Meeting of the Board of Regents | July 2003

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	James A. Kadamus
COMMITTEE:	Full Board
TITLE OF ITEM:	Addendum to BR (CA) 1 -- Assessment of Public Comment on Proposed Amendment to the Regulations of the Commissioner Relating to the Education of Students with Limited English Proficiency
DATE OF SUBMISSION:	July 9, 2003
PROPOSED HANDLING:	Action
RATIONALE FOR ITEM:	Comply with Federal Legislation
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY:

Since the Board received BR (CA) 1, we have received public comment on the proposed amendment to Part 154 of the Regulations of the Commissioner relating to the education of students with limited English proficiency. Attached is an Assessment of Public Comment for your consideration.

 

 

Attachment

PROPOSED AMENDMENT OF PART 154 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 207, 215, 2117, 3204, 3602 AND 3713, RELATING TO THE EDUCATION OF STUDENTS WITH LIMITED ENGLISH PROFICIENCY

Since publication of a Notice of Revised Rule Making in the State Register on May 14, 2003, the State Education Department ("the Department") has received the following comments:

COMMENT:

Seventy-seven letters expressed support relating to the assessments for initial identification and annual English language proficiency. This measure will ensure proper placement of Limited English Proficiency (LEP) students in bilingual education and English as a second language (ESL) programs; reliably assess their annual progress toward attaining English proficiency through uniform statewide criteria; conform Part 154 with the federal No Child Left Behind Act (NCLB); and provide an equitable and consistent manner to monitor annual progress. The merging of the advanced and transitional levels will eliminate confusion between transitional level of proficiency and transitional instructional services.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

It was suggested that: 1) the designated level be indicated; 2) the address for ordering the LAB-R tests be included; 3) a paragraph on Title III parent notification requirements be included.

DEPARTMENT RESPONSE:

Regarding the suggestions: 1) the LEP designated level has not yet been established but will be made available as soon as it is established; 2) school districts outside NYC will receive directions on how to order the LAB-R; the NYC Department of Education will make copies available to schools in NYC; 3) a parent notification piece consistent with NCLB, Title III requirements is included in section 154.4(f)(1) and (2).

COMMENT:

The amendment will standardize the instruments (NYSESLAT and the LAB-R ) used throughout the State. The alignment of the NYSESLAT to the State ESL and English Language Arts (ELA) standards will allow LEP students to demonstrate growth in English development.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The new assessments and the change in proficiency levels will benefit students whose first language is not English. The designated cut-off on the NYSESLAT should be more rigorous than the current 40th percentile standard.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The provisions relating to the LAB-R and the NYSESLAT, and the language proficiency levels will make the system of initial identification and continued eligibility of LEP students consistent throughout the State. Language proficiency levels will no longer be confused with the transitional services provided to exited LEP students.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The adoption of the NYSESLAT and the LAB-R will result in continuity and stability of ESL instruction across NYS; promote the uniform documentation of progress annually and across districts; assist districts in meeting Part 154 requirements; result in better assessment of standards; and help educators refine services and report outcomes.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The new assessments for initial identification and achievement will ensure consistency to services for LEP students across the State. Because both tests measure all four skills, it is an improvement over the previous regulations which based placement and exiting decisions on reading skills only. The NYSESLAT will ensure districts' accountability for the yearly progress of LEP students, resulting in districts devoting needed resources to their ESL programs.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The ESL standards, aligned with the ELA standards, will facilitate the LEP student transition into ELA classes and ensure students will be tested on what they were taught. The NYSESLAT tests all four modalities, which is important at the secondary level where students are preparing to take the English Regents Exam.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The deletion of the percentile mode and the adoption of the NYSESLAT will help educators plan standards-based instructional practices for teaching and learning linked to student performance.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

It was recommended that the proposed regulation: 1) provide consideration of Pre-K for years of service and allow use of funds for personnel and resources; 2) specify role of teachers in administering the LAB; and 3) specify reporting requirements under Part 154.

DEPARTMENT RESPONSE:

Regarding the three recommendations: 1) Part 154 specifically provides for a K-12 program and is therefore inapplicable to Pre-K programs; 2) and 3) - these are recommendations that are addressed in the Department�s guidelines for LEP students.

COMMENT:

It was suggested that we: 1) omit 154.2 [(d)] and [(e)]; 2) define bilingual education as consisting of three components: English, ESL and native language; and 3) indicate that ESL instruction must be provided by a NYS certified ESL teacher.

DEPARTMENT RESPONSE:

Regarding the three suggestions: 1) bracketed language indicates that language will be deleted; 2) there are only two components in a bilingual program. In the language arts component instruction is delivered through English, ESL and native language; and, 3) ESL certification requirements are addressed in Commissioner's Regulations Part 80.10.

COMMENT:

The NYSESLAT and the LAB-R will result in a more accurate assessment of students� instructional/linguistic needs leading to better educational services. Support was expressed for the reduction of ESL levels, from four to three.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The NYSESLAT is a poor instrument to measure academic language proficiency and will exit students prematurely and cause them to struggle in mainstream classrooms. The standards for mainstream students seem disproportionate to those for LEPs and that with this new initiative we are moving back to the "sink or swim situation".

