S T A T E O F N E W Y O R K
________________________________________________________________________
852
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. PAULIN, BRADLEY, ARROYO, BENEDETTO, ESPAILLAT,
N. RIVERA, SCHROEDER -- Multi-Sponsored by -- M. of A. ALFANO, BARRA,
BRENNAN, DESTITO, DIAZ, ERRIGO, MILLER, WRIGHT -- read once and
referred to the Committee on Education
AN ACT to require annual reports and create a regents review board to
audit assessments used to determine grade promotion, graduation or
adequate yearly progress for validity, reliability, alignment to stan-
dards and appropriateness of use
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. The legislature finds that the state
board of regents has established five examinations to authenticate that
a regents diploma may be conferred upon a high school student. Examina-
tions established by the state board of regents in mathematics and
English language arts to be administered in the third through eighth
grades, as well as in high school, are utilized to determine whether or
not a school, and ultimately a school district, has made adequate yearly
progress (AYP) under the federal No Child Left Behind Act (NCLB).
Schools or districts that fail to demonstrate AYP are subject to a
series of sanctions culminating in closing and reorganizing the schools
in question. This increases the emphasis on state mandated standardized
examinations having real, high stakes consequences for both students and
schools. Therefore, it is essential that these examinations be valid and
reliable measures of student attainments in learning and that they be a
demonstratively scientifically accurate means of determining a student's
readiness for graduation or grade promotion, and a school's overall
performance. Holding students and educators to high standards demands
holding tests to high psychometric and curricular standards.
Furthermore, the federal NCLB requires that assessments used for grad-
uation, promotion and to determine a school's AYP be "valid and reli-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01432-01-9
A. 852 2
able, and be consistent with relevant, nationally recognized profes-
sional and technical standards." 20 U.S.C. sec. 6311(b)(3)(C)(iii).
While much effort has been made by the commissioner of education and
the state board of regents to develop and disseminate testing instru-
ments used for graduation, promotion and determination of AYP, it is
necessary to ensure that these assessments meet professional standards
for validity, reliability, alignment to learning standards and appropri-
ateness of use. As a preliminary matter, a technical manual does not
exist for the various examinations, a basic requirement of the guide-
lines of the American Educational Research Association (AERA), the Amer-
ican Psychological Association (APA) and the National Council on Meas-
urements in Education (NCME) for scientifically valid, reliable and
appropriate test use. The AERA, APA and NCME are the primary national
organizations that set standards for the psychometric and testing
professions and the AERA is a primary resource for examining the curric-
ular alignment of tests. The commissioner of education must therefore be
required to produce the necessary indicia of test validity, reliability,
alignment to the state learning standards and appropriateness of use for
each assessment to determine graduation, promotion to grade or AYP in
accordance with requirements expressed in the scientific literature in
the field of test measurement. The department of education must also be
held accountable by an independent panel of outside experts recognized
as authorities in the field of psychometrics, pedagogy and curriculum
for the quality, validity and reliability of the examinations estab-
lished by the state board of regents.
Therefore, the legislature hereby deems it to be in the public inter-
est to require that the state department of education provide a written
report and implement an audit process to ensure validity, reliability,
alignment to the state learning standards and appropriateness of use for
each assessment used to determine graduation, promotion to grade or AYP.
S 2. Reporting requirements. 1. (a) Not later than September fifteenth
of each year, the commissioner of education shall submit to the state
board of regents, the temporary president of the senate and the speaker
of the assembly:
(i) A written report that conclusively demonstrates the validity,
reliability, alignment to the state learning standards established by
the department of education (learning standards) and appropriateness of
use for its intended purposes for each assessment (noting each instru-
ment and the dates of usage) used by the department of education to
determine a student's eligibility for a high school diploma, promotion
to grade, or measurement of adequate yearly progress (AYP) under the
federal No Child Left Behind Act of a school or district in the preced-
ing school year. Demonstration of assessment validity, reliability,
alignment to learning standards and appropriateness of use must be made
in accordance with applicable professional assessment guidelines and
standards of the American Educational Research Association (AERA), the
American Psychological Association (APA) and the National Council on
Measurement in Education (NCME) (collectively and as may be modified
from time to time, the joint standards), including pedagogic and curric-
ular, as well as psychometric, standards.
(ii) A technical manual for each assessment used by the department of
education and used to determine a student's eligibility for a high
school diploma, promotion to grade, or measurement of AYP of a school or
district in the preceding school year. The technical manual must comply
with the professional requirements of the assessment industry as recog-
nized by the AERA, APA and NCME.
A. 852 3
(b) The annual report and technical manual shall be made available to
the public upon submission to the state board of regents and to the
temporary president of the senate and the speaker of the assembly.
2. Failure of the commissioner of education to produce a report under
subparagraph (i) of paragraph (a) of subdivision one of this section or
a technical manual under subparagraph (ii) of such paragraph for any
given assessment shall be deemed a failure to demonstrate the validity,
reliability, alignment to learning standards and appropriateness of use
of such assessment, and the results from such assessment shall not be
used to determine a student's eligibility for a high school diploma,
promotion to grade, or measurement of AYP of a school or district in the
preceding school year. The commissioner of education shall substitute an
alternate measure for the decision taken on the basis of the adminis-
tered assessment. Where a decision to graduate or promote a student
cannot be based on a demonstrably valid standardized assessment, the
decision will be based on a combination of final grade in the relevant
academic courses and faculty recommendations in place of the results of
such examination. Any part of an assessment not demonstrated to be valid
shall not be used for any subsequent determination.
