Existing law requires each school district that has one or more pupils who are English learners, and, to the extent required by federal law, each county office of education and each charter school, to assess the English language development of each pupil in order to determine the pupils level of proficiency, as specified. Existing law requires the State Department of Education, with the approval of the State Board of Education, to establish procedures for conducting the assessment and for the reclassification of a pupil from English learner to English proficient. Existing law requires those reclassification procedures to utilize multiple criteria in determining whether to reclassify a pupil as proficient in English, including, among other things, an assessment of language proficiency using the English language development test that is developed or acquired by the Superintendent of Public Instruction, as provided. Existing law requires the assessment for initial identification to be conducted upon the initial enrollment of a pupil, as provided. Existing law requires the English language development test to assess pupils in kindergarten and grade 1 in English listening and speaking, as provided.

This bill would define initial enrollment for the purposes of the above-described provision regarding initial identification to exclude enrollment in a transitional kindergarten program. The bill would expressly state that the above-described requirement for pupils in kindergarten to be assessed in English listening and speaking does not include pupils in transitional kindergarten.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires each school district that has one or more pupils who are English learners, and, to the extent required by federal law, each county office of education and each charter school, to assess the English language development of each pupil in order to determine the pupils level of proficiency, as specified. Existing law requires the State Department of Education, with the approval of the State Board of Education, to establish procedures for conducting the assessment and for the reclassification of a pupil from English learner to English proficient. Existing law requires those reclassification procedures to utilize multiple criteria in determining whether to reclassify a pupil as proficient in English, including, among other things, an assessment of language proficiency using the English language development test that is developed or acquired by the Superintendent of Public Instruction, as provided. Existing law requires the assessment for initial identification to be conducted upon the initial enrollment of a pupil, as provided. Existing law requires the English language development test to assess pupils in kindergarten and grade 1 in English listening and speaking, as provided.

This bill would define initial enrollment for the purposes of the above-described provision regarding initial identification to exclude enrollment in a transitional kindergarten program. The bill would expressly state that the above-described requirement for pupils in kindergarten to be assessed in English listening and speaking does not include pupils in transitional kindergarten.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires each school district that has one or more pupils who are English learners, and, to the extent required by federal law, each county office of education and each charter school, to assess the English language development of each pupil in order to determine the pupils level of proficiency, as specified. Existing law requires the State Department of Education, with the approval of the State Board of Education, to establish procedures for conducting the assessment and for the reclassification of a pupil of a pupil from English learner to English proficient. Existing law requires those reclassification procedures to utilize multiple criteria in determining whether to reclassify a pupil as proficient in English, including, among other things, an assessment of language proficiency using the English language development test that is developed or acquired by the Superintendent of Public Instruction, as provided. Existing law requires the assessment for initial identification to be conducted upon the initial enrollment of a pupil, as provided. Existing law requires the English language development test to assess pupils in kindergarten and grade 1 in English listening and speaking, as provided.

This bill would define initial enrollment for the purposes of the above-described provision regarding initial identification to exclude enrollment in a transitional kindergarten program. The bill would expressly state that the above-described requirement for pupils in kindergarten to be assessed in English listening and speaking does not include pupils in transitional kindergarten.

Existing law requires each school district that has one or more pupils who are English learners, and, to the extent required by federal law, each county office of education and each charter school, to assess the English language development of each pupil in order to determine the pupils level of proficiency, as specified. Existing law requires the State Department of Education, with the approval of the State Board of Education, to establish procedures for conducting the assessment and for the reclassification of a pupil of a pupil from English learner to English proficient. Existing law requires those reclassification procedures to utilize multiple criteria in determining whether to reclassify a pupil as proficient in English, including, among other things, an assessment of language proficiency using the English language development test that is developed or acquired by the Superintendent of Public Instruction, as provided. Existing law requires the English language development test to assess pupils in kindergarten and grade 1 in English listening and speaking, as provided.

This bill would expressly state that the above-described requirement for pupils in kindergarten to be assessed in English listening and speaking does not include pupils in transitional kindergarten.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2268

Author:(Muratsuchi)

As Amended Ver:May 8, 2024

2/3 vote. Urgency

SUMMARY

Exempts, as an urgency measure, students in transitional kindergarten (TK) from being assessed for English language development using the English Language Proficiency Assessments for California (ELPAC).

Senate Amendment

Make a conforming change to exempt TK students from assessment upon initial enrollment

COMMENTS

Public Policy Institute of California (PPIC) analysis finds that even the oldest TK students are being over-identified as English learners (EL). The PPIC, in their report, Assessing Transitional Kindergarten's Impact on Elementary School Trajectories (2023), analyzed the EL identification patterns among 90,000 TK students enrolled in five large districts from 2014-15 through 2020-21, and found "stark differences in the timing of EL identification and reclassification due to TK." The PPIC concluded that, "Some students are identified in TK who would never have been identified had they started elementary school in kindergarten."

