Can a Colorado school district that teaches reading in both English and Spanish identify a 'Significant Reading Deficiency' under the READ Act using a Spanish-language assessment, instead of being forced to test the child only in English?

Opinion 14-02: The READ Act lets districts running dual-language literacy programs identify a Significant Reading Deficiency using Spanish-language assessments

Plain-English summary

The Colorado Reading to Ensure Academic Develop Act ("READ Act"), passed in 2012, focused on early literacy. Every student in kindergarten through third grade has to be screened with one of several State Board-approved interim assessments to identify whether the student has a "Significant Reading Deficiency," which triggers a more detailed diagnostic assessment and an individualized READ Plan.

Some Colorado districts run dual-language programs that develop literacy in both English and Spanish. The Commissioner of Education asked the AG: when those districts screen English Language Learners, can they use a Spanish-normed assessment to determine whether a child has a Significant Reading Deficiency, or does the READ Act require English-only testing?

The AG concluded the READ Act does not force English-only assessment. The Act focuses on the skill of reading, not on the language. Section 22-7-1209(2)(a)(II)(D) actually requires that "[a]t least one of the recommended reading assessments... is normed for the performance of students who speak Spanish as their native language, which assessment is available in both English and Spanish." Section 22-7-1209(2)(e) gives each local education provider discretion to select which approved assessment to administer. The Act's grade-advancement provisions even contemplate the existence of students whose deficiency is "primarily" a language-skills issue, an exception that would make no sense if every district had to test in English only.

District-by-district discretion is consistent with Colorado's constitutional doctrine of local control over instruction (Colo. Const. art. IX, § 15) and with the existing English Language Proficiency Act (§ 22-24-101 et seq., C.R.S.), which separately governs annual English-proficiency testing. The READ Act tests reading; the ELPA tests English proficiency. They run on parallel tracks.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The READ Act, codified at § 22-7-1201 et seq., C.R.S., focuses on early reading proficiency in kindergarten through third grade. Its key procedural feature is the interim assessment cycle: every student in K-3 is screened using a State Board-approved interim assessment. If the assessment indicates a Significant Reading Deficiency (defined at § 22-7-1203(15) as a student not meeting "the minimum skill levels for reading competency in the areas of phonetic awareness, phonics, vocabulary development, reading fluency, including oral skills, and reading comprehension established by the state board"), the Act triggers a more detailed diagnostic assessment and the development of an individualized READ Plan for that student.

Section 22-7-1209 sets up the State Board's role in approving the interim assessment list. Section 22-7-1209(2)(a)(II)(D) is the key provision for ELL students: "At least one of the recommended reading assessments for kindergarten and first, second, and third grades is normed for the performance of students who speak Spanish as their native language, which assessment is available in both English and Spanish." Section 22-7-1209(2)(e) preserves local discretion: "Each local education provider shall select from the list of approved reading assessments those reading assessments that it will administer to students."

Two parallel statutory frameworks govern English Language Learners in Colorado:

• Local control over instruction under Colo. Const. art. IX, § 15, gives school district boards the authority to choose instructional methods. Colorado school districts have historically used either English-primary literacy programs or dual-language programs that build literacy in both English and Spanish.
• The English Language Proficiency Act ("ELPA") at § 22-24-101 et seq., C.R.S., requires districts to identify and annually assess students with limited English proficiency, and to administer programs designed to bring those students to proficiency. Section 22-24-104(6), C.R.S., expressly approves bilingual programs and English-as-a-second-language programs alike for ELPA funding.

Federal law also addresses English language proficiency through 20 U.S.C. § 7011(8) (definition of English language instructional programs) and 20 U.S.C. § 6311(b)(7) (federal annual English language proficiency assessments).

What the AG concluded at the time

The AG read the READ Act as a whole and concluded its focus is the skill of reading, not the English language specifically. Several textual features supported that reading:

The Act explicitly requires the State Board's approved assessment list to include at least one Spanish-normed instrument under § 22-7-1209(2)(a)(II)(D). Building Spanish-language assessment into the approved list makes no sense if every district must use English-only assessment.

