BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: SB 675
AUTHOR: Wright
AMENDED: February 18, 2011
FISCAL COMM: Yes HEARING DATE: March 30, 2011
URGENCY: No CONSULTANT:Kathleen Chavira
NOTE : This bill has been referred to the Committees on
Education and Business, Professions, and Economic
Development. A "do pass" motion should include referral to
the Business, Professions, and Economic Development
Committee.
SUBJECT : Private postsecondary education and non-English
speaking
students.
SUMMARY
This bill requires that private postsecondary education
institutions subject to the California Private
Postsecondary Education Act of 2009 (Act) administer a test
of English language proficiency to a nonnative speaker of
English, as defined, prior to enrolling the student, and
establishes various related requirements, rights, remedies,
and investigative authorities.
BACKGROUND
Current law establishes the California Private
Postsecondary Education Act (Act) of 2009, which provides
for the approval, regulation, and enforcement of private
postsecondary educational institutions. Among other things,
the Act requires that, before an "ability-to-benefit"
student (defined as a student without a certificate of
graduation from a school providing secondary education) may
execute an enrollment agreement, the institution shall have
the student take an independently administered examination
from the list of examinations prescribed by the United
States Department of Education pursuant to federal law, and
prohibits the student from enrolling unless the student
achieves a score, as specified by the United States
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Department of Education, demonstrating that the student may
benefit from the education and training being offered.
(Education Code � 94904)
The Act also requires that an enrollment agreement be
written in language that is easily understood and that if
English is not the student's primary language, and the
student is unable to understand the terms and conditions of
the enrollment agreement, the student shall have the right
to obtain a clear explanation of the terms and conditions
and all cancellation and refund policies in his or her
primary language. Current law also requires that if the
recruitment leading to enrollment was conducted in a
language other than English, the enrollment agreement,
disclosures, and statements must also be in that language.
(Education Code � 94906)
ANALYSIS
This bill :
1) Prohibits an institution from entering into an
agreement for a program or course of instruction given
in English with a prospective student who is a
nonnative speaker of English unless the person first
takes and passes an English proficiency test, as
specified. More specifically, it:
a) Requires that any English
proficiency test(s) be given by an independent
test administrator, off campus, without charge to
the student, and according to procedures and
requirements specified by the test publisher.
b) Requires the institution to pay
for the test(s) and that the test be scored by an
off campus independent test administrator.
c) Prohibits any employee or school
representative from being at the test location or
in any way influencing the giving, monitoring or
scoring of the test(s).
d) Requires that the student alone
complete the test without assistance, but
clarifies that nonsubstantive assistance to
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accommodate the disability of a handicapped
person is not prevented.
e) Prohibits the administration of
another English proficiency test for at least a
week, or longer, as specified, if a prospective
student fails to achieve a passing score, and
requires that subsequent tests administered to
the student be substantially different.
f) Requires that the proficiency
tests and cutoff scores demonstrate that the
student has the necessary English language
proficiency in reading, writing, listening, and
speaking to successfully complete the
postsecondary course of instruction in which the
student seeks to enroll.
g) Authorizes the demonstration of
English proficiency to be accomplished by any of
the following:
i) Minimum scores, as
specified, on the paper-based,
computer-based, or Internet-based Test of
English as a Foreign Language (TOEFL).
ii) A minimum score of 4.5 on the
IELTS.
iii) Meeting or exceeding cutoff scores
(as established by Bureau regulation) for
any English proficiency test authorized by
the Bureau.
2) Requires a nonnative speaker of English to take and
pass an English proficiency test whether or not the
student is a high school graduate and has a high
school diploma.
3) Declares that a student may not waive any of the
bill's provisions and that any waiver or limitation of
procedural rights or remedies established by the bill
is void and unenforceable.
4) Provides that violation of any of the bill's
provisions by an institution:
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a) Renders the enrollment agreement
and any other contract with the institution
unenforceable.
b) Requires the institution to refund
all payments made by, or on behalf of, a student
including fees, penalties, or interest associated
with related educational loans.
c) Establishes the right of a student
to bring a private right of action against the
institution and outlines the remedies, relief,
and penalties and student rights that result,
including the right to attorney's fees and costs.
5) Narrows the existing compliance authority of the
Bureau by prohibiting the provisions of the bill from
being construed as a "minor" violation by the Bureau.
6) Establishes the authority of the Bureau to investigate
and compel compliance with the bill's provisions and
to order restitution, and expands the Bureau's
authority to pursue remedies for these students beyond
those established by the Act.
7) Requires any written contract or agreement for
educational services signed by a nonnative speaker of
English to:
a) Disclose the requirement that the
student take an English proficiency test.
b) Include the specific test taken,
score achieved, and required passing score and
that this information be placed in the student's
file after enrollment.
8) Provides that the provisions of the bill are
severable.
9) Makes a number of findings and declaration regarding
the challenges faced by immigrant students and the
intent of the Legislature to protect these students.