During the years covered in the PPIC analysis, students with birthdays on or before December 2nd were eligible for TK, so this group of students included only the oldest four-year olds. Because the findings below do not include younger four-year-olds, who are increasingly being assessed as schools implement universal TK by the 2025-26 school year, the effect on EL identification could be even more significant. The PPIC found:

1. Nearly 40% of students who enrolled in TK were classified as ELs in TK and kindergarten, compared to under 30% of kindergarteners who did not enroll in TK;
2. Students who enroll in TK are 10% more likely to ever be identified as ELs;
3. When the effect of TK on EL status is broken down by grade, TK assessment leads to an increased likelihood of being classified as an EL in kindergarten;
4. Overall, TK students are classified as ELs for about 40% of an academic year longer than their non-TK counterparts; and
5. Students who enroll in TK are both identified earlier and are more likely to ever be EL, with a higher likelihood of being EL in kindergarten for students who enrolled in TK versus those who did not.

Educators raise concerns about the developmental appropriateness of the ELPAC for TK students. State and federal law require that the state's ELD assessment be age- and developmentally-appropriate for students.

For some time, teachers have raised concerns about the developmental appropriateness of using the ELPAC to assess 4year-olds. They note that the information the ELPAC produces for this group of students is often not meaningful, and that it can lead to the misidentification of students as ELs who are developing language normally for their age. They also report that administering this assessment causes some young students considerable distress.

One teacher who administers the assessment, quoted in an article published by the New America Foundation, reported: "It's blank when I hand it out. And, in most cases, I'd say 99% [of the time], it's blank when they are done. Very few students [in TK] are able to participate."

According to the Author

"California's decision to fund universal pre-kindergarten was a monumental achievement which will improve the lives of our children for generations to come.

One unintended consequence of this laudable policy is that our youngest students are being assessed and classified as English learners using an assessment which was not designed for them. This assessment, the ELPAC, is an important instrument, but it is not developmentally appropriate, and has not been proven valid and reliable for use with all four-year-olds, as required by state and federal law.

For some time, educators around the state have expressed frustration with this requirement, reporting that the assessment does not yield useful information about children's language proficiency, and that it causes some children considerable distress. Research suggests that this practice is leading to an over-identification of our four-year-olds as English learners. This trend may accelerate as younger four-year-olds enroll in TK.

AB 2268 is intended to help the state course-correct and ensure that our children are not inappropriately assessed, so they can receive instruction and support based upon their true learning needs."

Arguments in Support

Early Edge California writes, "When the ELPAC was developed and field tested, it was not developed nor tested with the younger TK population enrolled in California public schools. Therefore, administering it to current TK students could lead to potential misidentification of English learners, negatively impacting their educational experience. Moreover, it may necessitate local educational agencies to provide services and support that are inappropriate and unnecessary for these students.

AB 2268 would protect the state's youngest emerging bilingual students by ensuring

they are not negatively impacted by the administration of an assessment ill-suited for their developmental stage."

Arguments in Opposition

None on file.

FISCAL COMMENTS

This bill has been keyed non-fiscal by the Office of Legislative Counsel.

VOTES:

ASM EDUCATION: 7-0-0

YES: Muratsuchi, Addis, Alvarez, Bonta, Flora, Hoover, McCarty

ASSEMBLY FLOOR: 73-0-7

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Bauer-Kahan, Megan Dahle, Gallagher, Grayson, Mathis, Rendon, Villapudua

SENATE FLOOR: 32-0-8

YES: Alvarado-Gil, Ashby, Atkins, Blakespear, Bradford, Caballero, Cortese, Dahle, Durazo, Eggman, Grove, Hurtado, Jones, Laird, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Allen, Archuleta, Becker, Dodd, Glazer, Gonzalez, Limón, Ochoa Bogh

UPDATED

VERSION: May 8, 2024

CONSULTANT: Tanya Lieberman / ED. / (916) 319-2087 FN: 0003501

 CONSENT  

Bill No: AB 2268

Author: Muratsuchi (D)

Amended: 5/8/24 in Senate

Vote: 27 - Urgency

SENATE EDUCATION COMMITTEE: 7-0, 5/29/24

AYES: Newman, Ochoa Bogh, Cortese, Glazer, Gonzalez, Smallwood-Cuevas, Wilk

ASSEMBLY FLOOR: 73-0, 4/11/24 - See last page for vote

SUBJECT: English learners: initial identification: English language proficiency assessment

SOURCE: California Association for Bilingual Education

Californians Together

Early Edge California

DIGEST:

This bill exempts, as an urgency measure, students in transitional kindergarten (TK) from being assessed for English language development using the English Language Proficiency Assessments for California (ELPAC). This bill excludes students in TK from being assessed for initial identification as an English learner upon their initial enrollment.

