Indiana’s third grade retention bill could violate federal law on English learners, advocates say

Sign up for Chalkbeat Indiana’s free daily newsletter to keep up with Indianapolis Public Schools, Marion County’s township districts, and statewide education news.

A bill that would hold back more third graders in Indiana has raised alarms among teachers of English language learners, who say the retention mandate ignores research on language acquisition, and could violate federal law.

Senate Bill 1 — a priority bill for GOP lawmakers this year — requires schools to remediate young students who don’t demonstrate reading skills and retain most third graders who don’t pass the state reading test, the IREAD3. It’s part of a legislative effort to address the state’s literacy scores, which have declined for more than a decade.

The bill has passed the Senate and is heading for a full vote in the House with support from the Indiana Department of Education.

The bill includes “good cause” exemptions to retention for several groups of students, including English learners who have received services for less than two years and whose teachers and parents agree that promotion is appropriate.

But advocates for English learners say that the exemption for this population doesn’t align with what research says about how long it takes for students to learn a new language.

With a growing population of 93,000 English learners in Indiana, and a history of shortages of educators licensed to teach language learners, advocates worry that English learners will be denied an appropriate education if they’re retained. The state also has an increasing number of immigrant students, some of whom will need language services.

Advocates also say the provision conflicts with the state’s implementation of the Every Student Succeeds Act, which gives students six years to demonstrate proficiency in English before their schools face a penalty. Federal law also states that English learners should not be retained solely on the basis of their English language proficiency and that they are entitled to age-appropriate curriculum and participation in school programs.

State officials who support the bill, however, say it does not conflict with federal law or state rules.

Sen. Linda Rogers, the bill’s co-author, said in a statement that the language conforms with federal guidance, and that the bill’s authors “worked to ensure that was the case as the legislation was being written.”

And the Indiana Department of Education said in a statement that federal guidance requires school districts to help students become English proficient and participate in regular classes “within a reasonable period of time.”

Per the bill, that reasonable amount of time is two years to make sure EL students aren’t retained only because of “their lack of English proficiency and before they have been provided with meaningful opportunity and academic instruction,” the IDOE statement said.

But learning a new language can take anywhere from five to 14 years, said Patricia Morita-Mullaney, a professor of language and literacy at Purdue University and past president of the Indiana Teachers of English to Speakers of Other Languages, or INTESOL.

English learners who are retained under the provisions of Senate Bill 1 could sue the state for failing to meet federal requirements, Morita-Mullaney said.

“Indiana is setting itself up for an enormous class action lawsuit,” Morita-Mullaney said.

Meeting the needs of English learners

Historically, most of Indiana’s young English learners were U.S. citizens who had attended American schools since kindergarten, Morita-Mullaney said. A large percentage then could become eligible for retention in third grade, when they are in their fourth year of receiving English language services — an insufficient amount of time, she said.

The effect would be a penalty for the child, instead of the school as currently outlined by ESSA, she said.

Current Indiana law exempts English learners from retention.

In addition to concerns about violating federal law, holding students back based on their English proficiency has a negative impact on their content knowledge, said Donna Albrecht, a professor of ENL/ESL at Indiana University Southeast and a member of the advocacy team at INTESOL. Instead, teachers should be trained in methods that teach content and language at the same time.

“It’s not that they weren’t taught to read; they’re learning two languages. It takes more time,” Albrecht said. “By the time they reach fourth and fifth grade, they’re surpassing their monolingual peers.”

Of the 2,819 English learner students who failed the IREAD-3 statewide in 2023, 1,922 received a good cause exemption from retention, while 897 did not. Most of the latter — 868 students — were promoted to fourth grade anyway. Such “social promotion” has increased in Indiana schools over the last decade.

Retaining hundreds more students will affect both urban districts like Indianapolis Public Schools, which has a large population of English learners, as well as small, rural districts where these students make up a large share of the population, Morita-Mullaney said.

In both cases, schools will need to staff additional third grade classrooms with teachers who are prepared to teach English learners, Morita-Mullaney said. Indiana schools have struggled to find enough qualified teachers for English learners — another federal requirement.

“They’ll move teachers to third grade, or they’ll bring in new people who have never been in high-stakes testing environments before,” Morita-Mullaney said.

Improving Senate Bill 1 for English learners

There are 93,625 English learners in all grades statewide in 2023-24, according to Indiana Department of Education data.

To improve the bill for English learners, INTESOL recommends changing the exemption language to reference scores on Indiana’s assessment for English learners — WIDA.

Under the organization’s proposed language, students who score less than a 5.0 proficiency level on WIDA, the score needed to exit the English learner programs and join the general student body, would be eligible for an exemption if they fail IREAD3.

On average, students gain half a level of proficiency per year on the assessment, said Albrecht. But even students who gain a full level of proficiency each year may not be ready to pass the IREAD-3 in third grade if they started learning English in kindergarten.

It’s not clear from available state data at what WIDA level students can typically pass the IREAD-3, Albrecht added. Comparing data has been challenging due to years of changes in state and federal testing, Morita-Mullaney said.

The state Department of Education said WIDA measures English language proficiency at grade level, as mandated by ESSA, while IREAD3 measures reading proficiency overall.

Advocates pushed back on this interpretation saying WIDA focuses on all parts of language, but IREAD is designed to test reading for native speakers.

Bill author Rogers also said that retention would not conflict with Indiana’s ESSA plan.

“The legislation highlights early identification of students that may not be reading proficient by the end of third grade. These students will be provided remediation and summer school aligned with the Science of Reading,” Rogers’ statement said. “The goal is not to retain anyone that doesn’t have a good cause exemption and ensure that ‘Every Child Learns to Read.’”

Previously, proponents said that retention will remain a last resort for students after they have more intervention and multiple attempts to pass the test. Still, retention is a necessary step in some cases, they said, giving students another year to develop literacy skills.

Both Rogers and Secretary of Education Katie Jenner have said they don’t believe very many students will be retained after receiving increased intervention.

“This is a crisis for our state right now and we have no time to waste,” Jenner said at a Wednesday meeting of the House Ways and Means Committee.

The bill is scheduled for a second reading in the House on Monday.

You can track Senate Bill 1 on the General Assembly website.

Aleksandra Appleton covers Indiana education policy and writes about K-12 schools across the state. Contact her at aappleton@chalkbeat.org.