DEPARTMENT RESPONSE:

The Department does not concur with these comments. Under the Department�s coordination and collaboration with ETS, a group of NYS field practitioners, with expertise and experience in the education of LEP students, worked together to develop the NYSESLAT. Once developed, the test has been field-tested and extensive psychometric analyses have been conducted. The results of such analyses attest to the reliability and validity of the test. Regarding the concern with the different set of standards, the Department has worked very closely with bilingual/ESL teachers and administrators and major State organizations to align the State standards with the ESL standards for LEP students. As a result, an ESL standards document has been developed and will soon be officially adopted by the Department.

COMMENT:

The NYSESLAT and the LAB-R are inadequate measures because the speaking and listening sections are based on social rather than academic language and the reading section does not differentiate among 2nd, 3rd, and 4th graders. The students will test out and "fall on their faces". The amendments "fly in the face of research" and barely address the Basic Interpersonal Communication Skills (BICS) and ignore the Cognitive Academic Language Proficiency (CALP) or Cognitive Academic Language Learning Approach (CALLA), and finally, although not intended, there is a perception of discrimination in the amendments.

DEPARTMENT RESPONSE:

The Department does not concur with these comments. Under the Department�s coordination, in collaboration with ETS, the NYC Department of Education and NYS educators, with expertise and experience in the education of LEP students, the NYSESLAT and the LAB-R were developed. Both tests have been field-tested and extensive psychometric analyses conducted. The results of such analyses attest to the reliability and validity of the tests. According to these results the tests measure what they are supposed to measure-English language proficiency. Furthermore, the NYSESLAT was developed to assess the range of language skills available to the children including both the social and context rich language skills and the academic and context poor skills. The item calibration model and the standard setting are sensitive to these developing skills. Exit criteria and criteria for progress from ESL level to ESL level were identified through standard setting studies conducted using the best judgments of ESL teachers, field test data and operational test data. Finally, the adoption of a uniform, standards-based assessment, is not only fair and unbiased but will allow LEP students to demonstrate their English language proficiency in terms of one set of standards and ensure proper identification and appropriate program placement. The Department will ensure that LEP students are provided opportunities to achieve the same educational goals and standards as the general student population.

COMMENT:

The NYSESLAT is a much better test than the LAB and the situations presented are more relevant to students� lives and experiences. The test is too long and scheduled too late in the semester. The test should be shortened and administered early in the semester or in two parts, in the fall and the spring.

DEPARTMENT RESPONSE:

The results of the first administration will guide the development and administration of the 2003-2004 version. Adjustments will be made as appropriate and necessary.

COMMENT:

The uniform assessment for initial identification and English proficiency and the merging of the advanced and transitional levels will strengthen the Part 154 program, support the NCLB, and eliminate confusion among educators.

DEPARTMENT RESPONSE:

The Department concurs.

COMMENT:

The regulations support bilingual education programs, the new assessment instruments and English language support services for LEP/English Language Learners (ELLs). It was suggested that: 1) safeguards to ensure proper identification and services are necessary; 2) correlation between LAB-R and NYSESLAT scores is needed; 3) transitional services, provided and evaluated, must be ensured; 4) recommendations for additional language for Parts 154.2(a)(2), (b)(c) and 154.2(e)(2); and 5) that the regulations should allow dual language programs.

DEPARTMENT RESPONSE:

Regarding the suggestions: 1) the uniform assessment will result in improved identification and placement; 2) the population has not taken both tests yet. When the standard setting was done on NYSESLAT, the standards on the LAB-R were considered. The Department will be studying this to a greater extent as more data is required; 3) LEA�s must report the progress made by former LEP/ELL students in meeting the State academic content and student achievement standards for two years after exiting programs; 4) the Department will review the correspondents� recommended language; and 5) implementation of dual language programs is strongly recommended and supported by over two million dollars in Categorical funds.

COMMENT:

Concern was expressed regarding: 1) correlation between LAB-R and NYSESLAT scores; 2) accuracy of NYSESLAT in predicting success in subject area achievement tests for LEPs who exit ESL/bilingual services; 3) use of NYSESLAT as the sole criterion for exiting students rather than multiple measures of assessment; 4) ability of NYSESLAT to assess statewide ESL/Bilingual program needs; 5) whether students will receive transitional support ensuring academic success as measured by high school graduation rates; and 6) unavailability of an exit score on the NYSESLAT.

DEPARTMENT RESPONSE:

Regarding the correspondent�s concerns: 1) the LEP population has not taken both tests yet. When the standard setting was done on the NYSESLAT, the standards on the LAB-R were considered. NYSED will be studying this to a greater extent as more data is required; 2) the task of the standard setting groups was to identify the point at which the child could succeed in any environment - bilingual or monolingual English. The cut scores reflect the point at which they feel success is not limited by lack of English proficiency; 3) the NYSESLAT provides uniform standardized results used for a particular purpose � to determine the level of English proficiency; the multiple measures recommended in the standards provide results that will guide appropriate programmatic instructional decisions for LEP students; 4) the test offers vertical scaling (across grades) in total battery, listening and speaking, and reading and writing. It gives a considerable amount of information on the skills of the students because it has cut points demarcating beginning, intermediate, advanced, and exit-ready skills in each of those scales; 5) LEAs are held accountable on the progress made by LEP/ELL students in meeting the State standards after these children no longer receive services and must provide data to the Department; and 6) the Department has done the studies and will continue to study the mechanisms for providing scores.