ANALYSIS:

Existing federal law:

1. Defines “English learner” to mean an individual who:
   1. Is age three through 21.
   2. Is enrolled or preparing to enroll in an elementary school or secondary school.
   3. Was not born in the United States or whose native language is a language other than English;
      1. Is a Native American or Alaska Native, or a native resident of the outlying areas; and
      2. Comes from an environment where a language other than English has had a significant impact on the individual’s level of English language proficiency; or
      3. Is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
   4. Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual:
      1. The ability to meet the challenging state academic standards;
      2. The ability to successfully achieve in classrooms where the language of instruction is English; or
      3. The opportunity to participate fully in society. (Title 20, United States Code (USC) § 7801)
2. Requires that each state plan demonstrate that local educational agencies (LEAs) in the state will provide for an annual assessment of English proficiency of all English learners; and requires that the assessments be aligned with the state’s English language proficiency standards. (Title 20, USC § 6311(b)(2)(G))
3. Requires that each state plan contain assurances that the state has appropriate procedures and safeguards in place to ensure the validity of the assessment process. (Title 20, USC § 6311)
4. Requires each LEA to use such assessment to assess annually the English language proficiency, including reading, writing, speaking, and listening skills, of all English learners in kindergarten through grade 12 in schools served by the LEA. Requires that the assessment:
   1. Be aligned with the state's English language proficiency standards;
   2. Be developed and used consistent with the requirements that the assessment be valid and accessible for use by all students, including those with disabilities and English learners; and
   3. Provide coherent and timely information about each student's attainment of the state's English language proficiency standards to parents. (Title 34, USC § 200.6)
5. Requires state plans to demonstrate that the state has adopted English language proficiency standards that:
   1. Are derived from the four recognized domains of speaking, listening, reading, and writing;
   2. Address the different proficiency levels of English learners; and
   3. Are aligned with the challenging state academic standards. (Title 20 USC § 6311 b(1)(F))

6) Requires that state plans describe how the state will establish and implement, with timely and meaningful consultation with LEAs representing the geographic diversity of the state, standardized, statewide entrance and exit procedures, including an assurance that all students who may be English learners are assessed for such status within 30 days of enrollment in a school in the state. (Title 20 USC § 6823)

Existing state law:

1. Requires each school district, and to the extent required by federal law each county office of education (COE) and each charter school, to assess the English language development of each student in order to determine the level of proficiency. (Education Code (EC) § 313)
2. Requires the assessment to be conducted upon initial enrollment, and annually, thereafter, during a period of time determined by the Superintendent of Public Instruction (SPI) and the State Board of Education (SBE), and until the student is redesignated as English proficient. (EC § 313)
3. Requires the assessment to primarily utilize the English language development test identified or developed by the SPI. (EC § 313)
4. Requires, subject to the approval of the U.S. Department of Education (USDOE) that the assessment for initial identification be conducted upon the initial enrollment of a student in order to provide information to be used to determine if the student is an English learner. (EC § 313)
5. Requires that these assessments be conducted in a manner consistent with federal statutes and regulations. (EC § 313)
6. Requires the SPI to review existing assessments that assess the English language development of students whose primary language is a language other than English, and requires that the assessment for initial identification and the summative assessment include, but not be limited to, an assessment of achievement of these students in English reading, speaking, and written skills. Requires the SPI to explore the option of a collaborative effort with other states to develop an assessment or series of assessments and share assessment development costs. (EC § 60810)
7. Requires that students in kindergarten and grade one be assessed in English listening and speaking, and, once an assessment is developed, early literacy skills. (EC § 60810)
8. Requires that, in the development and administration of the assessment for students in kindergarten and grade 1, the California Department of Education (CDE) minimize any additional assessment time, to the extent possible. To the extent that it is technically possible, items that are used to assess listening and speaking shall be used to measure early literacy skills. (EC § 60810)
9. Requires the CDE to ensure that the assessment and procedures for its administration are age and developmentally appropriate. States that age and developmentally appropriate procedures for administration may include, but are not limited to, one-on-one administration, a small group setting, and orally responding or circling a response to a question. (EC § 60810)
10. Requires that the initial and summative assessments, among other requirements:
11. Have psychometric properties of reliability and validity deemed adequate by technical experts.
12. Be aligned with the standards for English language development adopted by the SBE.
13. Be age and developmentally appropriate for students. (EC § 60810)
14. Defines long term English learner (LTEL) to mean a student who:
15. Is enrolled in any of grades six to 12, inclusive.
16. Has been enrolled in schools in the United States for six years or more.
17. Has remained at the same English language proficiency level for two or more consecutive prior years, or has regressed to a lower English language proficiency level, as determined by the English language development test identified or developed pursuant to Section 60810, or a score determined by the Superintendent on any successor test.
18. For a student in any of grades six to nine, inclusive, has scored far below basic or below basic on the prior year’s English language arts standards-based achievement test. (EC § 313.1)
19. Requires the SPI to develop procedures for California State Preschool Program (CSPP) contractors to identify and report data on dual language learners enrolled in a CSPP, and requires those procedures to include, at a minimum:
20. The distribution and collection of a completed family language instrument developed by the SPI from a parent or guardian of each child enrolled in a preschool program no later than upon enrollment. Requires, at a minimum, that the family language instrument be able to identify which languages the child is exposed to in the child’s home and community environment, which languages the child understands, and which languages the child is able to speak.
21. Criteria for state preschool contractors to use to accurately identify dual language learners enrolled in their preschool programs based on the information collected from the family language instrument and criteria for the family language and interest interview. (EC § 8241.5)
22. Defines TK to mean the first year of a two-year kindergarten program

