Filing 134

MOTION for Summary Judgment , MOTION for Permanent Injunction by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Hutter Decl., # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Declaration Hudis Decl., # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit T, # 13 Exhibit U, # 14 Exhibit Z, # 15 Exhibit BB, # 16 Exhibit CC, # 17 Exhibit EE, # 18 Exhibit GG, # 19 Exhibit HH, # 20 Exhibit II, # 21 Exhibit JJ, # 22 Exhibit KK, # 23 Exhibit LL, # 24 Exhibit MM, # 25 Declaration Ernesto Decl., # 26 Exhibit NN, # 27 Exhibit OO, # 28 Exhibit PP, # 29 Exhibit QQ, # 30 Exhibit RR, # 31 Exhibit SS, # 32 Exhibit TT, # 33 Exhibit UU, # 34 Declaration Wise Decl., # 35 Exhibit KKK, # 36 Exhibit LLL, # 37 Declaration Camara Decl., # 38 Exhibit MMM, # 39 Declaration Levine Decl., # 40 Exhibit NNN, # 41 Exhibit PPP, # 42 Exhibit QQQ, # 43 Exhibit UUU, # 44 Declaration Geisinger Decl., # 45 Declaration Schneider Decl., # 46 Exhibit Levine Depo Tr., # 47 Exhibit No. 1207 to Levine Depo Tr., # 48 Exhibit No. 1308 to Levine Depo Tr., # 49 No. 1308 to Levine Depo Tr., # 50 Text of Proposed Order)(Elgarten, Clifton)

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Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 1 of 13 EXHIBIT NN Case No. 1:14-cv-00857-TSC-DAR Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 2 of 13 EXHIBIT Ì &ET- AMERICAN PSYCHOLOGICAL ASSOCIATION April 7, 2000 Ms. Jill Morningstar, Legislative Assistant U. S. Senator Paul Wellstone 136 Hart Senate Office Building Washington, DC 20510 Dear Jill: We very much appreciate your seeking the endorsement of the American Psychological Association (APA) for the bill introduced by Senator Wellstone this week on Fairness and Accuracy in Student Testing. We wanted to get back to you quickly with an interim response about the Association's views. As we mentioned on the phone earlier this week, APA is not in a position to endorse the bill at this time. APA policy on this issue is guided by The Standards.* Educational and Psychological Testing, the 1999 version of which was developed over a six-year period with the American Educational Research Association and the National Council on Measuretnent in Education. While we are drafting a more comprehensive response for the Senator, we wanted to let you know the general areas of our concerns. First, we believe that the most fair and appropriate way to approach the problems Senator Wellstone seeks to address is to investigate high stakes decision-making in educational settinus, how such decisions are informed, and the impact on educational outcomes. The critical issue is not tests, per se (provided they are valid, reliable instruments) but rather the instances wherein they and other measures of accountability (i.e. grades), are used inappropriately in making these decisions. Second, the bill appears to misstate the intent of both the Standards and the National Academy of Sciences (NAS) report by holding tests for tracking, retention and graduation to the same standard. The NAS study and the Standards treat those uses differently. Both documents treat graduation tests as certification tests, and do not prohibit assigning them determinative weight, but offer reconunendations for implementing them fairly. We understand the Senator wants to offer this amendment to the Elementary and Secondary Education Act soon and would apprcciate APA's assistance in doing so. Regrettably, APA has not yet adopted a policy that goes beyond the Standards to address the issues of how high stakes decision-making in schools affects education and educational outcomes more broadly, particularly for certain groups of children. Accordingly, it would be impossible for us to offer you language that the Association could endorse within your timefrarne. However, ve would welcome the opportunity to work with you on your Plan B: an amendment to authorize specific evaluation research that would provide additional needed infomiation about the impact of high stakes decision-making on the educational opportunities of different populations of children, and on the educational system more generally. The NAS report and other sources point to significant gaps in the data. We hope to provide specific draft language to you late next week. Again, we appreciate your willingness to work with us. Senator Wellstone has been a champion of many of the issues most iniportant to psychologists, and we are grateful to him. Sincerely, Kob., Ellen G. Garrison, Ph.D. Director of Public Interest Policy Patricia C. Kobor