COURT SAYS ENGLISH-ONLY TESTS OK IN SCHOOLS

Bob Egelko, SAN FRANCISCO Chronicle Staff Writer

(07-30) 17:21 PDT SAN FRANCISCO -- California is entitled to administer school achievement tests and high school exit exams in English to all students, including the nearly 1.6 million who speak limited English, a state appeals court ruled Thursday.

The First District Court of Appeal in San Francisco rejected arguments by bilingual-education groups and nine school districts that English-only exams violate a federal law's requirement that limited-English-speaking students "shall be assessed in a valid and reliable manner."

The federal law, the No Child Left Behind Act of 2002, neither requires nor forbids testing in a student's native language and leaves such decisions largely up to the states, the court said in a 3-0 ruling. It noted that the U.S. Department of Education has approved the state Board of Education's testing plans since 2002, though department auditors recently suggested more accommodations for limited-English-speakers.

The law does not authorize a court to act as "the official second-guesser" of the reliability of a state's testing methods, Justice Timothy Reardon said in Thursday's ruling, which upheld a San Francisco judge's 2007 decision.

He also said developing native-language tests would be difficult, because students in California speak at least 40 languages. The state's voters approved a ballot measure in 1998 that prohibits bilingual instruction except in limited cases, Reardon said, and testing students in their primary language "could send confusing messages throughout California's education system."

Marc Coleman, a lawyer for the school districts and advocacy groups, said they would consider an appeal to the state Supreme Court.

"The court dodges the essential issue in the lawsuit, which is: What is the testing supposed to measure?" he said. "If you don't have to evaluate the testing, California gets a free pass on testing kids (who) don't speak English, using tests that they have literally no evidence of their validity."

No Child Left Behind requires states to test all students in math and reading or language arts once a year in grades three through eight, and at least once in grades 10 through 12.

For students who speak limited English, the law requires "reasonable accommodations," which can include extra time, use of dictionaries, and giving instructions in a student's native language. States can exempt students from the test during their first year in a U.S. school.

The law penalizes any school if any identified group of students falls short of state academic standards or fails to meet certain benchmarks for progress in any year. The penalty for several years of noncompliance can include changes in a school's administration.

The nine districts in Thursday's case all have schools that have been penalized under the law, including one school that has been placed in trusteeship, Coleman said.

In California, students are tested annually in grades two through 11 and must pass an exit exam to get a high school diploma.