BILL ANALYSIS �
AB 1988
Page 1
Date of Hearing: April 25, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 1988 (Davis) - As Amended: April 9, 2012
SUBJECT : Pupils: English learners
SUMMARY : Replicates several existing English learner-related
provisions of current law as a new and separate chapter in the
Education Code for purposes of identifying pupils as standard
English learners, as defined. Specifically, this bill :
1)Makes various findings and declarations relative to the
achievement gap and to the development of assessments to
identify pupils as standard English learners (SELs) and to
annually assess the standard English language development of
pupils that are classified as English only but identified as
SELs, as defined in this bill.
2)Defines, as specified, the following terms for purposes of
this bill: basic skills, content standards or California
common core standards, curriculum, standard English language
development assessment, primary language and district board.
3)Stipulates that "standard English learners" means pupils of
limited English proficiency whose primary language is English
but reflects a unique cultural and linguistic history. Though
their native historical language is not English and they are
classified as English only, these pupils enter school with
limited academic or standard English proficiency. They come
from home environments where the absence of standard English
or academic English spoken by their parents or primary
caregivers has a significant impact on their level of English
language proficiency. Their challenge in speaking, reading,
writing, or understanding standard English language structure
may deny these individuals the ability to meet California's
proficient level of achievement on annual content standards
tests.
4)Requires that the determination of which pupils are pupils of
limited academic English proficiency be made in accordance
with the procedures specified in this bill.
5)Requires each school district to ascertain not later than the
AB 1988
Page 2
first day of March of each year the total number of pupils of
limited standard English proficiency, whose primary language
is English, within the district, and to classify them
according to their primary language, age, and grade level.
6)Requires the count in #5 above to be known as the "census of
pupils of limited standard English proficiency," and requires
the census to consist of a determination of the standard
English proficiency of each pupil enrolled in the school
district and an assessment of the English language skills of
all pupils whose primary language is English.
7)Requires the census to be taken by individual, actual count,
and requires all pupils of limited standard English
proficiency and special education pupils to be counted.
Provides that special language assessment instruments,
designated by the Superintendent of Public Instruction (SPI)
and in compliance with current law may be used for special
education pupils who are standard English learners.
8)Provides that the results of the census shall be reported to
the California Department of Education (CDE) not later than
April 30 of each year, as specified.
9)Requires the SPI, with the approval of the State Board of
Education (SBE), to prescribe census-taking methods,
applicable to all school districts in the state, and to
include, but not be limited to, the following:
a) An initial assessment or determination of the primary or
home language of each pupil enrolled in the school
district; and,
b) An annual assessment of the level of academic English
language development of all pupils whose primary language
is English. The speaking, reading, writing, and
comprehension of the English language structure shall be
assessed, except that reading and writing skills need not
be assessed for pupils in kindergarten and grades 1 and 2.
Provides that this assessment, which shall be made as
pupils enroll in the district, shall determine the level of
academic English proficiency for each pupil.
10)Stipulates that the initial assessment process shall be
completed within 90 days after the date of the pupil's initial
AB 1988
Page 3
enrollment, and shall be performed in accordance with rules
and regulations adopted by the SBE.
11)Requires the CDE to conduct an equivalency study of all
language proficiency tests designated for the identification
of pupils of limited English proficiency to ensure uniformity
of language classifications and to ensure the reliability and
validity of the tests.
12)Requires CDE to annually evaluate the adequacy of, to
designate, the instruments to be used by school districts, and
to make these instruments available by March 15 of each year.
13)Specifies that the initial assessments shall be conducted by
persons who are adequately trained and prepared to evaluate
cultural and ethnic factors, and who shall follow procedures
formulated by the SPI to determine which pupils are pupils of
limited standard English proficiency, as defined.
14)Allows a school district to require the initial assessment be
conducted by persons who hold a valid, regular California
teaching credential and who meet the other specified
qualifications.
