The authors argue that English language learner (ELL) language assessment policy and poor language tests partly account for ELLs' disproportionate representation in special education. Previous research indicates that many states routinely assess ELLs' first language (L1) at initial enrollment and that ELLs identified as limited in both languages have relatively high rates of identification in special education. Two common tests, the Language Assessment Scales-Oral (LAS-O) Espanol and the Idea Proficiency Test I-Oral (IPT) Spanish, are shown to identify 74 and 90, respectively, Spanish-background ELLs (N=145) as limited L1 students, whereas a natural language measure found only 2 of participants to have unexpectedly high morphological error rates. Correlations are provided. The authors recommend changes in language testing policies and practices for ELLs.