1994, which, as discussed more fully below, amends Title I of the Elementary and Secondary Education Act of 1965. A second federal statute that may be relevant is the Equal Educational Opportunities Act of 1974, which provides, in part, that

No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by …

(f) the failure by an educational agency to take appropriate steps to overcome language barriers that impede equal participation by its students in its instructional programs.

There is no reported decision in which a court has invalidated a high-stakes test use under this statute. Nonetheless, given the difficulties involved in assessing English-language learners, such a claim could be available if tests of questionable validity were used as the basis for making placement or promotion decisions for such students, or if the resulting educational settings were of questionable educational value.

Chapter 9 discusses more fully both (1) the challenges of assessing English-language learners validly, particularly when tests have high-stakes consequences for students and (2) what is known about accommodations that may increase the validity of such tests.

Due Process Challenges to High-Stakes Tests

High-stakes tests may be illegal even if they are not discriminatory. For example, high school graduation tests have been challenged successfully under the due process provisions of the U.S. Constitution (Fifth and Fourteenth Amendments). Such claims usually hinge either on whether students have received sufficient advance notice of high-stakes test requirements or on whether they have been taught the knowledge and skills that a high-stakes test measures. These claims rest on the proposition that students have a constitutionally protected property interest in receiving diplomas (Debra P. v. Turlington, 1981).

Adequate Notice

One concern, first raised in the context of high-stakes graduation tests, is that school officials must ensure fairness by giving students prior notice of a new high-stakes assessment requirement. In Debra P. v. Turlington (1981), the court found that four years constituted sufficient notice; courts in Georgia and New York have found that two years did not

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