School district primes for legal battle
The Desert Sun
March 5, 2005

Christine Mahr

With a local school district and the state locked in a dispute and headed for the courts over testing of English language learners, educators and parents will be watching to see the impact on the valley and beyond.

The Coachella Valley Unified School District voted this week to retain three law firms to prepare the suit, which is expected to be filed next month.

A lawyer from one of the firms said the civil action could become a trail-blazing legal case.

And the president of the seven-member Coachella Valley district board, Anna Rodriguez, said, "It won't benefit only our children but children in general as well."

The district contends California's testing system places its students at a disadvantage because the standardized tests administered to all students in grades 2-11 are given in English, even though 82 percent of the district's 15,000 students lack proficiency in the language.

The district has been labeled a failing district because too few of its schools and students measured up to progress goals required by the federal No Child Left Behind Act.

Some say it's unfair to give students - at least some of whom are likely to be among the valley's future leaders - standardized tests in English before they've learned the language.

Lourdes Carrillo, 46, of Coachella understands the difficulty English learners experience in school because she was one herself when she came to this country at age 11.

Her parents were migrant farm workers who followed the crops, much like some families in the Coachella Valley district.

"You don't stay long enough in a place to learn the language," Carrillo said.

She believes it's unfair to give children tests in English before they're proficient.

"They're only guessing (answers) - that's why they score so low," Carrillo said.

La Quinta High School teacher Alejandra Rivera said, "It's just common sense they should have something comparable in their own language. If they don't know the terminology, they're lost."

Although the lawsuit is still being researched, district officials and attorneys said one of the things it will ask for is to allow English language learners to become proficient before having to be tested in English.

"This may likely be landmark litigation if we prevail," said Virginia Keeny, an attorney with the Pasadena-based law firm of Hadsell & Stormer.

The high-powered firms representing the district bring to the table considerable legal experience and headline-making cases, including some involving disadvantaged groups.

One of the firms, Burke, Williams & Sorensen, which has offices in several California cities, was founded in 1927 and is organized into specialty practice groups, one of which is education law. Two of the firm's founding partners, Louis H. Burke and Thomas P. White, went on to serve as California Supreme Court justices.

Founded in 1991 by two experienced California civil-rights lawyers, Keeny's firm specializes in civil rights, employment discrimination, human rights and constitutional law cases.

Those firms and Long Beach attorney Marc Coleman agreed to represent the district because of the position the district has found itself in with English language learners.

"We see the testing problem as significant in its impact on children and families," Keeny said.

Keeny said other districts are in a similar situation and have expressed interest in the suit.

She did not want to name them until they've decided to join the litigation or to discuss details of the suit until it's been filed.

The district contends the state's testing process violates the No Child Left Behind Act, which specifies how testing of students with limited English proficiency should be handled.

The federal law requires that states provide English language learners with "reasonable accommodations" such as native-language versions of tests and allow students to be in U.S. schools for three years before being tested in English in the areas of reading and language arts.

"Then, beyond that, on a case-by-case basis, students can be given a test in their native language for another two years," said Kathleen Leos, U.S. Department of Education senior policy adviser for No Child Left Behind.

Reacting to Coachella Valley Unified's potential lawsuit, Leos said it's a conflict for the district and the state to resolve.

State officials defended their policy, saying it's state law, but said very beginning-level English learners get a one-year grace period before their test scores are counted as a measure of academic growth under No Child Left Behind.

"The expectation is that after a year they'd know some English," said Rick Miller, director of communications for the state Department of Education. "We want them to learn English."

District Superintendent Foch "Tut" Pensis disagreed.

"That's almost laughable," he said. "How can you possibly learn a language at an academic level in a year? It's just not enough time."

Melissa Zarate of Indio thinks it's OK to test students in English even if they're not proficient in it.

"You need to try to push them - to me that seems better," she said.

Deborah Sigman, director of standards and assessment for the education department, said it's important for districts to find teaching strategies and other ways to intervene and help students become proficient in English as quickly as possible.

"The more quickly they become proficient, the better they'll do," she said.

The district's continued lack of adequate academic progress by schools and students leads to sanctions required by No Child Left Behind.

The district already is on a Program Improvement list, meaning it must take certain steps such as creating an improvement plan and using some of its federal funding - money to help educate low-income students - to train teachers.

Sanctions later can be as severe as replacing the superintendent and school board with a state-appointed trustee if progress isn't made.

"But that's a last resort that neither the state nor locals would like," Miller said.

Neighboring Desert Sands and Palm Springs districts said they don't intend to join in the lawsuit.

Although they have English language learners, the percentages are smaller than in Coachella Valley Unified - more than 30 percent in Desert Sands and 37 percent in Palm Springs.

Officials in both districts said they're focusing their efforts on providing strong instruction in English language development for English learners.

"No matter what the outcome (of the suit) is, our goal is to make sure each student experiences good teaching," said Lorraine Becker, assistant superintendent of educational services in Palm Springs Unified.

But officials also understand why Coachella Valley Unified, with its high percentage of English language learners, has decided on legal action.

"It's a lot to expect students who are just learning a language to be tested in that language when they can't even read, speak or understand it fluently," said Joelle DeLandtsheer, director of state and federal projects, testing and evaluation in the Desert Sands district.

Educators, students and parents in the Coachella Valley Unified School District tell why in their opinion California laws requiring English language learners to be tested in English before they're proficient in the language is unfair:

Parent Robert Gaines of Coachella: "So many kids don't speak English. They should be tested in Spanish for two or three years. Why test them in a language they don't understand?"

Parent Sandra Paiz of Coachella: "If they don't know English, they won't know how to answer questions, and they'll fail."

School board member Gloria Maldonado: "It's important to maintain self-esteem in English language learners. It's easy for them to get discouraged, and (testing in English) sets them up for failure."

Superintendent Foch "Tut" Pensis: "We're not talking about a conversational level of language - we're talking about an academic level. One year is not nearly enough to learn a language at an academic level."

Eight-year-old Oasis School student Yesenia Ayon: "There are some words I know, but a lot more that I don't. It's hard."

Under the federal No Child Left Behind Act, states must provide "reasonable accommodations" such as native language versions of tests when testing students to determine academic progress. In the areas of reading and language arts, students who have been in U.S. schools for three years will be tested in English.


All students in grades 2-11 in California public schools must participate in the state's standardized testing program unless they have significant cognitive disabilities. The tests are administered in English