Section 22-7-1209(2)(e) preserves local control. Each local education provider selects from the approved list. Nothing in the Act limits that choice based on whether the district runs a dual-language program.

The definition of "Significant Reading Deficiency" in § 22-7-1203(15) is silent on the testing language. The minimum skill levels established by the State Board under § 22-7-1209 do not mandate an English-only determination.

The grade-advancement carveout in § 22-7-1207(1)(b) describes notice-and-conference procedures triggered when a student is identified with a Significant Reading Deficiency, but it then exempts students whose Significant Reading Deficiency "is due primarily to the student's language skills." That exception would be functionally unnecessary if every district had to test in English only, because in that scenario the child's deficiency would always be partially or wholly language-driven.

The AG concluded that districts running dual-language literacy programs may, under § 22-7-1209(2)(e), administer Spanish-language reading assessments and make the Significant Reading Deficiency determination based on the Spanish-language results. The opinion was careful to note that this decision belongs to the district, exercising its discretion based on its instructional program. Districts running English-primary programs continue to use English assessments.

The opinion also drew a sharp line between the READ Act and the English Language Proficiency Act. ELPA's annual English-proficiency assessment requirements, and the related federal English-proficiency requirements, are unaffected by this opinion. The READ Act tests reading skill; ELPA tests English proficiency. A district can use Spanish-normed READ Act assessments while still complying with ELPA's English-language proficiency assessment obligations.

Common questions

Does this mean a Spanish-speaking child who passes a Spanish reading test will never be identified as Significantly Reading Deficient?
Not exactly. Whether a child has a Significant Reading Deficiency is judged against minimum skill levels for reading, regardless of language. A Spanish-language assessment scored against State Board-approved minimum skill levels will catch reading deficiencies in Spanish reading just as an English assessment catches them in English reading. The point of the opinion is that the deficiency determination can be made in the language the child is being taught to read in.

Does an English Language Learner still have to take English-language tests?
For ELPA purposes, yes, ELPA separately requires annual English-language proficiency assessments. The READ Act assessment is a separate process focused on reading skill. The AG was explicit that this opinion does not affect ELPA or federal English-proficiency testing obligations.

Can a district that already uses English-primary instruction switch to Spanish-language READ Act assessments?
The opinion's analysis turns on the district's literacy instructional program. Districts that teach reading primarily or only in English would assess in English, since that is the language in which their students are being taught reading. Districts running dual-language literacy programs can assess in either language.

What if a child is being taught in two languages but the family wants English-only assessment?
The READ Act assigns the assessment selection decision to the local education provider, not to the family. Parental concerns about assessment language are a matter for district-level policy, not statutory mandate.

Does the READ Act override Colorado's local-control doctrine?
No. The AG read § 22-7-1209(2)(e)'s assessment-selection language as preserving the local-control principle codified in Colo. Const. art. IX, § 15. The Act fits within the local-control framework rather than displacing it.

Does this opinion bind future commissioners or State Board members?
AG opinions are persuasive authority. The opinion's conclusion is grounded in textual analysis of the Act, so any future change in interpretation would have to grapple with the same statutory language, particularly § 22-7-1209(2)(a)(II)(D) and § 22-7-1207(1)(b)'s language-skills exception.

Citations

Constitutional:

• Colo. Const. art. IX, § 15 (local control over instruction)

Statutes:

• § 22-7-1201 et seq., C.R.S. (READ Act)
• § 22-7-1203(15), C.R.S. (Significant Reading Deficiency definition)
• § 22-7-1207(1)(b), C.R.S. (grade-advancement notice; language-skills exception)
• § 22-7-1209(2)(a)(II)(D), (2)(e), C.R.S. (interim assessment list and local selection)
• § 22-24-101 et seq., C.R.S. (English Language Proficiency Act)
• § 22-24-104(6), C.R.S. (bilingual program funding)
• 20 U.S.C. §§ 6311(b)(7), 7011(8)

