BILL NUMBER: SB 675 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 5, 2011
INTRODUCED BY Senator Wright
FEBRUARY 18, 2011
An act to add Article 22 (commencing with Section 94951) to
Chapter 8 of Part 59 of Division 10 of Title 3 of the Education Code,
relating to private postsecondary education.
LEGISLATIVE COUNSEL'S DIGEST
SB 675, as amended, Wright. Private postsecondary education:
non-English speaking students.
Existing law, the California Private Postsecondary Education Act
of 2009 (act) provides, among other things, for student protections
and regulatory oversight of private postsecondary schools
(institutions) in the state. The act is enforced by the Bureau for
Private Postsecondary Education within the Department of Consumer
Affairs.
This bill would provide that an institution is prohibited from
entering into an agreement for a program or course of instruction
given in English with a nonnative speaker of English, as defined,
unless the prospective student first takes and passes an English
proficiency test, as specified. The bill would require that English
proficiency tests be given to prospective students at a place off
campus by an independent test administrator without charge to the
student and in accordance with all procedures and requirements
specified by the test publisher. The bill would require that the
tests be paid for by the institution and graded off campus by an
independent test administrator. The bill would prohibit employees or
representatives of the school from influencing the giving,
monitoring, or scoring of the tests. The bill would provide, if a
prospective student is unable to pass the tests, that it may be
readministered only as specified.
The bill would prohibit a student from waiving any requirement of
the act, and provides that if an institution violates any provision
of the act, the enrollment agreement and any other contract with the
institution is unenforceable. The bill would specify further remedies
and damage provisions. The bill would specify the bureau's authority
and powers to enforce the act.
This bill would require any written contract or agreement for
educational services signed by a nonnative speaker of English with an
institution to include an enrollment agreement containing specified
information. The bill would require that the test and the score be
placed in the student's file after enrollment.
The bill would declare that its provisions are severable, and make
legislative declarations and findings.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) Many immigrants with limited English proficiency, who either
have no high school diploma and limited education in their native
country or who have a high school diploma and have received some of
their schooling in the United States, are induced to enroll in
diploma or degree courses of instruction conducted in English at
private postsecondary schools.
(2) The vast majority of these students are poor or of moderate
income, and therefore will qualify for the maximum amount of federal
student grants and loans.
(3) The vast majority of these students will not benefit from a
course of instruction in English which they do not understand. Many
of these students will not obtain employment from their training and
will default on their student loans. The subsequent loan defaults
will prevent them from obtaining Pell grants and federal and state
financial aid in the future which would have allowed them to obtain
English-as-a-second-language instruction and job or educational
training from which they could benefit.
(4) Some private postsecondary schools help these prospective
immigrant students get counterfeit high school diplomas so they can
get federal financial aid without having to take an
ability-to-benefit test which would reveal their limited education or
limited English proficiency. The result is that these students are
barred from qualifying for federal financial aid without remedial and
English-as-a-second-language (ESL) instruction.
(5)
(4) The enrolling of students with limited English
proficiency in courses taught in English was prohibited by the
Legislature with respect to diploma programs given by private
postsecondary schools but these abusive practices have returned since
the expiration of the Maxine Waters School Reform Act on June 30,
2007.
(6)
(5) When immigrant students default on their student
loans, their tax refunds and earned income tax credit are seized and
their paychecks and social security benefits, including retirement or
disability benefits, are garnished until the debt is paid. The debt
often continues unsatisfied into retirement.
(b) It is the intent and purpose of this article:
(1) To protect immigrant students from being enrolled in a course
of instruction conducted in English at private postsecondary
institutions when they are not sufficiently proficient in English to
benefit from the instruction.
(2) To protect immigrant students from incurring student loan debt
they are unlikely to be able to pay off in order to receive training
which is of no benefit to them.
(3) To prevent private postsecondary schools from profiting from
enrolling limited-English-proficient students who are not likely to
complete or benefit from the training or education offered in English
and getting these immigrant students' federal financial aid on the
basis of counterfeit high school diplomas.
