San Diego State University

Title 5, California Code of Regulation

Division 1, Chapter 11

English Language Education for Immigrant Children

The provisions are cited directly from the SBE text and followed by commentary.

3. Adopt Section 11301. to read:

§ 11301. Knowledge and Fluency in English.

(a) For purposes of "a good working knowledge of English" pursuant to

Education Code Section 305 and "reasonable fluency in English" pursuant to

Education Code Section 306(c), an English learner shall be transferred from

a structured English immersion classroom to an English language mainstream

classroom when the pupil has acquired a reasonable level of English

proficiency as measured by any of the state-designated assessments approved

by the California Department of Education, or any locally developed assessments.

"Reasonable level of English proficiency" appears to be whatever the school

districts wish to define it to be. There is absolutely no accountability

here--no indication of what this term means in terms of language assessment,

literacy skills, or academic achievement. Language educators usually define

proficiency in terms of a placement on a five point scale, equivalent to the

Foreign Service Institute scale. A uniform system of rating is used so

educators can have a common set of terms of reference or measures. Why has

no such scale been adopted here? On what sound pedagogical principles will a

definition of "reasonable" be based--reasonable for what purpose? These

guidelines offer no guarantee that students will demonstrate readiness for

the mainstream. Nor does this definition ensure continuation in sheltered

immersion is justified.

(b) At any time, including during the school year, a parent or guardian may

have his or her child moved into an English language mainstream classroom.

This presupposes that immersion classrooms and mainstream classrooms will be

distinct entities whereby students can be "moved" from one to another. Does

this provision, and do these guidelines, mandate such a tracking and

grouping system within the schools? How is the decision made as to who

starts out in immersion in the first place? On what basis? Can a parent

decide that their child should merely start out in the mainstream, since

this move can take place at any time? Although this sounds like a logical

concession to parents whose children may be segregated into groups of

children with similar levels of English proficiency, are the schools are

ready to contend with the number of student transfers that may occur. The

reasons for moving students out of immersion may not be educational.

Mainstream teachers will have to contend with receiving new students with

minimal skills in English at any time during the year? Does a parent's

election to move a child into a mainstream class presume the waiver of

appropriate services for overcoming language barriers referred to below in

Section 11302?

(c) An English learner may be re-enrolled in a structured English immersion

program not normally intended to exceed one year if the pupil has not

achieved a reasonable level of English proficiency as defined in Section

11301 unless the parents or guardians of the pupil object to the extended

placement.

This regulation does not say by whom the child will be re-enrolled. It

implies that school officials will make this decision unless parents object.

At what point in the school year will parents be informed of the school's

decision or recommendation regarding re-enrollment? How will this be done,

orally or in writing? Which will be the "default mode" if the parents have

not provided consent in written form to re-enrollment? How do schools plan

for staffing, materials, etc. based on the uncertainty inherent in such

informed consent procedures?

The language of Proposition 227 clearly indicates that it will only be under

other than "normal" circumstances that a child would need to re enroll. Will

the State Board require the collection of statistics on the numbers of

students recommended or opting for re-enrollment? Will these statistics be

released to the public for purposes of school accountability?

4. Adopt Section 11302. to read:

§ 11302. Services for English Language Learners.

School districts shall continue to provide additional and appropriate

educational services to English learners in kindergarten through grade 12

for the purposes of overcoming language barriers until the English learners

have:

a) demonstrated English-language proficiency comparable to that of the

school district's average native English-language speakers; and

b) recouped any academic deficits which may have been incurred in other

areas of the core curriculum as a result of language barriers.

These appear to be "exit criteria" for the provision of special services.

They are actually more stringent that the former re-designation criteria

than under Chacon-Moscone. The "average native English-language speaker"

will score between in the 40-60 percentile on a standardized achievement test.

What is unclear is what the "appropriate educational servicesŠfor overcoming

language barriers" are. Nor is it clear how academic deficits, which are

anticipated in this statement, are to be recouped. What are these services?

Who will pay for these services, the state or the school districts?

Apparently, the Office of Civil Rights and other federal agencies will be

the ones to monitor whether or not they are "appropriate." No where is it

stated whether, or how, these services will be judged to be effective.

§ 11303. Parental Exception Waivers.

(a) Parents and guardians must be informed of the placement of their

children in a structured English immersion program and must be notified of

an opportunity to apply for a parental exception waiver.

What criteria will be used for placement? How much description of the

child's actual learning situation and grouping will be provided?