S 3. Audit requirements. The state board of regents shall appoint an
independent panel of experts on curricular assessments qualified to
determine whether or not an assessment meets professional standards of
the measurement industry and scholarly associations for validity, reli-
ability, alignment to learning standards and appropriateness of use. The
panel shall be known as the regents review board, hereafter referred to
as the board. The board shall consist of five members. The members of
the board will be members of the AERA or the APA. Each member of the
board will be a recognized expert in the field of testing psychometrics
or curriculum evaluation and will have at least ten years experience in
evaluating validity, reliability, alignment with learning standards and
appropriateness of use of tests at the primary and secondary school
levels.
1. The board shall review each assessment used by the department of
education to determine a student's eligibility for a high school diplo-
ma, promotion to grade, or measurement of AYP of a school or district to
determine whether the assessment meets the joint standards for assess-
ment validity, reliability, alignment to learning standards and appro-
priateness of use. The board shall also review the commissioner of
education's annual report and supporting materials concerning the valid-
ity, reliability, alignment to learning standards and appropriateness of
use of the assessments, and the technical manual of each assessment. The
board shall have complete access to all documents of the department of
education relating to the assessments reviewed by the board, including
pilot and/or field test results for such assessments and any changes to
materials or practices relating to such assessments implemented as a
result of such pilot and/or field tests. The board shall maintain the
confidentiality of all documents deemed to contain proprietary informa-
tion.
2. The board shall determine whether or not each assessment used by
the department of education for graduation, promotion or determination
of AYP is valid, reliable, aligned to the learning standards, and appro-
priate for use. The board shall submit, not later than October fifteenth
of each year, a written report of its findings to the state board of
regents, the temporary president of the senate and the speaker of the
assembly. The report shall be made available to the public upon its
submission as provided in this subdivision.
A. 852 4
3. If the board determines that any part of an assessment used by the
department of education does not meet the standards for validity, reli-
ability, alignment to learning standards or appropriateness of use under
the joint standards, such part or parts of those assessments shall be
considered invalid, and the results from such assessment shall not be
used to determine a student's eligibility for a high school diploma,
promotion to grade, or measurement of AYP of a school or district in any
school year. The commissioner of education shall substitute an alternate
measure for the decision taken on the basis of the administered assess-
ment. Where a decision to graduate or promote a student is based on an
assessment not demonstrably valid, the decision will be based on a
combination of final grade in the relevant academic courses and faculty
recommendations in place of the results of such examination. The deter-
mination of the board shall be final as to the use of those assessments.
4. If any part of an assessment used by the department of education
has been determined by the board to fail to meet the joint standards and
related research for assessment validity, reliability, alignment to
learning standards or appropriateness of use, the commissioner of educa-
tion shall not use such part or parts of the assessment in any subse-
quent test administrations.
S 4. Pilot testing. 1. No later than sixty days prior to the depart-
ment of education's scheduled administration of any assessment to deter-
mine a student's eligibility for a high school diploma, promotion to
grade, or measurement of AYP of a school or district in the preceding
school year, the commissioner of education shall submit to the board,
the state board of regents and the temporary president of the senate and
the speaker of the assembly the results of all pilot and/or field tests
conducted for that assessment and make available to the board all
records relating to such pilot and/or field tests and results. Pilot
and/or field tests are assessments administered by the department of
education that are not being used for decisions of graduation, promotion
to grade, or measurement of AYP but contain individual questions that
are to be used on assessments to determine a student's eligibility for a
high school diploma, promotion to grade, or measurement of AYP. For
purposes of this section, results of pilot and/or field tests shall
include, but not be limited to, analysis of answers to questions on the
administered pilot and/or field test based on percentage answered
correctly, breakdown of results according to race and gender, an expla-
nation of how the pilot and/or field test was administered, and an
explanation of the learning standard a question purports to test. The
failure to submit and identify pilot and/or field test results or to
provide access to records as required under this subdivision shall
preclude the department of education from using or administering the
assessment.
2. Where the board has received from the commissioner of education the
results of the pilot and/or field test for an assessment as required
under subdivision one of this section, the board shall, not later than
thirty days prior to the department of education's scheduled adminis-
tration of such assessment, deliver to the state board of regents and
the temporary president of the senate and the speaker of the assembly a
written report evaluating the pilot and/or field tests and the results
of the pilot and/or field tests provided by the department of education.
The written report of the board shall be made available to the public.
3. In its evaluation, the board will identify any recognizable short-
comings of the pilot and/or field tests. If the board determines that
any part of the pilot and/or field tests were not conducted in accord-
A. 852 5
ance with the joint standards, that they fall short of needed prepara-
tion, or if it appears to the board that the assessment for which the
pilot and/or field tests were conducted is likely to fail to meet the
criteria for validity, reliability, alignment to learning standards, or
appropriateness of use under the joint standards, the board shall recom-
mend to the state board of regents that the department of education
shall not use or administer the assessment for which the pilot and/or
field tests were conducted. The state board of regents shall, within
fourteen days of receipt of the board's report, provide to the board,
the temporary president of the senate and the speaker of the assembly
written notice of the actions proposed to be taken by the state board of
regents with respect to the recommendations of the board contained in
such report.
S 5. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date are authorized
and directed to be made and completed on or before such effective date.