that uses a modified kindergarten curriculum that is age and developmentally appropriate. (EC § 48000)

1. Requires that, starting with the 2025-26 school year, a child who will have their fourth birthday by September 1 be admitted to a TK program. (EC § 48000)

This bill:

1. Exempts, as an urgency measure, students in TK from being assessed for English language development using the ELPAC.
2. Exempts students in TK from being assessed for initial identification as an English learner upon initial enrollment.
3. States a number of findings and declarations related to the identification and assessment of English learners and to ensuring assessments are developmentally appropriate for students in TK.
4. Includes an urgency clause in order to implement changes before the 2024-25 school year.

Comments

1. Need for the bill. According to the author, “High quality early education is a critical investment in the future of our students and our state. California’s decision to fund universal pre-kindergarten was a monumental achievement, which will improve the lives of our children for generations to come. One unintended consequence of this laudable policy is that our youngest students are being assessed and classified as English learners using an assessment, which was not designed for them. This assessment, the ELPAC, is an important instrument, but it is not developmentally appropriate, and has not been proven valid and reliable for use with all four-year-olds, as required by state and federal law.

“For some time, educators around the state have expressed frustration with this requirement, reporting that the assessment does not yield useful information about children’s language proficiency, and that it causes some children considerable distress. Research suggests that this practice is leading to an over-identification of our 4-year-olds as English learners. This trend may accelerate as younger 4-year-olds enroll in TK.

“AB 2268 is intended to help the state course-correct and ensure that our children are not inappropriately assessed, so they can receive instruction and support based upon their true learning needs.”

1. ELPAC. Federal law requires that states assess students for English language proficiency starting in kindergarten, which typically means children who are five years old. The ELPAC is California’s statewide test for English language proficiency, designed for students in kindergarten through grade 12. The initial ELPAC is given to students who are enrolling in California schools for the first time and whose primary language is not English, as reported by their parents on the home language survey. Students are classified as English learners based on their initial ELPAC results. The summative ELPAC is administered each year thereafter to assess English learners’ progress in developing their English language skills in listening, speaking, reading, and writing. The summative assessment is also used to determine whether an English learner is ready for reclassification as proficient in English. According to information provided by the author’s office in other states, the federal assessment requirement results in students being assesses in kindergarten, at five years old. But because California law defines TK to mean the first year of a two-year kindergarten program, the current interpretation of the requirement is to assess students for English language proficiency starting in TK. This bill seeks to exempt students from having to take the ELPAC in TK at an earlier stage than originally intended. The assessment of eligible student would occur upon their entry into kindergarten.
2. TK expansion. As mentioned, current state law defines TK as the first year of a two-year kindergarten program. The enrollment of younger four-year-olds eligible to attend TK will expand to include all four-year-olds during the 2025-26 school year. The expansion phases in two months of eligible birthdates each year commencing with the 2022-23 school year and ending in the 2025-26 school. TK expansion of younger four-year-olds in K-12 education, along with current statutory requirements to assess and classify English learners using the ELPAC as early as kindergarten and, by extension, including TK, has raised concerns about whether the assessment is developmentally appropriate for four-year-olds. Students at this age are considered dual language learners. This bill includes an urgency clause that would enable the ELPAC exemption to take effect before the next phase of TK expansion.
3. Impact on TK students. Using an assessment that is not suitable for the developmental stage of four-year-olds may result in their misidentification as English learners or English proficient. The PPIC, in their report, Assessing Transitional Kindergarten’s Impact on Elementary School Trajectories (2023), analyzed the English learner identification patterns among 90,000 TK students enrolled in five large districts from 2014-15 through 2020-21, and found “stark differences in the timing of English learner identification and reclassification due to TK.” The report’s key findings that are relevant to the provisions in this bill include the following:
   1. Some students are identified in TK who would never have been identified had they started elementary school in kindergarten.
   2. Nearly 40 percent of students who enrolled in TK were classified as English learners in TK and kindergarten, compared to under 30 percent of kindergarteners who did not enroll in TK.
   3. When the effect of TK on English learner status is broken down by grade, TK assessment leads to an increased likelihood of being classified as an English learner in kindergarten.
   4. Overall, TK students are classified as English learners for about 40 percent of an academic year longer than their non-TK counterparts.
   5. Students who enroll in TK are both identified earlier and are more likely to ever be English learners with a higher likelihood of being English learners in kindergarten for students who enroll in TK versus those who do not.
   6. TK students identified as English learners also reclassify earlier. According to the report, this is likely due to misidentification as a result of being in TK, and some of the students identified in TK would have never been identified had they started elementary school in kindergarten.
4. How would TK students’ language needs be met without English learner classification? According to the Assembly Education Committee analysis, “ELD support is provided to TK students in several ways. Parents share information about their home languages through the required administration of the home language survey that identifies when they are exposed to or speak a home language other than English. Teachers are required to support the academic development of their students in alignment with state standards and curricula, which includes supporting their English language development needs. The state is currently revising the Preschool/Transitional Kindergarten Learning Foundations, which will have a strong focus on supporting English and home language development of children in TK settings. Finally, TK teachers and other classroom staff build relationships with their students and families that are often more instructive about their students’ needs than a standardized assessment.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 5/29/24)

