against an
unintended breach in confidentiality with respect to pupil
data that could be individually identified. As the group size
being reported decreases, it becomes easier to effectively
reverse-engineer individual test results. At a minimum,
releasing classroom-level data is problematic in small school
settings or small class settings, and raises the potential for
revealing the results for individual students, even in larger
classes.
4)The stakes involved in an inadvertent breach of
confidentiality as a result of reporting scores for small
groups of students are higher than a simple release of a
student's name; a student's assessment results are a core part
of the pupil record and are protected by FERPA. Violations of
FERPA are serious, and the potential for such violations may
attract litigation if this proposal is adopted. The bill
actually attempts to acknowledge this risk when it prohibits
"individual pupil test scores, pupil identities, and personal
directory information of teachers" from being disclosed. This
provision of the bill raises three issues:
a) Schools and districts are required to ensure that pupil
record information is not released, but the provisions of
this bill may put a LEA in a position of conflict over
adhering to CPRA in violation of state and federal privacy
protections.
b) The bill only includes a prohibition on the disclosure
of individual test scores and pupil identities, while state
law and FERPA prohibit the release of any individual
information that is part of the pupil record; thus the
prohibitions in this bill are insufficient.
c) The bill prohibits the release of personal directory
information for teachers; directory information, including
information such as name and address, is less likely to be
considered harmful if disclosed and is thus less restricted
under state and federal law. In the world of privacy
protection, non-directory information is much more
sensitive and protected, but is not prohibited from
disclosure by this bill.
5)The provisions of this bill would become effective on January
1, 2012. If these provisions would necessitate amendments to
the existing STAR contract or side agreements with the
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contractor, so as to allow classroom-level results to be
accessed or produced by the SBE, CDE, or LEAs responding to
CPRA requests, there may be insufficient lead timing necessary
to implement the required changes for reporting in 2012. It
may not be possible to implement the requirements of this bill
in time for the 2012 STAR testing cycle.
6)Any amendments, or LEA side agreements, to the STAR testing
contract required to support these provisions, or to respond
to pressure created by these provisions, could carry
additional state or local costs. The STAR appropriations in
the state budget now amount to more than $50 million in a
combination of federal funds and state General Fund. Given
the nature of the state's finances, and increase in the cost
of the program would be difficult to fund.
7)The proposals made in the bill also potentially carry
additional activities, and thus costs, for the CDE. The CDE
has implemented large state operations cuts in recent years,
and has consistently opined that it would be unable to take on
additional workload without additional staffing to carry that
workload.
8)The provisions of this bill apply to LEAs, a term that is not
generally defined in the Education Code. When specifically
defined elsewhere in the Education Code, "LEA" includes school
districts and county offices of education; however, it does
not include charter schools. It is unclear why the provisions
of this bill would apply to school districts and county
offices of education, but not to charter schools.
9)The bill does not designate which tests fall under the
provisions of this bill; since the individual record of
accomplishment, mandated by the section of the Education Code
within which these provisions are added, includes multiple
tests, including end of course assessments and vocational
certification exams, that could be reported in terms of the
specified performance levels and that could be administered to
pupils in the same classroom. This could mean that the
results of any classroom level assessment (e.g., this week's
spelling test in an individual grade 2 classroom) could be
subject to the disclosure provisions in this bill.
10)It is also unclear how these multiple assessment results are
to be reported. For example, all students in a grade 5
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classroom would be tested under the STAR program with the CST
in English language arts, mathematics and science; all of
those students might also be tested under STAR with the STS in
reading language arts and mathematics; and some of those
students might be tested under STAR in English language arts
and mathematics with the CMA; in this example it is unclear
whether classroom-level scores on each separate test, or a
classroom-level score showing percent proficient or advanced
composited across the tests would be reported.
Previous legislation : Proposition 59 (2004), placed on the
ballot by SCA 1 (Burton and McPherson), Res. Chapter 1, Statutes
of 2004, placed the "right of access to information concerning
the conduct of the people's business" in Article 1 of the
California Constitution. SB 1448 (Alpert), Chapter 233,
Statutes of 2004, reauthorizes the STAR Program. SB 257
(Alpert), Chapter 782, Statutes of 2003, requires the advisory
committee established to advise the SPI on the API to make
recommendations to the SPI on a methodology for generating a
"gain" score measurement to provide more accurate measure of a
school's growth over time. AB 1295 (Thomson), Chapter 887,
Statutes of 2001, makes changes to the API to allow small school
districts to receive an API score, receive growth targets, and
performance awards. SB 1 X1 (Alpert), Chapter 3, Statutes of
1999-2000 First Extraordinary Session, known as the Public
Schools Accountability Act (PSAA), authorizes the state's
current accountability program, including establishment of the
PSAA Advisory Committee and development of the API. SB 376
(Alpert), Chapter 828, Statutes of 1997, establishes the STAR
Program and authorizes testing in grades 2 through 11. AB 1381
(Bagley), Chapter 1473, Statutes of 1968, enacted the CPRA and
establishes the right of every person to inspect and obtain
copies of all state and local government documents and records
that are not exempt, as specified, from disclosure.
REGISTERED SUPPORT / OPPOSITION :
Support
EdVoice
Opposition
California Federation of Teachers (prior version)
California Teachers Association (prior version)
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Los Angeles Unified School District
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087