15)Requires the CDE to review the results of the census each
year. If the information provided by a school district appears
to be inaccurate or if parents, teachers, or counselors file a
formal written complaint that the census is inaccurate,
requires the CDE to audit the district's census.
16)Requires pertinent information from the initial assessment of
primary or home language and annual assessment of the level of
academic English development for each pupil whose primary
language is English to be retained by the school district as
long as the pupil is enrolled in the district.
17)Requires each school district to report annually to the CDE,
and the CDE to report to the SBE, the following data:
a) The number of pupils whose primary or home language is
English;
b) The number of pupils who are of limited English
proficiency;
AB 1988
Page 4
c) The number of pupils whose primary language is English
and who are enrolled in classes, including, but not limited
to, specialized learning programs similar to English
language mainstream; and,
d) The number of pupils who have met the language
reclassification exit criteria.
18)Specifies that the length of instructional time for
mainstream English language development shall be established
by each school district in which pupils of limited English
proficiency are enrolled.
19)Requires the SBE to adopt regulations setting forth standards
for mainstream English language development to be adopted by
school districts, and requires the regulations, at a minimum,
to prescribe an assessment process that utilizes multiple
criteria.
20)Requires, in following the SBE's regulations, each school
district to establish criteria for determining when pupils of
limited English proficiency have developed the academic
English language skills of listening, speaking, reading, and
writing necessary to succeed in a regular instructional
setting.
21)Requires the SPI to review all existing tests that assess the
academic English language development of pupils and requires
the tests to include, but not be limited to, an assessment of
the English language proficiency of pupils in reading,
writing, speaking, and listening.
22)Requires the SPI to determine which tests, if any, meet the
specified requirements, and if any existing test or series of
tests meet the criteria, requires the SPI, with approval of
the SBE to report to the Legislature on its findings and
recommendations. If no suitable test exists, the SPI shall
explore the option of a collaborative effort with other states
to develop a test or series of tests and share test
development costs. If no suitable test exists, the SPI, with
approval of the SBE, may contract to develop a test or series
of tests that meet the specified criteria or may contract to
modify an existing test or series of tests so that it will
meet the requirements.
AB 1988
Page 5
23)Requires the SPI and the SBE to release a request for
proposals for the development of the test or series of tests
required by this bill and specifies that the SBE shall select
a contractor or contractors for the development of the test or
series of tests to be available for administration during the
2013-14 school year, as specified.
24)Requires the test or series of tests developed or acquired to
have sufficient range to assess pupils in grades 2 to 12,
inclusive, in English listening, speaking, reading, and
writing skills, and provides that pupils in kindergarten and
grade 1 shall be assessed in English listening and speaking,
once an assessment is developed.
25)Provides that the early language development assessment shall
be administered for a period of three years beginning after
the initial administration of the assessment or until July 1,
2013, whichever occurs first. Requires CDE to report to the
Legislature on the administration of the kindergarten and
grade 1 early language development assessment results, as well
as on the administrative process, in order to determine the
appropriate length of instructional time for mainstream
English language development.
26)Requires the test or series of tests to meet all of the
specified requirements, including providing sufficient
information about pupils at each grade level to determine
levels of English proficiency ranging from no English
proficiency to fluent English proficiency with at least two
intermediate levels.
27)Requires the test be used for the following purposes:
a) To identify pupils whose primary or home language is
English and who are limited English proficient; and,
b) To assess the progress of standard English learners in
acquiring the skills of listening, reading, speaking, and
writing in academic English.
28)Prohibits a pupil in any of grades 3 to 12, inclusive, from
being required to retake those portions of the test that
measure English language skills for which he or she has
previously tested as advanced within each appropriate grade
span, as determined by the CDE and prohibits a pupil in any of
AB 1988
Page 6
grades 10 to 12, inclusive, from being required to retake
those portions of the test that measure English language
skills for which he or she has previously tested as early
advanced or advanced. Prohibits these provisions from being
implemented unless and until CDE receives written
documentation from the United States Department of Education
that implementation is permitted by federal law.