Director of Science Policy 750 First Sireel, NE Washington, DC 20302-4242 202( 33&550D (202) 336.0122 TDD Web. www.oFx,.oro Please Recycle AERA_APA_NCME_0031816 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 3 of 13 0: \ KOS \ KOS00.280 S.L.C. 106T CONGRESS 2D SEssioNr s IN THE SENATE OF THE UNITED ST.ATES Mr. WELLSTON-E introduced the foBowing bill; which was read twice and referred to the Committee on. A BILL To provide for fairness and accuracy in student testing. Be it enacted by the Senate and House of Representa2 Oyes of the United States of America in Congress assembled, 3 SECTION 1. FAIRNESS AND ACCURACY IN STUDENT TEST- 4 5 ING. (a) FINDLNTGS.Congress finds the following: 6 (1) The use of large-scale achievement tests in 7 education has grown significantly in recent years. 8 States and local school districts have increasingly 9 used these tests in such contexts as raisinz student 10 academic standards to make high-stakes decisions 11 with important consequences for individual students. YV,1 29T MIL 00/0C/C0 AERA_APA_NOME_0031817 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 4 of 13 0: \ KOS \KOS00.280 S.L.C. 2 1 such as tracking (assigming students to schools, pro- 2 grams, or classes based on achievement level), pro- 3 motion of students to the next grade, and gradua- 4 tion of students from secondary school. 5 (2) The serious and often adverse co.nsequences 6 resulting from the sole or determinative reliance on 7 large-scale tests h_ave increasingly resulted in clues- tions and significant concerns by students, parents, 9 teachers, and school administrators about hoi,v to en- 10 sure that such tests are used appropriately and in 11 a manner that is fair. 12 (3) In 1997, Congress directed the National 13 Academy of Sciences to "conduct a study and make 14 -written recommendations on appropriate methods, 15 practices, and safeguards to ensure that, arnonz 16 other things, 17 to assess student performance are not used in a dis- 18 criminatory manner or inappropriately for student 19 promotion, trackin.g, or graduation.". esting and new tests that are used 20 21 through its National Research Council, completed its 22 study and issued a report entitled 'High Stakes: 23 Testing for Tracking, Promotion and Graduation'. 24 Guided by principles of m.easurement validity, attri- 25 sooZi (4) In 1999, the National Academy of Sciences, bation of cause, and effectiveness of trea:tment, the IVA LVST 00/0C/C0 AERA_APA_NCME_0031818 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 5 of 13 0: \ KOS \KOS00.280 3 1 National Research Council made key findings for ap- 2 propriate test use in educational settings, in.cluding 3 the following: 4 (A) When tests are used in ways that meet 5 relevant psychometric, legal, and educational 6 standards, students' scores provide important 7 information, that combined with information 8 from other sources, can lead to decisions that 9 promote student learning and equality of oppor- 10 tunity. 11 (B) Tests are not perfect. Test questions 12 are a sample of possible questions that could be 13 as.ked in a given area. Moreover, a test score is 14 not an exact measure of a student's knowledge 15 or skills. 16 (C) To the extent that all students are ex- 17 pected to meet world-class standards, there is a 18 need to provide world-class curricula and in- 19 struction to all students. However, in most of 20 the Nation, much needs to be done before a 21 world-class curriculum and world-class instruc- 22 tion will be in place. At present, curriculum 23 does not usually place sufficient emphasis on 24 student understanding and application of con- 25 900 PI L.7 cepts, as opposed to memorization and skill YVA LZ:RT IJLL 00/0C/C0 AERA_APA_NOME_0031819 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 6 of 13 0: \KOS \KOS00.280 S.L.C. 4 mastery. In addition, instruction in core sub2 jects typically has been and remains highly 3 stratified. What teachers teach and vliat stu- 4 dents learn vary widely by track, with those in 5 loi,ver tracks receiving far less than a workl- 6 class curriculum. 7 (D) Problems of test validity are greatest 8 among young children, and there is a greater 9 risk of error when such tests are employed to 10 make significant decisions about children who 11 are less than 8 years old or below grade 3, or 12 about their schools. However, well-designed as- 13 sessments may be useful in monitoring trends 14 in the educational development of populations 15 of students who have reached. age 5. 