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State efforts at carrying out requirements to test English-language learners under the No Child Left Behind Act are receiving increased scrutiny, as hundreds of schools across the country fail to meet goals for adequate yearly progress at least in part because of such students鈥� scores.

This month, 10 school districts in California charged in a suit that their state is not complying with the federal law鈥檚 mandate to test English-language learners 鈥渋n a valid and reliable manner,鈥� as the law says. The law elaborates that states must provide accommodations for such students and, 鈥渢o the extent practicable,鈥� test English-language learners in a 鈥渓anguage and form most likely to yield accurate data on what students know and can do.鈥�

The June 1 lawsuit filed in state superior court in San Francisco argues the state is breaking the law because it hasn鈥檛 produced mathematics and reading tests in Spanish or other languages commonly spoken by English-language learners, nor does it have tests in simplified English.

District officials say in the lawsuit that their schools are being penalized because some of them haven鈥檛 met AYP goals for English-language learners.

They imply that the state鈥檚 lack of valid testing for such students is making their schools look bad. After all, they argue, some English-language learners would score much better on standardized tests if they were tested in their native languages.

The No Child Left Behind Act鈥攚hich holds schools accountable not only for overall student achievement, but also for the performance of key student subgroups鈥攑ermits English-language learners to take math and reading tests in their native languages for the first three years they attend U.S. schools, and for two additional years on a student-by-student basis.

Only 11 states use such native-language tests statewide and as part of their accountability systems.

Hilary McLean, a spokeswoman for Jack O鈥機onnell, California鈥檚 state superintendent of public instruction, responded to the lawsuit by saying, 鈥淭he most practicable approach is to provide the test in English.鈥� Ms. McLean added that it wouldn鈥檛 be fair to create a test in some languages and not in others spoken by the state鈥檚 1.6 million English-language learners. And to devise tests in all of the native languages, she said, would be 鈥渃omplex and costly.鈥�

Plus, she said, because California鈥檚 reading test is supposed to tell whether students have learned English language arts, it wouldn鈥檛 make sense to give it in any language but English.

California is the second state to be sued on whether it provides tests in Spanish for students who aren鈥檛 proficient in English.

The 17,000-student Reading school district filed a complaint with the Pennsylvania Department of 91制片厂视频 in August 2003 arguing that some of its schools hadn鈥檛 made AYP in part because the state didn鈥檛 provide tests in Spanish, and asked for relief from sanctions placed on those schools.

When the relief was rejected, the district took the matter to the Pennsylvania Commonwealth Court. That court ruled last August that it was up to the state to decide whether to develop tests in Spanish.

That same month, the Reading district filed an appeal on the court鈥檚 ruling with the Pennsylvania Supreme Court, which hasn鈥檛 yet decided if it will hear the case.

Bottom Line

According to the U.S. Department of 91制片厂视频, the bottom line is that states must provide testing accommodations for English-language learners, said Kathleen Leos, the associate deputy undersecretary for the department鈥檚 office of English-language acquisition. Whether they create tests in Spanish or other native languages is optional, she said.

But Paul Weckstein, the co-director of the Center for Law and 91制片厂视频, based in Washington, said the department may not have the final word on the subject. He said states could run into trouble with the No Child Left Behind Act, federal civil rights laws, and, in some cases, their own state laws, if they haven鈥檛 made sufficient efforts to provide tests in native languages.

Since 1994, federal law has said that states should 鈥渢o the extent practicable鈥� test an English-language learner in a language and form that produces reliable results. Most states with tests in native languages made them before the No Child Left Behind Act, a revision of the Elementary and Secondary 91制片厂视频 Act.

New requirements for English-language learners in the 2002 law are spurring more activity on that front. For example, a consortium of nine states, led by Wisconsin, plans to develop a language arts test in Spanish by 2008 that would be used by English-language learners in place of their states鈥� reading tests. It would be based on Spanish language arts standards, which consortium members are drafting.

Most states with tests in foreign tongues, however, have simply provided written translations of the academic tests they give to all students. And most have translated tests only into Spanish.

The 91制片厂视频 Department counts 14 states as having assessments in students鈥� native languages, including those that have merely been translated from regular tests. But 91制片厂视频 Week reporting found that only 11 of those states use those tests statewide and as part of their accountability systems.

Some state education officials say the alternative tests have been worth the money and effort.

Alexa E. Posney, the assistant commissioner of education for Kansas, said her state spent $21,000 for a one-time translation of its math and reading tests. The state also has tests in simplified English. Ms. Posney said that both kinds of tests have helped schools meet their AYP goals.

Of the 36 states that reported complete information on AYP for English-language learners to the federal 91制片厂视频 Department in December, only two states鈥擜labama and Michigan鈥攎et their goals in reading and math in the 2003-04 school year. (鈥淔ederal Data Show Gains on Language,鈥� March 23, 2005.)

That means hundreds of schools aren鈥檛 making AYP for English-language learners.