29)Authorizes a district board to consider the use of any
standards-based, culturally and linguistically responsive
structured English language development instructional
materials in reading, writing, speaking, and listening if a
district documents the lack of available and appropriate
materials, personnel, and training programs to address, at
every grade level, the needs of all standard-English learners.
30)Requires CDE to maintain a list of available English language
development curriculum materials consistent with English
language development standards and teacher training programs
to ensure that school districts are provided with as many
high-quality standards-aligned instructional material options
as possible, so that educators may have many rigorous options
in choosing the best materials that meet the needs of all
pupils, including standard English learners, English learners,
and pupils with disabilities, and that ensure that their
pupils are able to master the academic content standards
adopted by the SBE.
31)Stipulates that if necessary, an instructional materials
waiver can be requested, and is renewable yearly.
32)Requires CDE to use federal carryover funds received pursuant
to Title I of the federal No Child Left Behind Act of 2001,
and any other available state and federal funds, to implement
this bill.
EXISTING LAW :
1)Requires each school district that has one or more pupils who
are English learners (ELs) to assess the English language
development of each of those pupils within 30 days of initial
enrollment in order to determine the level of proficiency of
those pupils, and annually thereafter to assess each EL pupil
AB 1988
Page 7
until the pupil is redesignated as fluent English proficient.
2)Requires the assessment to include but not be limited to an
assessment of achievement of these pupils in grades 2-12,
inclusive, in English listening, speaking, reading, and
writing skills, and pupils in kindergarten and grade 1 in
English listening, speaking, and until July 1, 2012, early
literacy skills.
3)Specifies that the English language development test (ELDT)
shall be used for the following purposes:
a) To identify pupils who are limited English proficient;
b) To determine the level of English language proficiency
of these pupils; and,
c) To assess the progress of these students in acquiring
the skills of listening, speaking, reading, and writing in
English.
4)Requires the ELDT, among other specifications, to be aligned
with the English language development standards and be age and
developmentally appropriate for pupils.
5)Defines English learner or pupil of limited English
proficiency as a pupil who was not born in the United States
or whose native language is a language other than English or
who comes from an environment where a language other than
English is dominant; and whose difficulties in speaking,
reading, writing, or understanding the English language may be
sufficient to deny the individual the ability to meet the
state's proficient level of achievement on state assessments,
the ability to successfully achieve in classrooms where the
language of instruction is English, or the opportunity to
participate fully in society.
FISCAL EFFECT : Unknown
COMMENTS : This bill replicates provisions from the
Bilingual-Bicultural Education Act of 1976 (Bilingual Education
Act) and other English learner-related provisions of current
law, creating a new and separate chapter in the Education Code
for purposes of creating a process for the identification,
classification, assessment, and reclassification of SELs, as
defined in this bill. Essentially, this process could result in
the creation of a separate subgroup of students classified as
AB 1988
Page 8
"pupils of limited academic English proficiency," "pupils of
limited English proficiency," "pupils of limited standard
English proficiency" or "standard English learners." All four
of these terms are used throughout the bill, but only "standard
English learner" is defined, and it is defined as a "pupil of
limited English proficiency whose primary language is English
but reflects a unique cultural and linguistic history."
Purpose of the bill : The author states, "Academic language,
literacy, and effective communication skills are the
acknowledged gatekeepers to post-secondary educational
opportunities and career success. Standard English Learners
(SELs) are English speakers for whom Standard English is not
native who need to acquire the language and literacy of Standard
English and Academic English. Due to their limited Standard
English proficiency, they have limited opportunities to access
the states' curriculum. The Achievement Gap begins early in
elementary school, widens in middle school, and continues on a
trajectory of low achievement and missed opportunities.
Historically speaking, the California school system has had
great difficulty serving the needs of SELs. These students have
the dubious distinction of having the lowest achievement scores
on standardized tests, and the highest dropout and failure
rates. They do not graduate from college, let alone high school,
and face dim prospects of a lifetime of crime, poverty, or
both."