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2020/03/no-14-02.pdf

Original opinion text

JOHN W. SUTHERS, Attorney General
STATE OF COLORADO
DEPARTMENT OF LAW
CYNTHIA H. COFFMAN, Chief Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL
DANIEL D. DOMENICO, Solicitor General

RALPH L. CARR COLORADO JUDICIAL CENTER
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone (720) 508-6000

FORMAL OPINION OF JOHN W. SUTHERS, Attorney General
No. 14-02
August 12, 2014

This opinion, requested by Robert Hammond, Commissioner of Education of the Colorado Department of Education, concerns the implementation of the READ Act, § 22-7-1201 et seq., C.R.S., among English Language Learner students in those districts utilizing literacy instruction in both English and Spanish.

QUESTIONS PRESENTED AND CONCLUSIONS

Question: Is it permissible under the READ Act to determine whether a child has a "Significant Reading Deficiency" by testing that child using the State Board of Education-approved interim assessments normed for students who speak Spanish as their native language?

Answer: Yes.

DISCUSSION

I. Background

The question presented in this opinion request is whether, by passing the READ Act in 2012, the General Assembly altered long-standing Colorado law regarding educational programs for English Language Learner students. Traditionally, two approaches have been used by Colorado school districts in educating English Language Learners; the first and most prevalent utilizes programs relying primarily or only on English language instruction; the second utilizes programs that offer instruction in both English and Spanish. The latter are designed to support language development and literacy in both languages. Under Colorado law, school districts have discretion to adopt and implement either approach. The question at issue here is whether the READ Act effectively prohibits dual language programs by requiring reading proficiency to be developed in English only.

The Colorado Reading to Ensure Academic Develop Act (the "READ Act") was passed by the General Assembly and signed by the Governor in 2012. The READ Act focuses on early literacy development for all students, and especially for students at risk of not achieving third grade reading proficiency. Thus, the READ Act focuses on kindergarten through third grade literacy development, literacy assessment, and individual READ plans for each student reading significantly below grade level.

To that end, the READ Act requires that all children in kindergarten through the third grade be assessed using one of several interim assessments approved by the State Board of Education to determine whether a student has a Significant Reading Deficiency. If a Significant Reading Deficiency is indicated, the READ Act requires the use of a diagnostic assessment to determine the areas of deficiency and to develop a READ Plan individualized for that student.

Within this system, confusion has arisen regarding the use of interim assessments used to identify a Significant Reading Deficiency in English Language Learners. This confusion arises because there are two different types of literacy programs used by Colorado school districts for English Language Learners; those that utilize primarily or only English language literacy instruction, and those that utilize literacy instruction in both English and Spanish. Specifically, the question presented is whether those school districts utilizing literacy instruction in both English and Spanish must assess whether their students have a Significant Reading Deficiency in English only, or whether the assessments and determination can be made in Spanish as well.

II. Analysis

The purpose of the READ Act is to ensure that students become proficient in the skill of reading. There are other provisions of law that seek to encourage and test proficiency in understanding the English language, but the READ Act's focus is on the skill, not the language in which it is employed.

The key to the READ Act is the required reading assessments. The Act charges the State Board of Education with adopting the list of approved reading assessments that school districts may use to meet the requirements of the Act. § 22-7-1209(1)(b), C.R.S. Notably, the READ Act requires that "[a]t least one of the recommended reading assessments for kindergarten and first, second, and third grades is normed for the performance of students who speak Spanish as their native language, which assessment is available in both English and Spanish." § 22-7-1209(2)(a)(II)(D), C.R.S.

Further, the Act preserves local discretion to choose which assessments they will use from the list approved by the State Board:

Each local education provider shall select from the list of approved reading assessments those reading assessments that it will administer to students in kindergarten and first, second, and third grades. Each local education provider is encouraged to use the instructional programming in reading and professional development programs included on the advisory lists...

§ 22-7-1209(2)(e), C.R.S. These provisions strongly indicate that the READ Act allows for assessments both in English and Spanish.