16 (5) The National Research Council made the 17 following recommendations: 18 19 a.nd others who share re,sponsibility for edu- 20 cational outcomes are to discharge their respon- 21: sibility effectively, they should have accegs to 22 information about the nature and interpretation 23 of tests and test scores. 24 should be made available to the public and 25 LOO (A) If parents, educators, public officials, should be incorporated into teacher education Such information YVI LZi fIHJ. 00/0C/C0 AERA_APA_NCME_0031820 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 7 of 13 S.LC. 0: \ KOS \ KOS00.280 5 1 and into educational programs for principals, 2 administrators, public officials, and others. 3 A test may appropriately be used to 4 lead curricular reform, but it should not also be 5 used to make high-stakes decisions about incli- 6 -vidual students until test users can show that 7 the test measures what they have been taught. High-sfaRes decisions such as tracking, 9 promotion, and g-radvation should not automati- 10 cally be made on the basis of a single test score 11 but should be buttressed by other relevant in- 12 forxnation about the student's lmowledge and 13 skill, such as grades, teacher recommendations, 14 and extenuating circumstances. 15 In general, large-scale assessments 16 should not be used to make high-stakes deci- 17 sions about students who are less than 8 years 18 old or enrolled below grade 3. 19 20 routinely include a well-designed evaluation 21 component, Policymakers should monitor both 22 the intended and unintended consequences of 23 high-stake assessments on all students ancl 24 ROO fpi High-stakes testing programs should sionificant subgroups of students, including mi- rid RZ:RT ART. 00/nC/f:0 AERA_APA_NCME_0031821 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 8 of 13 0: \ KOS \ KOS00.280 S.L. C. 6 1 norities, English-language learners, and stu- 2 dents with disabilities. 3 (6) These principles and findings of the Na- 4 tional Academy of Sciences are supported in signifi- 5 cant measure by the Standards for Educational and 6 Psychological Testing, adopted ancl approved in De- 7 cember of 1999, by the leading experts and profes- 8 sional organizations on testing, including the _Maier- 9 ican Educational Research Association, American. 10 Psychological Association, and the National Council 11 on Measurement in Education. 12 (b) TEST PERFORMANCE .If performance on a 13 standardized test is considered as part of any decision 14 about the retention, graduation, tracking, or within-class 15 ability grouping of an individual student by a State edu- 16 cational agency or local educational agency that receives 17 funds under the Elementary and Secondary Education Act 18 of 1965, such test performance sha.11 not be th.e sole deter- 19 minant in such decision and may be considered in rnakinz 20 such decision only if21 22 lidity and reliability for the purpose for which the 23 test's results are being used, including the validity 24 and reliability of any 25 600P (1) the test meets professional standards of va- standard set or established for use on the test; Cut score or performance TVA QZ:RT nut nn/nr7/en AERAAPANCME0031822 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 9 of 13 0: \ KOS \ KOS00.280 S.L.C. 7 1 (2) the test allows its asers to make score inter- 2 pretations in relation to a functional performance 3 level, 4 that are made in relation to the performance of oth- 5 ers, is based on State or local content and perfonn- 6 ance standards, and is aligned with the curriculum 7 and classroom instruction; as distinguished from those interpretations 8 (3) multiple measures of student achievement 9 are utilized, including grades and evaluations by 10 teachers, so that scores from larg_e-scale_aasessments 11 are never the only source of information used nor 12 assigned determinative vveight in making a high- 13 stakes decision about an individual student_ 14 (4) students tested have been provided multiple 15 opportunities to demon.strate proficiency in the sub- 16 ject matter covered by the test; 17 (5) the test is administered in accordance with 18 the written guidance from the test developer or pub. 19 lisher; 20 (6) the State educational agency or local edu- 21 cational agency has evidence that the test is of ade- 22 (pate technical quality for each purpose for which 23 the test is used 24 25 OTOZ (7) the State educational agency or local educational agency provides appropriate accommoda- YVA 9Z:5TIÌHL 00/oc/c0 AERA_APA_NCME_0031823 