California Association for Bilingual Education (co-source)

Californians Together (co-source)

Early Edge California (co-source)

Asian Americans Advancing Justice Southern California

Association of California School Administrators

Association of Two-Way Dual Language Education

California Association of School Business Officials

California Democratic Party

California Federation of Teachers

California Strategies & Advocacy, LLC

California Teachers Association

Kern County Superintendent of Schools Office

Kidango

Los Angeles County Office of Education

Office of the Riverside County Superintendent of Schools

Riverside County Public K-12 School District Superintendents

Small School Districts Association

Sobrato Early Academic Language

The Children's Partnership

The Education Trust - West

Unite-LA

OPPOSITION: (Verified 5/29/24)

None received

ASSEMBLY FLOOR: 73-0, 4/11/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Bauer-Kahan, Megan Dahle, Gallagher, Grayson, Mathis, Rendon, Villapudua

Prepared by: Olgalilia Ramirez / ED. / (916) 651-4105

5/30/24 12:34:29

**** END ****

SENATE COMMITTEE ON EDUCATION

Senator Josh Newman, Chair

2023 - 2024 Regular

Bill No: AB 2268 Hearing Date: May 29, 2024

Subject: English learners: initial identification: English language proficiency assessment.

SUMMARY

This bill, an urgency measure, exempts students in transitional kindergarten (TK) from being assessed for English language development using the English Language Proficiency Assessments for California (ELPAC). It further excludes students in TK from being assessed for initial identification as an English learner upon their initial enrollment.

BACKGROUND

Existing law:

State law

1. Requires each school district, and to the extent required by federal law each county office of education (COE) and each charter school, to assess the English language development of each student in order to determine the level of proficiency. (Education Code (EC) § 313)
2. Requires the assessment to be conducted upon initial enrollment, and annually, thereafter, during a period of time determined by the Superintendent of Public Instruction (SPI) and the State Board of Education (SBE), and until the student is redesignated as English proficient. (EC § 313)
3. Requires the assessment to primarily utilize the English language development test identified or developed by the SPI. (EC § 313)
4. Requires, subject to the approval of the U.S. Department of Education (USDOE) that the assessment for initial identification be conducted upon the initial enrollment of a student in order to provide information to be used to determine if the student is an English learner. (EC § 313)
5. Requires that these assessments be conducted in a manner consistent with federal statutes and regulations. (EC § 313)
6. Requires the SPI to review existing assessments that assess the English language development of students whose primary language is a language other than English, and requires that the assessment for initial identification and the summative assessment include, but not be limited to, an assessment of achievement of these students in English reading, speaking, and written skills. Requires the SPI to explore the option of a collaborative effort with other states to develop an assessment or series of assessments and share assessment development costs. (EC § 60810)
7. Requires that students in kindergarten and grade 1 be assessed in English listening and speaking, and, once an assessment is developed, early literacy skills. (EC § 60810)
8. Requires that, in the development and administration of the assessment for students in kindergarten and grade 1, the California Department of Education (CDE) minimize any additional assessment time, to the extent possible. To the extent that it is technically possible, items that are used to assess listening and speaking shall be used to measure early literacy skills. (EC § 60810)
9. Requires the CDE to ensure that the assessment and procedures for its administration are age and developmentally appropriate. States that age and developmentally appropriate procedures for administration may include, but are not limited to, one-on-one administration, a small group setting, and orally responding or circling a response to a question. (EC § 60810)
10. Requires that the initial and summative assessments, among other requirements:
11. Have psychometric properties of reliability and validity deemed adequate by technical experts.
12. Be aligned with the standards for English language development adopted by the SBE.
13. Be age and developmentally appropriate for students. (EC § 60810)
14. Defines long term English learner (LTEL) to mean a student who:
15. Is enrolled in any of grades 6 to 12, inclusive.
16. Has been enrolled in schools in the United States for six years or more.
17. Has remained at the same English language proficiency level for two or more consecutive prior years, or has regressed to a lower English language proficiency level, as determined by the English language development test identified or developed pursuant to Section 60810, or a score determined by the Superintendent on any successor test.
18. For a student in any of grades 6 to 9, inclusive, has scored far below basic or below basic on the prior year’s English language arts standards-based achievement test. (EC § 313.1)
19. Requires the SPI to develop procedures for California State Preschool Program (CSPP) contractors to identify and report data on dual language learners enrolled in a CSPP, and requires those procedures to include, at a minimum:
20. The distribution and collection of a completed family language instrument developed by the SPI from a parent or guardian of each child enrolled in a preschool program no later than upon enrollment. Requires, at a minimum, that the family language instrument be able to identify which languages the child is exposed to in the child’s home and community environment, which languages the child understands, and which languages the child is able to speak.
21. Criteria for state preschool contractors to use to accurately identify dual language learners enrolled in their preschool programs based on the information collected from the family language instrument and criteria for the family language and interest interview. (EC § 8241.5)