SEC. 2. Article 22 (commencing with Section 94951) is added to
Chapter 8 of Part 59 of Division 10 of Title 3 of the Education Code,
to read:
Article 22. Nonnative Speakers of English
94951. For the purposes of this article, the following terms have
the following meanings:
(a) "Class" means a subject, such as English or mathematics, which
is taught as part of a course or program of instruction.
(b) "High school diploma" means a diploma received from a public
high school or private high school that is accredited by a federally
recognized regional accrediting agency or a high school diploma from
a school that has a University of California approved course list.
This definition shall remain in effect as long as it does not
conflict with any definition of high school diploma enacted by the
United States Department of Education.
(c) "Independent test administrator" is a person who gives,
monitors, and grades English proficiency tests given to nonnative
speakers of English to determine whether their English language
skills are sufficient to enable them to successfully take and
complete the classes in a program of instruction and participate in
all classroom activities as well as benefit from a program of
instruction provided in English. For these purposes, "independent"
means that the test administrator is not a previous or current owner,
director, consultant, employee, or representative of any private
postsecondary institution or a previous, or current employee of a
corporation or subsidiary which is affiliated with a private
postsecondary institution, and has no previous or current, direct or
indirect, financial interest in any private postsecondary
institution, including those exempt from this chapter.
(d) "Instruction in English" means a program or course of
instruction in which any of the following activities takes place,
either in the course or program of instruction itself or in any of
the classes that make up the course or program of instruction:
(1) The written instruction, including any of the books provided,
is in English.
(2) The instructors speak or lecture in English or conduct
demonstrations during any class or classes in English.
(3) Student work assignments must be written in English.
(4) A test or quiz is given in English or the student is required
to respond in English.
(5) The syllabus, brochure, or catalog given to a prospective
student describing the program of instruction or the requirements of
the course is in English.
(6) A license or certification test is given in English.
(e) "Limited-English proficient," "English
learner," when used with respect to an individual, student, or
prospective student, means a nonnative speaker of English whose
difficulties in speaking, reading, writing, or understanding the
English language may be sufficient to deny the individual any of the
following:
(1) The ability to successfully complete the course work and
activities in the classes making up the course or program of
instruction where the language of instruction is English.
(2) The training and skills to obtain jobs in areas in which the
training was represented to lead to jobs in the field of training.
(3) The opportunity to participate fully in society.
(f) "Nonnative speaker of English" is any of the following:
(1) A person who was not born in the United States and whose first
language was not English.
(2) A person whose primary language spoken at home is other than
English or whose native language is a language other than English.
(3) A person who has not completed kindergarten and grades 1 to
12, inclusive, in the United States and graduated from high school in
the United States.
(4) A person who comes from an environment or a family where a
language other than English has had a significant impact on the
individual's level of English proficiency.
(3) A person who was born in a country other than the United
States and who attended kindergarten or any grades 1 to 12,
inclusive, in a United States school for three or fewer years.
(g) "Program or course of instruction" means a set of vocational
or other related educational classes that prepare students for a job
or set of jobs or for a degree. A course or program of instruction
can result in a diploma or a degree, the latter often requires
general education classes.
(h) "Prospective student" means a nonnative speaker of English who
seeks to enroll in a program of instruction taught in English or who
has inquired about a program of instruction given or taught in
English.
(i) "Student" means a person who is a nonnative speaker of English
who has enrolled in or signed an enrollment agreement for a program
of instruction conducted in English at a private postsecondary
institution.
(j) "Successful completion of a course or program of instruction"
means that a nonnative speaker of English has English language
proficiency sufficient to participate in and complete all class
activities, other requirements necessary for graduation or to obtain
a degree or diploma, and sufficient to complete all the classes that
make up the course of instruction, including any general education
requirements , with a grade of "C" or better .