The author provides information from a Los Angeles Unified
School District's document titled, "AEMP Teachers Guide to
Supporting African American Standard English Learners," which
provides guidance to support and structure the implementation of
a program called the Mainstream English Language Development
program for standard English learners. Specifically, the author
provides an appendix of this document that suggests that "the
speech utilized by the majority of African Americans is
different and readily distinguishable from what is referred as
standard or mainstream American English."
The author further asserts, "Current law in California does not
require an English Language Development (ELD) assessment that
measures the English language proficiency- or skill level- of
English-only students even though many students who are
designated English-only are performing consistently below the
basic level of proficiency in reading, writing, speaking,
listening." This bill suggests that language is a factor
AB 1988
Page 9
affecting the achievement of English-only pupils. Much of the
educational research points to pupils' socioeconomic status as
one of the most influential factors on student achievement.
As currently drafted, this bill creates confusion, as its
provisions are technically inconsistent, duplicative and
potentially unworkable. The added language mirrors various
provisions from existing law dealing with identification,
assessment and reclassification of English learners/limited
English proficient pupils, however those sections of the law
have evolved and changed over time, and to replicate this for
another subgroup of students may require a comprehensive
dialogue with stakeholders to reach consensus on what those
provisions should look like. As currently drafted, this bill
may not have the intended result.
Assessment : This bill requires the CDE to identify and/or
develop two different assessments, an initial assessment and an
annual assessment for two different purposes. The initial
assessment, as suggested by this bill is an assessment of the
primary or home language of each pupil to determine which pupils
are pupils of limited standard English proficiency. This bill
appears to require statewide assessments to be developed in
every language spoken by pupils enrolled in California's public
schools to determine the primary language of pupils. According
to CDE data, there are currently 60 languages spoken by pupils
in California schools. This means CDE is required to develop
statewide initial assessments in each of those languages, and/or
it may also mean that CDE shall develop assessments to determine
the "non-standard" or "non-academic" English of pupils.
The second assessment required by this bill is an annual
assessment to measure the level of academic English development
of all pupils whose primary language is English. Potentially,
all native-English speaking pupils will be required to take an
assessment of academic English language development. In a time
when the state is trying to move towards reducing testing, this
bill potentially adds more tests.
The section of the bill dealing with the annual assessment
reflects the identical process that was followed to develop the
existing English language development test for English learners.
However, this bill creates confusion, as some of these sections
revise the terminology to instead require assessment of academic
English language development. Other sections added by this bill
AB 1988
Page 10
remain unchanged but are duplicated in the Code. Hence, it is
unclear as to whether some of these sections are referring to a
new test or to the existing ELDT. Additionally, this bill
requires the development of a kindergarten and grade 1 "early
language development assessment" which is not defined in this
bill, and sunsets this assessment on July 1, 2013. This is a
section from current law that requires development of an early
literacy skills component for the ELDT in K-1. This bill tries
to mirror that language, however, the timelines established in
this bill are not practical, as the assessment would sunset six
months after the enactment of this bill, if this bill is
chaptered. Six months may not be enough time for development of
such a test, much less for administration. The timeline for the
administration of the other proposed assessment is likewise
impractical, as it would require SBE to select a contractor to
develop the assessment and requires the assessments to be
available for administration during the 2013-14 school year. A
provision of this bill provides specific guidance on the setting
of proficiency levels on the assessment however; other
provisions of the bill contain requirements that presume what
those proficiency levels are and presume that the assessment
will be a grade-span assessment. These provisions relate to the
existing ELDT, but this bill makes these provisions applicable
to a test that has not been designed or developed.
Census : This bill requires school districts to ascertain the
total number of pupils of limited standard English proficiency,
whose primary language is English and requires classification of
these pupils according to their primary language, age and grade
level. Assuming there is a way to identify pupils of limited
standard English proficiency, it is unclear as to how districts
would classify these pupils according to primary language, given
that the bill specifies that the primary language of these
pupils is English. Furthermore, the bill requires the census to
produce data that is collected and reported under existing law
such as the number of pupils whose primary language or home
language is English and the number of pupils who are of limited
English proficiency. Additionally this bill requires the census
to report on the number of pupils who have met the language
reclassification criteria; however the bill does not clearly
specify reclassification criteria.
