Florida and feds in a showdown over when to test students still learning English

Published Aug. 20, 2014

Federal education officials have decided Florida does not know best when it comes to school accountability and English-language learners.

State legislators, supported by educators and advocates, changed the law in the spring to reflect that students still learning English should not be expected to immediately excel on Florida's annual tests. They gave the students two years in a U.S. school before counting their scores in school grades.

"I'm one that is huge on raising the bar," said state Rep. Manny Diaz Jr., R-Hialeah, vice chairman of the House K-12 Subcommittee. "But there comes a certain point when the language is the barrier. Then we're not measuring what we should be measuring."

But the change contradicted federal rules that demand all children be counted equally in accountability measures. The U.S. Department of Education called Florida on the carpet for the legislation as it renewed the state's waiver from federal No Child Left Behind requirements.

"Current law requires assessing all students in tested grades and including their results in accountability determinations in order to ensure that teachers and parents of ELs (English learners) have information on students' progress and that schools are held accountable for the academic achievement of ELs," Assistant Secretary Deborah Delisle wrote to Florida Education Commissioner Pam Stewart on Thursday.

Florida Department of Education leaders agreed to the requirement when originally seeking an NCLB waiver, which then-Commissioner Gerard Robinson argued was critical so Florida could end the "duplication and confusion" of following two accountability systems. The waiver allowed Florida to use its own system for setting school grades and intervening at troubled schools, without worrying about whether a school had made "adequate yearly progress" as defined by the feds.

At the time, some groups criticized the requirement, saying it was unfair to English-language learners and schools, even though it was an effort to look after students' interests.

Several states have asked that the requirement be relaxed, but the U.S. Education Department has declined. In her letter to Stewart, Delisle said Florida risks having its waiver revoked if it does not comply with federal law.

About one in 10 Florida students, or just fewer than 260,000, were considered English-language learners in the 2013-14 academic year.

The Florida DOE convened groups of experts to compile possible steps that would satisfy federal rules while also taking into account the reality in the classroom.

"The federal government just needs to get right on this issue," said Rep. Joe Saunders, D-Orlando, who sits on three House education committees. "We need to give them more than one year before we put these students' academic lives in jeopardy."

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The two-year delay before English-language learners are tested seemed a fair compromise, based on Florida's needs, said Rep. Erik Fresen, R-Miami, House Education Appropriations chairman.

"One year is not always viable" for students to show progress, said Fresen, who co-sponsored the bipartisan legislation. "It's usually the exception, not the rule."

He said he expected the state to fight the federal ruling. He was not alone.

Senate Education committee chairman John Legg, R-Trinity, noted that Florida did get a one-year NCLB waiver extension, even with its new rules on English learner testing in place.

"We have a little bit of time to figure out what we have to do," Legg said. "But I agree with the bill we passed. … I have no intention of changing it back."

He and the others stood with the state Department of Education, which reaffirmed its commitment to having flexibility in how it assesses English-language learners. "We find their (federal) opinion not acceptable," Legg said. "There may be a showdown in a year."

So far, only Washington state has lost an NCLB waiver from the U.S. Education Department. As a result, the state fell back under the more restrictive federal requirements.

Contact Jeffrey S. Solochek at or (813) 909-4614. Follow @jeffsolochek.