Federal law

1. Defines “English learner” to mean an individual who:
2. Is age 3 through 21.
3. Is enrolled or preparing to enroll in an elementary school or secondary school.
4. Was not born in the United States or whose native language is a language other than English;
5. Is a Native American or Alaska Native, or a native resident of the outlying areas; and
6. Comes from an environment where a language other than English has had a significant impact on the individual’s level of English language proficiency; or
7. Is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
8. Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual:
9. The ability to meet the challenging state academic standards;
10. The ability to successfully achieve in classrooms where the language of instruction is English; or
11. The opportunity to participate fully in society. (Title 20, USC 7801)
12. Requires that each state plan demonstrate that local educational agencies (LEAs) in the state will provide for an annual assessment of English proficiency of all English learners; and requires that the assessments be aligned with the state’s English language proficiency standards. (Title 20, USC § 6311(b)(2)(G))
13. Requires that each state plan contain assurances that the state has appropriate procedures and safeguards in place to ensure the validity of the assessment process. (Title 20, USC § 6311 b2g2I)
14. Requires each LEA to use such assessment to assess annually the English language proficiency, including reading, writing, speaking, and listening skills, of all English learners in kindergarten through grade 12 in schools served by the LEA. Requires that the assessment:
15. Be aligned with the state's English language proficiency standards;
16. Be developed and used consistent with the requirements that the assessment be valid and accessible for use by all students, including those with disabilities and English learners; and
17. Provide coherent and timely information about each student's attainment of the state's English language proficiency standards to parents. (Title 34, USC § 200.6)
18. Requires state plans to demonstrate that the state has adopted English language proficiency standards that:
19. Are derived from the 4 recognized domains of speaking, listening, reading, and writing;
20. Address the different proficiency levels of English learners; and
21. Are aligned with the challenging state academic standards. (Title 20 USC § 6311 b(1)(F))
22. Requires that state plans describe how the state will establish and implement, with timely and meaningful consultation with LEAs representing the geographic diversity of the state, standardized, statewide entrance and exit procedures, including an assurance that all students who may be English learners are assessed for such status within 30 days of enrollment in a school in the state. (Title 20 USC § 6823)
23. Defines TK to mean the first year of a two-year kindergarten program that uses a modified kindergarten curriculum that is age and developmentally appropriate. (EC § 48000)
24. Requires that, starting with the 2025-26 school year, a child who will have their fourth birthday by September 1 be admitted to a TK program. (EC § 48000)

ANALYSIS

This bill:

1. An urgency measure, exempts students in TK from being assessed for English language development using the ELPAC.
2. Exempts students in TK from being assessed for initial identification as an English learner upon initial enrollment.
3. States a number of findings and declarations related to the identification and assessment of English learners and to ensuring assessments are developmentally appropriate for students in transitional kindergarten.
4. Includes an urgency clause in order to implement changes before the 2024-25 school year.

STAFF COMMENTS

1. Need for the bill. According to the author, “High quality early education is a critical investment in the future of our students and our state. California’s decision to fund universal pre-kindergarten was a monumental achievement, which will improve the lives of our children for generations to come.

One unintended consequence of this laudable policy is that our youngest students are being assessed and classified as English learners using an assessment, which was not designed for them. This assessment, the ELPAC, is an important instrument, but it is not developmentally appropriate, and has not been proven valid and reliable for use with all four-year-olds, as required by state and federal law.

‘For some time, educators around the state have expressed frustration with this requirement, reporting that the assessment does not yield useful information about children’s language proficiency, and that it causes some children considerable distress. Research suggests that this practice is leading to an over-identification of our 4-year-olds as English learners. This trend may accelerate as younger 4-year-olds enroll in TK.