SBE regulations : This bill requires the SBE to adopt
regulations setting forth standards for an English language
AB 1988
Page 11
development program to be adopted by school districts. However,
it is not clear as to why the SBE should adopt such regulations,
since school districts have broad discretion on the programs
they choose to adopt and implement. Requiring the SBE to adopt
standards for specific programs for districts to implement, may
limit a school district's local control over curriculum.
Additionally, this bill provides that the SBE regulations should
guide school district's criteria for determining when pupils of
limited English proficiency have developed the academic English
language skills of listening, speaking, reading and writing
necessary to succeed in a regular instructional setting.
This bill authorizes a school district to consider the use of
English language development instructional materials, as
specified, if a district documents the lack of available and
appropriate materials to address the needs of SELs and states
that an instructional materials waiver can be requested.
However, the bill does not stipulate what entity the waiver
shall be requested from. It is unclear as to whether this
creates a separate process than the existing process whereby
districts seek waivers from the SBE on various provisions of the
Education Code.
The definition of "pupil of limited English proficiency" is
dictated by federal law and codified in state statute as a pupil
who was not born in the United States or whose native language
is a language other than English or who comes from an
environment where a language other than English is dominant; and
whose difficulties in speaking, reading, writing, or
understanding the English language may be sufficient to deny the
individual the ability to meet the state's proficient level of
achievement on state assessments, the ability to successfully
achieve in classrooms where the language of instruction is
English, or the opportunity to participate fully in society.
This bill uses the term "pupil of limited English proficiency"
in various parts of the bill to refer to pupils whose primary
language is English and meet other specified criteria. However,
using this term as proposed in this bill is in direct conflict
with current federal and state law defining pupils of limited
English proficiency.
Standard English : It can be inferred by the language of this
bill that the intent is to classify students that do not speak
or use "standard" or "academic" English as "standard English
learners." The bill uses "standard English" and "academic
AB 1988
Page 12
English" inconsistently throughout the bill and does not provide
definitions for these terms. According to the American Heritage
Dictionary, standard English is defined as the variety of
English that is generally acknowledged as the model for the
speech and writing of educated speakers. The dictionary points
out that the term is highly elastic and variable since what
counts as standard English will depend on both the locality and
the particular varieties that standard English is being
contrasted with. A form that is considered standard in one
region may be nonstandard in another and a form that is standard
by contrast with one variety may be considered nonstandard by
contrast with the usage of another. Academic English is not
defined in this bill either. Although there is much discussion
about the need for all pupils to acquire academic English
skills, those specific skills have not been identified. In
order to develop an assessment, there would have to be common
understanding of what the baseline or standard for academic or
standard English is.
The Center for Applied Linguistics (CAL) points out that "many
people believe that there is a single set of standards for
English, but linguistic science shows that Standard English in
one part of the country is somewhat different from Standard
English in other parts of the country and from Standard English
in other English-speaking countries." Furthermore, CAL points
out that a large body of linguistic research reveals that
English, like other languages, is quite variable from place to
place and group to group. Varieties, variants, or dialects of
the English language have been studied for years. One of those
varieties is African American vernacular English (AAVE), which
according to the Linguistic Society of America, is one of the
most extensively studied varieties of American English. The
AAVE variety was recognized in the adopted 2008 Reading Language
Arts/English Language Development (RLA/ELD) Framework.
2008 Reading Language Arts/English Language Development
(RLA/ELD) Framework : The SBE adopted the 2008 RLA/ELD framework
and instructional materials, which is a blueprint for
implementation of the state's content standards. The 2008
Framework provides a deeper focus on the instructional needs of
English learners, students with disabilities, struggling
readers, and students who use AAVE and requires the development
of instructional programs that address the needs of these
pupils. Specifically, the Framework requires, "additional
support for students who use African American Vernacular English
AB 1988
Page 13
who may have difficulty with phonological awareness and standard
academic English structures of oral and written language,
including spelling and grammar" (p. 456).