1) Parents and guardians must be provided with a full written description

and upon request from a parent or guardian, a spoken description of the

structured English immersion program and any alternative courses of study

and all educational opportunities offered by the school district and

available to the pupil. The descriptions of the program choices shall

address the educational materials to be used in the different options.

How can school district's comply with this provision unless they have

designed the SEI program, adopted and purchased materials, and decided upon

all "alternative courses of study." This provision appears to assume that

there will be an established bilingual education program that can be offered

to parents, even before the parental exception waiver process begins and

sufficient waivers are granted to form a class of alternative study. Unless

there is a full disclosure and description of programs, districts will be

guilty of "false advertising" for failure to deliver on their promises.

Also, what procedures will be in place to ensure that school districts in

fact present information in ways parents can understand in order to make

informed decisions. Issues of linguistically appropriate instruction are

complex. What measures will be taken to ensure that the explanations are

given by qualified administrators and teachers, and not by clerical staff or

other unqualified individuals?

(3) Parental exception waivers shall be granted unless the school principal

and educational staff have substantial evidence that the alternative program

requested by the parent would not be better suited for the pupil.

This provision does not make clear to whom the school principal and

educational staff must "make their case" if a waiver is denied.

3 (b) All parental exception waivers shall be acted upon by the school

within twenty (20) instructional days of submission to the school principal.

However, parental waiver requests under Education Code section 311(c) shall

not be acted upon during the thirty- (30)-day placement in an English

language classroom. These waivers must be acted upon either no later than

ten (10) calendar days after the expiration of that thirty- (30)-day English

language classroom placement or within twenty (20) instructional days of

submission of the parental waiver to the school principal, whichever is later.

This appears to say, by not saying otherwise, that parental exception

waivers can be submitted at any time after the 30 days and that they must be

acted upon within two weeks of the end of the 30 day period. What does

"acted upon" mean?--Either granted or denied, or actually having the child

placed in an "alternative course of instruction"? At what point does the

school district have to pull together a program for the waiver grantees? If

the numbers reach 20 at the school at any point during the school year, do

parents have the right to demand the formation of an "alternative course of

instruction"? These "alternative" programs will only operate for 7.5 months

of the nine month school year. How will parity of curriculum and program

quality be assured under fewer numbers of days of instruction?

These provisions appear to establish conditions whereby at the end of the

required 30 days plus the 10-20 day administrative requirement for

processing waivers, or before for mainstream placements, most or all

students could transfer out of an immersion classroom. What would the school

district do if this occurs? Will there be a minimum number of students

before an immersion class would either operate after the required waiver

period or would these classes be cancelled?

(a) Upon written request of the State Board of Education, school district

governing boards shall submit any guidelines or procedures adopted pursuant

to Education Code section 311 to the State Board of Education for its review.

This appears to be an approval process of some sort, or is this merely for

informational purposes? The law says that these guidelines must be approved

by the SBE. To whom is the SBE accountable for establishing criteria

evaluating school districts' guideline? Is there an appeals process for

school districts? This is an important provision. However, there must be a

balance between school districts' rights to local control and prevention of

abused according to the spirit of 11303 (3) above.

(b) Any parent or guardian who applies for a waiver under Education Code

section 311 may request a review of the school district's guidelines or

procedures by the State Board of Education. The sole purpose of the review

shall be to make a determination as to whether those guidelines or

procedures comply with the parental exception waiver guidelines set forth in

Section 11303.

Apparently parents can only see the guidelines if they are applying for a

waiver, and then for the "sole purpose" of making sure that the waiver

guidelines are congruent with the provisions of Proposition 227. What is the

intent of this regulation? Why is there a need to limit the purpose for

which parents can review the guidelines? Is it even possible to limit the

purpose of such a review?

7. Adopt Section 11305. to read:

§ 11305. Community Based English Tutoring.

(b) The governing boards of local educational agencies may disburse these

funds at their discretion to carryout the purposes of this section. Local

educational agency governing boards shall require providers of adult English

language instruction which receive funds authorized by Education Code

sections 315 and 316 to maintain evidence that adult program participants

have pledged to provide personal English language tutoring to California

school pupils with limited English proficiency.

It is not clear if whether this provision calls for evidence of pledging or

evidence that pledges are being carried out. Proposition 227 appears to

direct this funding to the parents of LEP students. This provision is

unclear regarding who will be the recipients of these adult programs.

Therefore, it appears to expand the benefits of these programs far beyond

the group for whom they were intended.

Jill Kerper Mora

San Diego State University

School of Teacher Education NE 92

San Diego, CA 92182-1153

Office 619 594-6110

FAX 619 594-7828