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STAFF COMMENTS
1) Need for the bill . According to the author, this
bill is necessary to address two practices of certain
private postsecondary schools. "First, some students,
with only limited education in their own country get
access to federal financial aid by obtaining a phony
high school diploma with the help of these private
postsecondary schools. A second group of immigrant
students have graduated from a legitimate high school
in the United States but their English language skills
are not sufficient to satisfactorily complete a
postsecondary course of instruction in English and
obtain a degree. This bill will prohibit private
postsecondary institutions from entering into an
agreement with nonnative speakers of English unless
the student passes an English proficiency test, and,
in the event of violation, make any enrollment
agreement unenforceable and require the student's
tuition money to be returned/repaid."
2) Prior law . The California Private Postsecondary
Education Act of 2009, revised and recast the Private
Postsecondary and Vocational Education Reform Act of
1989 (which became inoperative in 2007). Prior law
required that students pass a test indicating the
student had attained adequate proficiency in oral and
written English to comprehend instruction in English.
Current law makes no provision for any such
assessment. This bill would address this omission by
restoring language based upon relevant provisions of
the prior law.
3) Problematic definitions . This bill defines various
terms for purposes of the bill. Staff notes the need
to clarify and narrow several of these definitions to
more appropriately focus the bill's provisions on the
populations it intends to protect. These include the
following:
a) This bill generally uses definitions that
parallel existing provisions in the Education
Code used to define and identify K-12 students in
need of language support service to access the
academic curriculum in California's public
schools. In order to ensure consistency with
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existing definitions and terminology, staff
recommends the bill be amended to replace
"limited English proficient" with "English
learner." on page 4 line 35 and on page 6 line 7,
and to delete lines 16-18 on page 5.
b) This bill uses an overly broad definition of
a "nonnative English speaker" in an attempt to
ensure the bill's application to immigrant
students who may have graduated from a U.S. high
school but had limited instruction in the United
States. Staff recommends the bill be amended to
narrow the definition of a nonnative speaker of
English on Page 5 lines 13-15 to "A person who
was born in a country other than the United
States and who attended kindergarten or any
grades 1-12, inclusive, in a United States school
for three or fewer years," consistent with
existing definitions of immigrant students in
state and federal law.
c) This bill defines "successful completion of
a course...." as the student obtaining a "C" or
better and requires that English proficiency
testing demonstrate that a student can achieve
such a grade before enrolling the student. It is
unclear how an institution or exam can identify
and predict the various factors that affect what
grade a student will achieve in a class. Staff
recommends the bill be amended to delete, on
lines 37 and 38, page 5, "with a grade of "C" or
better."
4) Too statutorily prescriptive ? This bill statutorily
establishes specific scores on specified tests as
meeting the requirements for English proficiency.
Staff notes that the level of English proficiency
necessary may vary depending upon the nature of the
instructional program. Additionally, prescribing
scores in statue limits the flexibility to adjust them
as tests change or better information on the level of
English necessary to succeed in different programs
becomes available.
Staff recommends the bill be amended to delete the
specific scores to be achieved and instead require
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that the Bureau, by regulation, establish the cutoff
scores necessary for any authorized English language
proficiency exam.
5) High School Diploma . This bill establishes a
definition for "high school diploma" in an effort to
address concerns about the acceptance of "phony" high
school diplomas to opt out of the required "Ability to
Benefit" test for students with no high school
diploma. Staff notes that the definition of a high
school diploma is consistent with that used by the
California Student Aid Commission to determine Cal
Grant Eligibility. To further clarify the bill's
intent, staff recommends the bill be amended on page 7
lines 9-11 to cross reference the definition of "high
school diploma" in section 94951 and to require that
an "ability to benefit" test be administered unless a
student has a "high school diploma" as defined in
section 94951. Staff further recommends the bill be
amended to delete lines 16-18 on page 5, since, per
amendments in staff comment #3(b), the definition of
nonnative speaker more appropriately identifies the
population that has a legitimate high school diploma
which the bill seeks to protect.
6) Need to streamline redundant provisions . As drafted,
the bill unnecessarily restates several requirements
around proficiency testing, potentially confusing and
complicating the bill's provisions. Staff recommends
the bill be amended on page 6 to:
a) Delete lines 3-4 , and line 5 through the
period
b) Delete "English proficient" on page 7
c) Delete "which includes the ability" on lines
8 and 9
d) Delete "a" on line 10 and delete
"postsecondary course of instruction and
particularly" on line 11
7) Legislative findings and declarations . This bill
makes legislative findings and declarations that
assert that private postsecondary schools have engaged
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in fraudulent activity. Is it necessary to make these
allegations in the bill in order to address issues
faced by these students? Should the Legislature make
any declarations alleging unlawful activity? Staff
recommends the bill be amended to delete lines 20-22
on Page 2 and lines 1-4 on Page 3, and to delete lines
24-28 on page 3.
8) Consumer protection provisions . This bill establishes
rights and authorities specific to nonnative English
speakers that are not available to other students,
including the right to pursue private action against a
school. This bill has also been referred to the
Business, Professions, and Economic Development
Committee, which generally reviews issues relative to
business and professional practices and regulations,
among other things. Issues that may be better suited
to that committee include the following:
Should non-native English speakers be
granted rights and authorities not available to
other students?
Should the authority of the Bureau to
designate violations as minor be eliminated for a
single group of students?
Should the Bureau be granted unique
investigative authorities around violations that
affect non-native speakers of English?
SUPPORT
Legal Aid Foundation of Los Angeles
OPPOSITION
California Association of Private Postsecondary Schools
(CAPPS)