According to a "Summary Statement on African American Vernacular
English" posted on the CDE's Internet Web site and written by
several linguists, much research has been conducted on this
linguistic phenomenon. The document points out that there are
still many areas of disagreement on the origin and past history
of this variety and many open questions concerning the current
direction of its development. The document acknowledges that
"If appropriate methods are used in the classroom, children who
speak this variety can achieve the goal of mastering standard
English."
A new curriculum framework in RLA/ELD will be developed to align
it to the common core standards and will be adopted by May 30,
2014.
Literacy-focus in the common core standards : The
recently-adopted common core state standards provide a strong
focus on literacy development. The standards insist that
instruction in reading, writing, speaking, listening and
language be a shared responsibility within the school. The
common core language standards, "include the essential 'rules'
of standard written and spoken English, but they also approach
language as a matter of craft and informed choice among
alternatives. The vocabulary strands focus on understanding
words and phrases, their relationships, and their nuances and on
acquiring new vocabulary, particularly general academic and
domain-specific words and phrases." This suggests that academic
language and the four domains of language, reading, writing,
speaking, and listening will be emphasized through the common
core standards. The implementation of these standards along
with the integration of English language development can have
the effect of ensuring the language needs of all pupils are
addressed in the curriculum. Last year the Legislature approved
and the Governor signed various measures to start a process for
transitioning into and implementing the common core state
standards, including AB 250 (Brownley), Chapter 608, Statutes of
2011, which develops curriculum frameworks and professional
development modules aligned to the common core standards, and
requires the curriculum frameworks address the needs of English
learners and students with disabilities. The curriculum
frameworks may be an avenue to address the issue raised by the
AB 1988
Page 14
author as these frameworks provide the blueprint for
implementing the standards. This is particularly relevant in
light of the implementation of the common core standards, as
these new standards hold great promise in improving instruction
for all pupils.
Given that the existing provisions of this bill appear
unworkable, and unclear, should this Committee wish to approve
this bill, staff recommends the bill be amended to delete the
existing contents of the bill and to instead focus the bill on
the author's stated intent to promote academic language,
literacy, and effective communication skills. This should be
addressed through the curriculum framework development process.
In staying consistent with the precedent that was set in the
2008 Framework to provide for the development of curricular
tools to address the needs of students who use AAVE, staff
recommends the bill be amended to specify that future English
language arts frameworks and criteria for evaluating
instructional materials shall address the needs of pupils who
use AAVE.
Arguments in opposition : The Californians Together Coalition
has an "oppose unless amended" position on this bill and writes,
"We recommend that AB 1988 focus on improving language contained
in the curriculum frameworks (in particular English Language
Arts framework) so that the instructional needs of African
American students who speak African American Vernacular English
can be addressed. We believe this approach is a more logical,
practical and less costly approach than utilizing the
Chacone-Moscone Bilingual Bicultural Act of 1976."
Previous legislation : AB 1249 (Davis) of 2011 expands the
definition of English learner (EL) for purposes of the Economic
Impact Aid (EIA) funding formula. AB 1249 was held in the
Assembly Education Committee.
AB 250 (Brownley), Chapter 608, Statutes of 2011 develops
curriculum frameworks and professional development modules
aligned to the common core standards; prepares the state's
assessment system for reauthorization and alignment with the
common core state standards; and requires the curriculum
frameworks address the needs of English learners and students
with disabilities.
REGISTERED SUPPORT / OPPOSITION :
AB 1988
Page 15
Support
None on file.
Opposition
California Association for Bilingual Education (Unless amended)
Californians Together Coalition (Unless amended)
Analysis Prepared by : Marisol Avi�a / ED. / (916) 319-2087