94952. (a) An institution shall not enter into an agreement for a
program or course of instruction given in English with a prospective
student unless the prospective student first takes and passes an
English proficiency test as provided in subdivision (b) or
authorized by regulation of the Bureau of Private Postsecondary
Education. Any English proficiency tests authorized by the bureau
shall be given by an independent test administrator. English
(b). English proficiency tests and their cutoff
scores shall demonstrate that the student is English
proficient and not limited English proficient and has the necessary
English language proficiency which includes the ability
student has the necessary English language proficiency to
understand verbal and written English and to speak and write English
well enough to successfully complete a postsecondary course
of instruction and particularly the course or program of
instruction into which the prospective student seeks to enroll.
(b) A student may show proficiency in English sufficient to meet
the requirements of subdivision (a) by doing any of the following:
(1) Taking the Test of English as a Foreign Language (TOEFL)
and scoring a minimum of 450 for the paper-based test, 133
for the computer-based test, or 45 for the Internet-based test.
and meeting or exceeding the cutoff score or scores
designated by the bureau per regulation.
(2) Taking the International English Language Testing System
(IELTS) test and scoring a minimum of 4.5
meeting or exceeding the cutoff score or scores designated by the
bureau per regulation .
(3) Taking a test and meeting or exceeding the cutoff score or
scores designated by the bureau per regulation as provided in
subdivision (a).
(c) (1) The English proficiency test or tests shall be given to
prospective students off campus by an independent test administrator
without charge to the student and in accordance with all procedures
and requirements specified by the test publisher. The English
proficiency test or tests shall be paid for by the institution and
shall be scored by an independent test administrator off campus.
(2) No employee or representative of the school shall be present
at the test location or shall in any way influence the giving,
monitoring, or scoring of the English proficiency test or tests.
(3) (A) The student alone shall complete the test without any
assistance from any person or institution, except as provided in
subparagraph (B).
(B) Nothing in this paragraph prevents an institution from
providing nonsubstantive assistance to accommodate the disability of
a handicapped person otherwise qualified to take the test.
(d) If a prospective student fails to achieve a score as required
by subdivision (b), then another English proficiency test shall not
be administered to the prospective student for at least one week or
the period specified by the test developer, whichever is longer. Any
subsequent English proficiency test given to the same prospective
student shall be a substantially different form of the same test or a
substantially different test than the test which the prospective
student failed.
94953. If a student does not have a high school diploma , as
defined in subdivision (b) of Section 94951 , he or she may
take an ability-to-benefit test as required by federal law and
regulation (34 C.F.R. 668 et seq.) in order to qualify for federal
and state financial aid. A nonnative speaker of English must take and
pass an English proficiency test as indicated in subdivision (a) of
Section 94952 whether or not the student is a high school graduate
and has a high school diploma.
94953.1. A student may not waive any provision of any section of
this article. Any waiver or limitation of any substantive or
procedural right or remedy or provision or section set forth in this
article is in violation of this section and is void and
unenforceable.
94953.2. (a) If an institution violates any provision of this
article, the enrollment agreement and any other contract with the
institution shall be unenforceable, and the institution shall refund
all payment by or on behalf of the student as well as any fees,
penalties, or interest associated with the educational loans the
student obtained to attend the institution and enroll in the course
of instruction.
(b) Notwithstanding any provision in an agreement with the
institution, a student may bring an action for a violation of any
section or subdivision of this article or for an institution's
failure to comply with any section or subdivision of this article
which requires that nonnative speakers of English take and pass an
English proficiency test or tests prior to enrolling in a course of
instruction given in English. Upon prevailing, the student shall be
entitled to the recovery of damages, equitable relief, any other
relief authorized by any section of this article, or any other
provision of law, and reasonable attorney's fees and costs.
(c) If a court or judge or trier of fact finds that a violation
was willfully committed or that the institution or any representative
or employee thereof failed to refund all payment and other costs as
required by subdivision (a), on the student's request or written
demand, the court, the judge, or trier of fact, in addition to the
relief awarded under subdivision (a) shall award a civil penalty of
up to three times the amount of the tuition and loan-related charges
indicated in subdivision (a).
