About a month ago, I was admiring the persistence of Foch "Tut" Pensis, the Superintendent of the Coachella Valley Unified School District in California, in fighting aspects of the No Child Left Behind Act that he believes to be unfair for English-language learners.
Well, on May 9, Coachella Valley and eight other school districts filed an appeal in a California state court contending that a judge from the San Francisco Superior Court was wrong in ruling a year ago that the court didn't have the authority to tell the state how to comply with NCLB regarding the testing of English-learners. The districts argue that the state is not testing ELLs in a "valid and reliable" manner, as stipulated by NCLB, because it tests them for accountability purposes only in English.
I spoke by telephone this week both with Mary Hernandez, a lawyer for the plaintiffs, and with Elizabeth Leavengood, a lawyer who is representing the California Department of Education in the case. At issue in the appeal is that the judge ruled the duties given to California by NCLB are "discretionary" not "mandatory," and decided that the state hadn't abused its discretion in implementing the law. The appeal argues that "the determination that NCLB imposed no duties on the state was erroneous."
Ms. Hernandez pointed out that the battle is still far from over. The San Francisco Superior Court judge still hasn't had a chance to rule on the claims of the original case that California is violating the rights of ELLs under the California constitution by testing them only in English. "They are denied equal access to integral components of the public education system that other children have access toand that is meaningful participation in the accountability system," Ms. Hernandez said last week.
Meanwhile, Coachella Valley USD, where more than 60 percent of students are ELLs, faces a possible state takeover under NCLB because 19 of its 21 schools haven't met adequate yearly progress for four years in a row.