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In what appears to be the first appellate decision addressing implementation of the No Child Left Behind Act, a Commonwealth Court panel has rejected the Reading School District’s appeal of the state Department of Education’s decision to label 13 district schools as not meeting yearly progress requirements under the act. Among other issues raised in Reading School District v. Department of Education, the school district argued that the state’s assessment system is discriminatory because it does not provide native language testing. The issue is one of first impression. Education lawyers involved in the case said other Pennsylvania districts that, like Reading, have high numbers of students not yet proficient in English could find themselves in a similar situation. “One thing the case illustrates is just how complicated the issues are that the No Child Left Behind Act tends to deal with – for instance, how much accountability there should be for districts that are very under-resourced,” said Education Law Center co-director Leonard Rieser, who filed an amicus brief in Reading School District. Of the Philadelphia School District’s roughly 189,000 students, 12,850 are designated as “English language learners,” according to spokesman Fernando Gallard. No one from the Philadelphia School District was available to comment specifically on the court’s decision, Gallard said. The three-judge panel in Reading School District deferred to the Department of Education’s discretion in administering the No Child Left Behind Act. “Although NCLB is not the department’s own regulation, it is a regulation within the secretary’s educational sphere and expertise. As such, the secretary has the experience and knowledge to make such decisions,” President Judge James Gardner Colins wrote in an opinion filed last week. Colins was joined by Judge Rochelle S. Friedman and Senior Judge Charles P. Mirarchi Jr. According to the opinion, the No Child Left Behind Act, which amended federal public school laws, was signed by President Bush in January 2002. In order to qualify for federal “Title I” funds that are apportioned by individual states, local school districts must meet a number of conditions, including adequate yearly progress (AYP). Under the act, AYP is to be determined by statewide testing. For the 2003-04 school year, a Pennsylvania elementary or secondary school can meet AYP only if at least 35 percent of its students are found to be proficient in math and 45 percent are found to be proficient in reading, according to the opinion. Those AYP rates apply both to the school as a whole as well as to each of four demographic subgroups identified by the act: economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, and students with limited English proficiency, according to the opinion. Under the act, if a school has above “N” number of students who belong to any of the designated subgroups, the school as a whole will not achieve AYP if that subgroup does not. Pennsylvania’s “N” number is 40. If a school fails to meet AYP for two years, according to the opinion, it is placed in the first phase of school improvement, under which it must be offered technical assistance and must offer its students the choice to attend other public schools. In January 2003, the Reading School District was told by the state that 13 of its 20 public schools did not meet AYP. Six of those were placed in the first phase of school improvement. In its appeal to the Commonwealth Court, the school district asserted that the state’s testing system is discriminatory because Pennsylvania does not provide native language testing, that the department’s “N” number is arbitrary, and that the department failed to provide the district with enough technical assistance for the purposes of school improvement. The judges concluded that the issue of the department’s current technical assistance is separate from its decision to initially identify the schools as in need of assistance. “While the district is one of the poorest school districts in Pennsylvania and the burden on it may be onerous,” Colins wrote, “the district is receiving some technical assistance from the department in the form of workshops, which the district’s personnel have attended and plan to attend in the future.” As for the language argument, the judges agreed with the department’s position that native language testing is not presently feasible. “Currently, the department is in the process of determining from the 125 native languages used in Pennsylvania schools those for which it would be feasible to offer the assessment. . . . The department plans to make some native language testing available by 2005,” Colins wrote. Addressing the district’s “N” number claim, the judges, noting that the district failed to offer its own statistical analysis, ruled that the department had dedicated sufficient research to ascertaining the number that would help identify schools in need of extra support. The district’s attorney, Richard Guida of Golden Masano Bradley in Wyomissing, said that the decision to appeal the panel’s ruling rests with Reading’s school board, which will vote on the issue later this month. He did say that he, the superintendent of the district and the president of the school board have all recommended appealing to the Supreme Court. Sixty-four percent of the school district’s students are Hispanic, while roughly 2,000 out of its approximately 16,000 students have limited English proficiency, according to Guida. The estimated cost of the state-ordered improvement plans are triple the amount of Title I funds currently at the district’s disposal, he said. Guida argued that making a school’s achievement of AYP contingent upon the performance of its NCLB subgroups leaves little room for that school to pass muster. “An 11th grader reading at a 2nd-grade level isn’t going to read better just because you give him a test,” Guida said. Rieser of the Education Law Center noted that the state has had since 1994 to develop native language testing, as federal laws calling for statewide public schools testing were enacted that year. “The No Child Left Behind Act sets some great goals,” Rieser said. “Where is the responsibility for providing the help that schools – especially some of our poorer schools – need to meet those goals?” In a press release, Acting Pennsylvania Secretary of Education Gerald Zahorchak said that the department “remain[s] prepared to continue working closely with [Reading school] district officials to assist in meeting the requirements of No Child Left Behind.” The Pennsylvania State Education Association and the Pennsylvania School Boards Association filed amicus briefs in support of the school district, Guida said. (Copies of the 14-page opinion in Reading School District v. Department of Education, PICS No. 04-1243, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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