ELL SETTLEMENT
 

http://www.sbcss.k12.ca.us/sbcss/candiadmin/cde/sf_41701.htm
 

Date:           April 3, 2001
To:             County Offices of Education and School District Offices of Education:
Subject:        NOTICE OF CLASS ACTION SETTLEMENT
From:           DELAINE EASTIN, State Superintendent of Public Instruction
 

In 1998, the California Department of Education brought a lawsuit
against the San Francisco Unified School District (SFUSD) to enforce the
administration of the STAR Program tests as required by law. In
response, SFUSD, along with three other school districts and a class of
students represented by the Mexican American Legal Defense Fund
("MALDEF"), filed a legal challenge to the state's annual administration
of STAR Program tests in English to English Language Learners ("ELLs")
with less than 30 months of California public school education. The case
entitled California Department of Education et al. V. San Francisco
Unified School District et al., Case No. 994049, San Francisco Superior
Court, has recently settled.
As part of the settlement, the parties agreed that all ELLs in grades 2
through 11 will continue to take the STAR Program tests in English as
required by statute, subject only to applicable IEPs and other statutory
exemptions. In addition, it was agreed that appropriate notice and
opportunity to opt out would be provided to the settlement class through
the school districts, as well as by publication in the newspapers.
Notice is important to protect ELL students' due process rights. 
Attached is a copy of the Court-approved Notice to school districts.
PLEASE FORWARD THIS NOTICE TO ALL ELEMENTARY, MIDDLE, AND HIGH SCHOOLS
IN YOUR DISTRICT FOR POSTING IN A PROMINENT PLACE. In addition, the
California Department of Education strongly encourages you to arrange
for the classroom distribution of the attached notice to each ELL
student enrolled in your district. The Department is forwarding a copy
of the Notice in English, Spanish, Tagalog, Chinese, and Vietnamese for
your convenience. 
Please contact Edmundo Aguilar, Deputy General Counsel, California
Department of Education, (916) 6578-2453, if you have any further
questions. 
 

*******************
 

NOTICE OF CLASS ACTION SETTLEMENT TO ALL ENGLISH LANGUAGE LEARNERS AND
LIMITED ENGLISH PROFICIENT STUDENTS ENROLLED IN CALIFORNIA PUBLIC
SCHOOLS FOR LESS THAN 30 MONTHS AND THEIRPARENTS
 

The lawsuit entitled California Department of Education et al. v. San
Francisco Unified School District et al. has recently settled. As part
of this lawsuit, THE San Francisco, Berkeley, Oakland and Hayward
Unified School Districts and a parent represented by the Mexican
American Legal Defense and Educational Fund ("MALDEF") challenged the
State's administration of STAR Program tests in English to English
Language Learners ("ELLs", also known as "limited English proficient" or
"LEP" students) with less than 30 months of California public school instruction.
As part of the settlement, the parties agreed to dismiss their claims
challenging the administration of the STAR Program tests in English to
English language learners with less than 30 months of California public
school instruction. The districts did not file any class-wide claims. 
Under the settlement, all parties agreed to dismiss their claims
challenging the administration of the STAR Program tests in English,
subject only to a request in writing by an individual parent or guardian
to excuse his or her child from the test*, as described below, and
certain other exemptions available to Special Education students. The
settlement agreement does not change which children currently are tested
in any school district in California other than the San Francisco
Unified School District. 
The settlement agreement also, among other things, provides for
guidelines on the appropriate use of STAR test results for both English
language learners and non-English language learners. In addition, the
State Board of Education agreed to amend its regulations to clarify that
school districts may discuss the STAR Program with parents and inform
them of their right to exempt their children*. 
Although this notice contains a general description of the settlement
agreement, it is not a complete or detailed statement of its terms. The
full terms of the settlement agreement, which you have the right to
review, are on file with the Clerk of the San Francisco Superior Court,
400 McAllister St., San Francisco, CA 94102. You may also contact
MALDEF, counsel for the settlement class, at (213) 629-2512 with any
questions regarding the settlement. The Court Clerk cannot answer any
questions about this lawsuit. 
If you are an English language learner with less than 30 months of
instruction in California's public schools, you will be included in the
settlement and governed by its provisions unless you choose to "opt out"
or be excluded from the settlement class. 
If you do opt out, you may be able to renew the legal challenge raised
in this lawsuit based on your status as an English language learner with
less than 30 months of instruction in California public schools. If you
do not opt out, you will lose the ability to bring your own lawsuit
raising the same claims as those settled here. 
To opt out from the settlement class, you (or your parent, if you are
under the age of 18) must send a letter to the Clerk of the San
Francisco Superior Court, 400 McAllister St., San Francisco, CA 94102,
Case No. 994049 (California Department of Education et al. V. San
Francisco Unified School District et al.) stating that you do not wish
to be included in the class of English language learners represented in
this lawsuit. You must send this letter before May 15, 2001.
Any decision about whether or not to opt out of this settlement will not
affect a parent's right to exempt his or her child from the STAR Program
tests. Under California law, all parents have the right to excuse their
child from taking any of the STAR Program tests by sending a written
request to their child's school*. 
 