‘AB 2268 is intended to help the state course-correct and ensure that our children are not inappropriately assessed, so they can receive instruction and support based upon their true learning needs.”

1. ELPAC. Federal law requires that states assess students for English language proficiency starting in kindergarten, which typically means children who are five years old. The ELPAC is California’s statewide test for English language proficiency, designed for students in kindergarten through grade twelve. The initial ELPAC is given to students who are enrolling in California schools for the first time and whose primary language is not English, as reported by their parents on the home language survey. Students are classified as English learners based on their initial ELPAC results. The summative ELPAC is administered each year thereafter to assess English learners’ progress in developing their English language skills in listening, speaking, reading, and writing. The summative assessment is also used to determine whether an English learner is ready for reclassification as proficient in English. According to information provided by the author’s office in other states, the federal assessment requirement results in students being assesses in kindergarten, at five years old. But because California law defines TK to mean the first year of a two-year kindergarten program, the current interpretation of the requirement is to assess students for English language proficiency starting in TK. This bill seeks to exempt students from having to take the ELPAC in TK at an earlier stage than originally intended. The assessment of eligible student would occur upon their entry into kindergarten.
2. TK expansion. As mentioned, current state law defines TK as the first year of a two-year kindergarten program. The enrollment of younger four-year-olds eligible to attend TK will expand to include all four-year-olds during the 2025-26 school year. The expansion phases in two months of eligible birthdates each year commencing with the 2022-23 school year and ending in the 2025-26 school. TK expansion of younger four-year-olds in K-12 education, along with current statutory requirements to assess and classify English learners using the ELPAC as early as kindergarten and, by extension, including TK, has raised concerns about whether the assessment is developmentally appropriate for four-year-olds. Students at this age are considered dual language learners. This bill includes an urgency clause that would enable the ELPAC exemption to take effect before the next phase of TK expansion.
3. Impact on TK students. Using an assessment that is not suitable for the developmental stage of four-year-olds may result in their misidentification as English learners or English proficient. The PPIC, in their report, Assessing Transitional Kindergarten’s Impact on Elementary School Trajectories (2023), analyzed the English learner identification patterns among 90,000 TK students enrolled in five large districts from 2014-15 through 2020-21, and found “stark differences in the timing of English learner identification and reclassification due to TK.” The report’s key findings that are relevant to the provisions in this bill include the following:
   1. Some students are identified in TK who would never have been identified had they started elementary school in kindergarten.
   2. Nearly 40 percent of students who enrolled in TK were classified as English learners in TK and kindergarten, compared to under 30 percent of kindergarteners who did not enroll in TK.
   3. When the effect of TK on English learner status is broken down by grade, TK assessment leads to an increased likelihood of being classified as an English learner in kindergarten.
   4. Overall, TK students are classified as English learners for about 40 percent of an academic year longer than their non-TK counterparts.
   5. Students who enroll in TK are both identified earlier and are more likely to ever be English learners with a higher likelihood of being English learners in kindergarten for students who enroll in TK versus those who do not.
   6. TK students identified as English learners also reclassify earlier. According to the report, this is likely due to misidentification as a result of being in TK, and some of the students identified in TK would have never been identified had they started elementary school in kindergarten.
4. How would TK students’ language needs be met without English learner classification? According to the Assembly Education Committee analysis, “ELD support is provided to TK students in several ways. Parents share information about their home languages through the required administration of the home language survey that identifies when they are exposed to or speak a home language other than English. Teachers are required to support the academic development of their students in alignment with state standards and curricula, which includes supporting their English language development needs. The state is currently revising the Preschool/Transitional Kindergarten Learning Foundations, which will have a strong focus on supporting English and home language development of children in TK settings. Finally, TK teachers and other classroom staff build relationships with their students and families that are often more instructive about their students’ needs than a standardized assessment.”

SUPPORT

California Association for Bilingual Education (Co-Sponsor)

Californians Together (Co-Sponsor)

Early Edge California (Co-Sponsor)

Asian Americans Advancing Justice Southern California

Association of California School Administrators

Association of Two-way Dual Language Education

California Association of School Business Officials

California Democratic Party

California Federation of Teachers

California Teachers Association

Kern County Superintendent of Schools Office

Kidango

Los Angeles County Office of Education

Office of the Riverside County Superintendent of Schools

Riverside County Public K-12 School District Superintendents

Small School Districts Association

Sobrato Early Academic Language

The Children's Partnership

The Education Trust - West

Unite-LA

OPPOSITION

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2268

Author:(Muratsuchi)

As Introduced Ver:February 8, 2024

Majority vote

SUMMARY

Exempts students in transitional kindergarten (TK) from the being assessed for English language development (ELD) using the English Language Proficiency Assessments for California (ELPAC).

