Laws & Guidance ELEMENTARY & SECONDARY EDUCATION
Assessment

November 24, 2003

Honorable James A. Kadamus
Deputy Commissioner
Office for Elementary, Middle, Secondary and Continuing Education
The New York State Education Department
Room 875 EBA
Albany, New York 12234

Dear Deputy Commissioner Kadamus:

I am writing in response to your letter of May 30, 2003, in which you sought clarification about the annual assessment requirements for English language proficiency. Specifically, you asked for clarification regarding the provisions of Title I and Title III of the Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB), that require an annual assessment of English proficiency of students with limited English proficiency, as applied to students with the most significant cognitive disabilities. I apologize for the late response to your letter.

For students whose Individual Education Program (IEP) team determines that the cognitive disabilities are so significant that they cannot participate in the NYSESLAT, the State's test of English language proficiency for Title III and test of language arts and mathematics for Title I, New York may excuse those students from the NYSESLAT. In those cases, New York must use the New York State Alternate Assessment (NYSAA) or a similar local assessment to determine student proficiency relative to New York's academic standards, and may also use the NYSAA or a similar local assessment to monitor English language proficiency, as long as the following conditions are met. First, New York would need to define a standard for English language proficiency that can be applied to the alternate assessment. Second, New York must ensure that the alternate assessment is valid for both purposes. One approach for determining validity is to involve experts knowledgeable about language acquisition in the development, administration, and scoring process for the alternate assessment.

Using the NYSAA or a similar local assessment under these conditions would be an acceptable course of action if: (1) New York's language arts content standards are compatible with the assessment of both academic content and English language proficiency in the areas of reading, writing, speaking and listening; (2) the alternate assessment includes an assessment of student achievement on the critical Title III elements (i.e., listening, speaking, reading, and writing) and the language arts standards for Title I; and (3) the alternate assessment scoring rubric permits documentation of a full range of performance on this indicator.

Page 2 - Honorable James A. Kadamus

Please remember that, while Title I only requires students to be assessed in reading/language arts and mathematics in grades 3-8 and high school (by 2005-06), Title III of NCLB requires that limited English proficient students must be assessed for English proficiency in grades kindergarten through grade twelve. As you mention in your letter, the number of students who fall into this category must be limited, and would be dictated by the percentage ultimately determined by the Department following its proposed rule of March 20, 2003. We intend to finalize this regulation in the near future, in time for you to provide timely guidance to districts and schools in New York.

As you work through this process, please note that this letter does not constitute final approval of the NYSAA for these purposes. If New York were to pursue this option, it would need to submit evidence to the Department for peer review through the standards and assessment process to receive that approval. Also, please be aware that this letter does not indicate that the approach will comply with Federal civil rights requirements, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and requirements under the Individuals with Disabilities Education Act.

If you have additional questions about the nature of this alternate assessment and how it may be designed to measure both content achievement and English language proficiency, please contact Sue Rigney in the Office of Elementary and Secondary Education at 202-260-0931 or Kathleen Leos in the Office of English Language Acquisition at 202-205-4037, who can provide additional guidance.

Sincerely,
Ronald J. Tomalis
Acting Assistant Secretary
Office of Elementary and Secondary Education

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