The rising stakes of standards-based education in the United States increasingly dictate the educational decisions that immediately impact a child’s progress in school, threatening to compromise students’ fundamental right to education. Most dramatically, high-stakes tests predicate important scholastic benchmarks, such as progressing to the next grade or graduating from high school, on a student’s standardized test performance. The increased popularity of high-stakes testing in recent years is part of a general movement toward standardized testing in American schools. Since the enactment of the No Child Left Behind Act (NCLB) in 2001, all fifty U.S. states have developed standardized testing systems to measure students’ achievement and improvement in math, reading, and language arts in grades three through eight. Many states go further, requiring that students pass standardized exams in order to graduate from high school. In 2005, nineteen states, including New York, only awarded high school diplomas to students who passed statewide exit exams, and seven states plan to phase in such exams before 2012. Proponents of standardized and high-stakes tests argue that only with elevated standards and accountability can the United States ensure that all students are receiving a quality education. However, teachers, students, parents, and advocates have objected to standardized tests, alleging that they force schools to divert resources from teaching content to teaching students how to pass the tests. High-stakes tests in particular have met with criticism that they unfairly punish students for the failures of the education system. Missing from the debate so far has been a legal analysis of how high-stakes testing affects students’ right to education under international law. Focusing on New York City as a case study, this article uses an international human rights perspective to examine the implications of high-stakes testing for the rights of English language learners (ELLs), whose first language is not English, and who are working towards English proficiency. A number of factors raise concerns about the impact of high-stakes testing on ELLs. Most obviously, ELLs may score lower on tests, with the result that they are disproportionately subject to high-stakes consequences, because of limited English language proficiency or lack of familiarity with the cultural assumptions upon which the tests are based. Additionally, however, such tests put adverse pressures and penalties on schools, particularly schools with high numbers of disadvantaged and/or minority students that in turn decrease educational opportunities for ELL students. This article will evaluate these concerns using the structure promoted by the first United Nations special rapporteur on the right to education, Katarina Tomagevski. Under this analysis, the four elements of the right to education are accessibility, acceptability, adaptability, and availability (the “4-A framework”). The article concludes that while high-stakes tests need not necessarily conflict with established principles of international law with respect to the right to education, the manner in which high-stakes tests are currently being implemented in New York City has serious implications for ELLs’ right to education.
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