*Distributed by CalCARE (California Coalition for Authentic Reform in
Education); our emphasis in bold face. We can be reached at
www.calcare.org and 510-496-6028.
 

NEXT, A MEMO FROM THE LAWYER WHO DID THE ELL CASE:
 

LEGAL ALERT:
 

SETTLEMENT REACHED IN STAR LITIGATION 
 

        The Berkeley, Oakland, Hayward and San Francisco school districts
recently achieved statewide relief in their lawsuit against the State
over administration of the SAT-9 test to English language learners.  In
particular, they obtained significant concessions on their claims that:
1) a virtual ban on advising ELL families on the SAT-9 violated the free
speech rights of school district staff; and 2) judging school
performance solely on the basis of SAT-9 scores was unfair.   
         Major provisions that will affect your school district:
 

        1.  A school district and its employees now may initiate discussions
with parents/guardians on advantages and disadvantages of the SAT-9,
provide individualized advice on the appropriateness of the SAT-9 for a
particular student, and inform them of the availability of parental
waivers.  The only limit on staff is that they may not "solicit" or
"encourage" parental waivers;
 

        2.  English language learners enrolled in California public schools in
grades 2-11 must take the SAT-9, subject to applicable IEPs and
statutory exemptions such as parental waivers;
 

        3.  If a school fails to meet API growth targets solely due to the low
API scores of its English language learners, the district may submit a
general waiver to the State Board of Education.  If the school
demonstrates improvement in ELL performance on the English Language
Development test, the Board may grant the waiver.  Board policy will
express a presumption in favor of granting such waivers;
 

        4.  Students taking the test under standard and non-standard
accommodations will constitute "participation" for the purpose of
eligibility in the Governors Performance Award Program and other award
programs based on the API;
 

        5.  The State Superintendents guidelines for test use must advise that
SAT-9 scores may reflect both a students English language ability and
academic knowledge and admonish educators not to rely solely on these
scores in making education decisions; and 
 

        6.  The State Superintendent of Instruction must produce an annual
report on the primary language academic achievement tests administered
under the STAR program.  
 

        Ruiz & Sperow, LLP (counsel to Berkeley, Oakland and Hayward in this
litigation) is available to advise you and your staff on implementation
of the settlement in your district  in particular your rights to
communicate with parents regarding the SAT-9 and parental waivers.  
Contact: Laura Schulkind, Ruiz & Sperow, LLP, Watergate Tower III, 2000
Powell Street, Suite 1655, Emeryville, CA 94608, (510) 594-7980, (510)
594-7988 fax, <lschulkind@ruizlaw.com>, http://www.ruizlaw.com.
 

FINALLY, THE ORIGINAL LAW, WHICH HAS BEEN CHANGED AS A RESULT OF THE ELL
CASE, AS PER ABOVE:
 
 

The reference is Title 5 of the CA
Code of Regulations, Division 1, Chapter 2, Subchapter 3.75
"Standardized Testing and Reporting Program", Section 852, (a).
Its under "more about STAR" on the SED website.
 
(a) A parent or guardian may submit to the school a written request to
excuse his or her child from any or all parts of any test provided
pursuant to Education Code section 60640. A school district and its
employees may discuss the Standardized Testing and Reporting program
with parents and may inform parents of the availability of exemptions
under Education Code section 60615. However, the school district and its
employees shall not solicit or encourage any written exemption request
on behalf of any child or group of children.
 
The law is this:
California Education Code Section 60615.  "Notwithstanding any
provision of law, a parent's or guardian's written request to school
officials to excuse his or her child from any or all parts of the
assessments administered pursuant to this chapter shall be granted.">