(d) The remedies provided in this article supplement, but do not
supplant, the remedies provided under other provisions of law.
(e) An action brought under this section shall be commenced within
three years of the discovery of the facts constituting grounds for
commencing the action.
(f) Any provision in any agreement that purports to require a
student to invoke any grievance dispute procedure established by the
institution or any other procedure before bringing an action to
enforce any right or remedy authorized by this article is void and
unenforceable.
(g) A student may assign his or her causes of action for a
violation of this article to the bureau, or to any state or federal
agency that guaranteed or reinsured a loan for the student or
provided any grant or other financial aid.
94954. (a) Any violation of this article shall not be considered
a minor violation within the meaning of Section 94935.
(b) The bureau shall have the authority pursuant to Section 94932
and this article to investigate any institution's compliance with
this article.
(c) The bureau may compel compliance with the provisions of this
article and order restitution as provided in subdivision (a) of
Section 94953.2 for the students with respect to whom the violations
occurred. The bureau is not limited to the remedies set forth in
Sections 94933 and 94937 or any other provision of this chapter and
such remedies shall include issuing an order prohibiting the future
enrollment of nonnative speakers of English until the institution has
come into compliance with this article.
(d) The bureau shall investigate any claim or complaint that an
institution has violated this article. If it finds a violation, the
bureau shall order restitution in accordance with subdivision (a) of
Section 94953.2 to any student or prospective student. If the
complaint involves a student or students who are no longer attending
the institution, the bureau shall have up to 120 days to order
restitution and compliance, up to six months if the practice was
systemic or happened to more than one student, and up to nine months
if other campuses of the institution were violating this article. If
the violation involved more than one student, the enrollment of
nonnative speakers of English shall be suspended until the bureau is
satisfied that the institution is in compliance with this article.
For good cause the bureau can extend the deadlines in this section by
30 days.
(e) The bureau shall investigate whether the violation was
systemic or ongoing at the campus where the initial violation
occurred. If the bureau finds that violation was systemic or ongoing,
the bureau shall order restitution for those students who were
enrolled in violation of this article in accordance with the
provisions of subdivision (a) of Section 94953.2.
(f) The bureau shall also investigate the institution's compliance
with this article at its other campuses if noncompliance has been
found at any campus. If the bureau finds multiple or systemic
violations of this article at one campus of an institution, the
bureau shall issue an order immediately which prohibits the
institution from enrolling new nonnative speakers of English until
restitution is provided to the students with respect to whom the
violations occurred and a remedial program is in place so that
similar violations do not happen in the future.
(g) The bureau may use the citation process described in Section
94936 but it is not limited by the provisions in that section or the
time limits in this section. The hearing process set forth in
Sections 94936 and 94940 and elsewhere in this chapter apply but the
requesting of a hearing by the institution shall not stop or delay
the decision or order to suspend the enrollment of nonnative speakers
of English prospectively.
(h) The decision and findings in an administrative proceeding
conducted by the bureau shall not have any preclusive effect on any
claim or issue, nor be entitled to any deference, nor shall any
inference be drawn from the decision and findings in any action
brought by a student for a violation of this article. The court,
however, may consider all admissible evidence in that action
regardless of whether that evidence was presented in the
administrative proceeding.
94955. Any written contract or agreement for educational services
signed by a nonnative speaker of English with an institution shall
include an enrollment agreement which discloses that nonnative
speakers of English must take a test as provided in Section 94952.
The agreement must also include what test the individual, student, or
prospective student took, his score, and the required passing score.
The test the individual, student, or prospective student took and
his score must also be put in the student's file after he enrolls.
94956. The provisions of this article or the provisions of
sections within this article are severable. If any provision of this
article or provision of a section in this article or its application
is held invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid provision
or application.