No other provisions in the Read Act are to the contrary. The READ Act defines the term "Significant Reading Deficiency" as meaning "that a student does not meet the minimum skill levels for reading competency in the areas of phonetic awareness, phonics, vocabulary development, reading fluency, including oral skills, and reading comprehension established by the state board pursuant to § 22-7-1209 for the student's grade level." § 22-7-1203(15), C.R.S. The definition is silent on the language in which Significant Reading Deficiency is to be determined. Nor do the minimum skill levels established by the State Board pursuant to § 22-7-1209, C.R.S. mention in which language the determination should be made.

Finally, the READ Act also directly addresses English Language Learners in the provisions governing the determination on grade advancement. This provision states that:

Beginning no later than the 2013-14 school year, if, within forty-five days before the end of any school year prior to a student's fourth grade year, a teacher finds that a student has a significant reading deficiency, personnel of the local education provider [i.e., the school district] shall provide to the student's parent the written notice described in subsection (2) of this section; except that the provisions of this section shall not apply if:...
(b) the student is a student with limited English proficiency, as defined in section 22-24-103, and the student's significant reading deficiency is due primarily to the student's language skills...

§ 22-7-1207(1)(b), C.R.S. The rest of this section of the Act goes on to outline the process used by the school district in meeting with the parent, and determining whether the student identified with the Significant Reading Deficiency should be advanced to the next grade level. Thus, if a student is identified as having a Significant Reading Deficiency and that deficiency is due primarily to that student's language skills, then that student is exempt from consideration of withholding advancement under the Act. Significantly, this provision would not apply if a student is not identified as Significantly Reading Deficient due to being able to read at or near grade level as determined by a Spanish language assessment.

Reading these provisions as a whole, I conclude that those school districts that have adopted literacy instructional programs utilizing both English and Spanish instruction are not required by the READ Act to assess whether their students have a Significant Reading Deficiency using only the English reading assessments. Rather, school districts falling into this category may, under § 22-7-1209(2)(e), C.R.S., decide to administer the Spanish language reading assessments and make the determination of a Significant Reading Deficiency based upon the students results on the Spanish language tests.

It should be noted that while the READ Act is focused on assessing and improving proficiency in the skill of reading rather than in reading the English language, other provisions of state and federal law do address English proficiency. Under the English Language Proficiency Act ("ELPA"), section 22-24-101 et seq., C.R.S., for example, each school district is required to identify students who may have limited English proficiency, to assess such students on an annual basis for English proficiency using an assessment approved by the Department, and to administer and provide programs for such students to gain proficiency in the English language. Section 22-24-105(1) and (2), C.R.S. Bilingual programs, as well as English-as-a-second-language programs, are expressly approved for funding under ELPA. Section 22-24-104(6), C.R.S. The annual English proficiency assessments required under ELPA, as well as the other English proficiency program requirements in state and federal law, are completely independent of the provisions of the READ Act, and thus are in no way impacted by this legal opinion. See also 20 U.S.C. section 7011(8) (definition of federally-mandated English language instructional program); 20 U.S.C. section 6311(b)(7) (federal requirements for annual assessments of English language proficiency).

In sum, Colorado law provides for different mechanisms for trying to test and encourage proficiency in reading and in understanding the English language. The READ Act is focused on the former, and gives each school district discretion, based upon its specific approach to instructional programming in reading, to make the determination as to which assessment to select from an approved list including both English and Spanish assessment tools. The Act appears to have been deliberately written to accommodate the fact that literacy programs utilizing primarily or only English and literacy programs utilizing instruction in both English and Spanish are in use in Colorado, and, consistent with local control, see Colo. Const., Art. IX, sec. 15, to give authority to the local school districts to determine which assessment strategy best fits its local programmatic approach.

CONCLUSION

For the foregoing reasons, I conclude that school districts may, in their discretion and based upon the literacy program in use in the district, determine whether a child has a "Significant Reading Deficiency" by testing that child using only the State Board of Education-approved interim assessments normed for students who speak Spanish as their native language.

Issued this 12th day of August, 2014.

JOHN W. SUTHERS
Colorado Attorney General