Major Provisions

1. States that, for purposes of the requirement to assess students in kindergarten and first grade in English proficiency, kindergarten does not include TK.

COMMENTS

Public Policy Institute of California (PPIC) analysis finds that even the oldest TK students are being misidentified as English learners (EL). The PPIC, in the report, Assessing Transitional Kindergarten's Impact on Elementary School Trajectories (2023), analyzed the EL identification patterns among 90,000 TK students enrolled in five large districts from 2014-15 through 2020-21. During the years covered in the PPIC analysis, only the oldest four-year-olds were eligible to enroll in TK.

The PPIC found "stark differences in the timing of EL identification and reclassification due to TK." The analysis found that, even among the oldest four-year-olds, nearly 40% of students who enrolled in TK were classified as ELs in TK and kindergarten, compared to under 30% of kindergarteners who did not enroll in TK. The PPIC concluded, "Some students are identified in TK who would never have been identified had they started elementary school in kindergarten."

Federal and state law requires that LEAs administer an ELP assessment that is valid and reliable for the students being assessed. Federal regulations and state law require that students be assessed for ELP using an assessment which is valid and reliable.

According to the CDE, the ELPAC was field tested in March and April 2017 with almost 47,000 students in over 400 LEAs. Field testing included TK students for both the initial and summative field tests, but at that time only the oldest four-year-olds were eligible to attend TK. As a result, the assessment was not validated for use with younger four-year-olds. These younger children are increasingly becoming eligible to attend TK, with universal access planned for the 2025-26 school year.

Consequences of misidentification as an EL. Research establishes that being appropriately identified as an EL helps students succeed academically. It also establishes that for students with higher ELP, being identified as an EL can damage students' educational prospects in multiple ways, including:

• Lower achievement. Research has found that among language-minority students who enter kindergarten with relatively advanced English proficiency, EL classification or placement in ESL courses results in a substantial negative net impact on math and English language arts test scores in grades 2 through 10 (Umansky, 2016), lower achievement in secondary math (Callahan, 2009), and lower probabilities of on-time graduation and college attendance. (Johnson, 2019)
• Lower expectations among both teachers and students. Research has found that, except in bilingual classrooms, EL classification results in lower teacher perceptions (Umansky, 2021). Multiple studies indicate that EL students can interpret their enrollment in courses outside of the mainstream to mean that they are not capable of learning, that they lack intelligence, and that they are inferior to other students. (Thompson, 2017; Dabach, 2014; Estrada, 2017; Dabach 2010)
• Restricted opportunity. Current law requires that ELs receive instruction in ELD to support their progress in achieving proficiency in English. A student who is misidentified as an EL is required to receive this instruction, which may restrict their opportunity to receive other needed, or desired, instruction. Research confirms that EL status can lead to exclusionary tracking and can "crowd out" other opportunities for ELs in secondary grades. (Umansky, 2016)

According to the Author

"High quality early education is a critical investment in the future of our students and our state. California's decision to fund universal pre-kindergarten was a monumental achievement which will improve the lives of our children for generations to come.

One unintended consequence of this laudable policy is that our youngest students are being assessed and classified as English learners using an assessment which was not designed for them. This assessment, the ELPAC, is an important instrument, but it is not developmentally appropriate, and has not been proven valid and reliable for use with all four-year-olds, as required by state and federal law.

For some time, educators around the state have expressed frustration with this requirement, reporting that the assessment does not yield useful information about children's language proficiency, and that it causes some children considerable distress. Research suggests that this practice is leading to an over-identification of our 4-year-olds as English learners. This trend may accelerate as younger 4-year-olds enroll in TK.

AB 2268 is intended to help the state course-correct and ensure that our children are not inappropriately assessed, so they can receive instruction and support based upon their true learning needs"

Arguments in Support

Early Edge California writes, "As the state moves towards universal TK by the 2025-26 school year, it becomes imperative for California to reassess the appropriateness of administering the ELPAC to this age group. When the ELPAC was developed and field tested, it was not developed nor tested with the younger TK population enrolled in California public schools. Therefore, administering it to current TK students could lead to potential misidentification of English learners, negatively impacting their educational experience. Moreover, it may necessitate local educational agencies to provide services and supports that are inappropriate and unnecessary for these students.

AB 2268 would protect the state's youngest emerging bilingual students by ensuring they are not administered a developmentally inappropriate assessment, which could harm their academic and life trajectories."

Arguments in Opposition

None on file.

FISCAL COMMENTS

This bill has been keyed non-fiscal by the Office of Legislative Counsel.

VOTES

ASM EDUCATION: 7-0-0

YES: Muratsuchi, Addis, Alvarez, Bonta, Flora, Hoover, McCarty

UPDATED

VERSION: February 8, 2024

CONSULTANT: Tanya Lieberman / ED. / (916) 319-2087 FN: 0002697