Recent data from the Council of Chief State School Officers' annual survey of state assessment programs (1998) indicate that nine states do not allow exemptions of English-language learners from one or more of their state assessments. When exemptions are allowed, amount of time in the United States (for 27 assessments) or amount of time in an English as a second language (ESL) program (for 18 assessments) are most often named as criteria. States report using formal (for 4 assessments) and informal (for 5 assessments) testing much less frequently to make exemption decisions. When exemption decisions are made at the local level, it is usually by local committees (26 reported instances) or school districts (25 reported instances) and less frequently by parents (9 reported instances). If exemption decisions are made at the local level, formal assessments tend to be used more frequently than at the state level (11 reported instances), but time in the United States (13) and time in an ESL program (16) are still the most frequently named criteria (pp. 334–338).

Decisions about exemption are thus often made on the basis of some indicator of English proficiency (see Box 9-1). Yet there is considerable variability from place to place in the criterion used and the basis for its choice. California, for example, recently tightened its policy regarding exemptions on the SAT-9, which is required each year for all students in grades 2 through 11. The new policy, which will allow far fewer exemptions, requires all English-language learners who have been in California for more than one year to take the SAT-9 in English. Children may also be assessed in their primary language, if such assessments exist.⁴

This policy is being contested. The superintendent of San Francisco's schools recently filed suit in federal court against California's test policy, arguing that the civil rights of students with limited English proficiency are being violated because they don't know enough English to read the test and show what they know about reading, writing, math, history, and science (Education Week, 1998). He argued that a longer time is required before a student is proficient enough to take the test in English—specifically, that students should be enrolled in the city's schools for 30 months