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 10 of 13 0: \ KOS \ KOS00.280 &LC. 8 1 tons and alternate assessments for students with 2 disabilities that provide the students with a valid op- 3 portunity to show what they k_now and can do; 4 (8) the State educational agency or local eclu- 5 cational agency provides appropriate accommoda- 6 tions for students with limited English proficiency, 7 includin.g- 8 (A) if such a student is tested in English, 9 the student received academic instruction pri- 10 marily in English for at least 3 years prior to 11 the test, or if the student received instruction in 12 English for more than such 3 years, the local 13 educational agency determines that the student 14 has achieved sufficient English proficiency to 15 ensure that the test will accurately measure the 16 student's subject matter knowledge and sldlls; 17 18 English proficiency who have not been taught 19 primarily in English for 3 years prior to the 20 test, such students are assessed, to the greatest 21 extent practicable, in the language and form 22 most likely to yield accurate and reliable infor- 23 /nation about what those students know and 94 TTOVI (B) in the case of students with limited can do; and IVA Z:8T aa 00/0C/C0 AERA_APA_NOME_0031824 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 11 of 13 0: \ KOS \ KOSOO .280 s.L,C 9 1 (C) in the ease of Spanish-speaking stu- 2 cleats with limited English proficiency, such 3 students are assessed using tests developed and 4 written in Spanish, if Spanish language tests 5 are more likely than English language tests to 6 yield accurate and reliable information on what 7 those students know and can do; and 8 (9) the test is not used for a decision a.bout 9 promotion or placement in special education for a 10 child below the age of 8 or grade 3. 11 I- (C) EVALUATIONS. 12 (1 ) STATE EDUCATIONAL 13 State educational agency that receives funds under 14 the Elementary and Secondary Education Act of 15 1965 and uses a standardized test as part of a high 16 stakes decision described in subsection (b), shall con- 17 duct a comprehensive e-valuation of the impact of the 18 test's use on students' education and educational 19 outcomes, with particular con_sideration given to the 20 impact on individual students and subgroups of stu- 21 dents clisaggregated by- socioeconomic .status, race, 22 ethnicity, limited English proficiency, disability, and 23 gender. The State educational agency shall rnake the 24 results of the evaluation available to the public and 25 shall provide clear and comprehensible information YVA 17:RT 11111 nnino/c, AERA_APA_NOME_0031825 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 12 of 13 0: \ kOS \ KOS00.280 S.L.C. l about the nature, use, and interpretation of the test 2 and the scores the test generate. 3 (2) LOCAL EDUCATIONAL AGENCY.--Each local 4 educational agency that receives funds uncler the El- 5 ementary and. Secondary Education ,.4..ct of 196:5, 6 uses a standardized test as part of a high stakes de- 7 cision described in subsection (b), and is located in 8 a State that does not conduct a.n evaluation under 9 para,graph (1), shall conduct a comprehensive eval- 10 uation of the impact of the test's use on students' 11 education and educational outcomes, with particular 12 consideration given to the impact on individual stu- dents and subgroups of students disaggregated by 14 socioeconomic status, race, ethnicity, limited English 15 proficiency, disability, and gender. The local edu- 16 cational agency shall make the results of the evalua- 17 tion available to the public and shall provide clear 18 and comprehensible information about the nature, 19 use, and interpretation of the test and the scores the 20 test generate. 21 (3) DEPARTMENT OF EDUCATION.-Tli See-. 23 retary shall(A) conduct an evaluation similar to the 24 evaluation described in paragraph (1) among a 22 CTOU XVd 6Z:RI mu. nninric, AERA_APA_NCME_0031826 Case 1:14-cv-00857-TSC Document 60-50 Filed 12/21/15 Page 13 of 13 S L C. 0: \KOS \KOS00 280 11 1 representative sample of States and local &ILI- 2 cational agencies; (B) report the results of such evaluation to 3 4 Congress; and (C) make the results of the evaluation 5 6 available to the public. 7 (d) DEFINITION OF STANDARDIZES TEST.In this 8 section the term "standardized test" means a test that 9 is administered and scored under conditions uniform to 10 all students so that the test scores are comparable across 11 individuals. ...... fT00 .... 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