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2 Judges Bar E.D. From Implementing Rule on Tests for Postsecondary Study

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Washington--Two federal judges have temporarily blocked the Education Department from implementing new postsecondary-testing requirements for students who have not graduated from high school.

The provisions were to go into effect Jan. 1, but judges in U.S. District Courts for the District of Columbia and the Northern District of California, ruling on separate challenges, ordered the department to halt enforcement of the new "ability-to-benefit" requirements, pending court hearings on the matter.

The provisions, enacted by the Congress last year during the budget-reconciliation and appropriations processes, require students without a high-school diploma to pass an independently administered test before they can be admitted into a postsecondary institution. The goal of the effort is to reduce student-loan defaults.

According to an Education Department notice published in the Dec. 19, 1990 Federal Register, colleges and trade schools can lose eligibility for federal funds if they accept students who do not take the tests, even if those students do not receive Stafford Student Loans.

The notice also listed 14 tests the department considers acceptable to gauge a student's "ability-to-benefit" from postsecondary study.

But U.S. District Judge George H. Revercomb on Dec. 28 barred the department "from in any way enforcing" the new testing provisions at least until a Jan. 11 hearing.

E.F. Wonderlic Personnel Test Inc., a Chicago-based testing company,4filed the suit after two of its tests, which the suit said are used by more than 700 schools, were not included on the department's list. The company argued in the suit that its tests meet all department requirements.

"You get effectively legislated out of business without any warning, without questions, without a chance for review," said Charles Wonderlic, the company's vice president. "It's not fair."

A second restraining order was issued Jan. 2 in San Francisco pending a Jan. 14 hearing there. The California Attorney General's office filed the suit on behalf of the California Community Colleges, a group of 107 schools.

The schools charged that the short period of time between publication of the notice and the date the regulation was to take effect was unfair, and that the threat of losing federal funding for admitting a student who failed one of the tests was unrealistic and harsh.

Leland Myers, director of federal relations for the community colleges, said a California law forbids schools to turn away students for failing such a test. Moreover, he said, the department did not include a test for non-native English speakers who are going to school to learn English.

"We consider this a federal intrusion on the way we run our higher-education system," he said.

Other organizations are upset with the regulations and may file lawsuits, according to Carol Cataldo, executive director of the National Accrediting Commission of Cosmetology Arts and Sciences.

Ms. Cataldo said the approved tests on the list are geared toward colleges, not trade schools.

"These tests determine the ability to read, write, and do mathematics, but they don't talk about one's ability to succeed in a trade school," she said. Because the department had little time to review potential tests, she added, it should have established a temporary list that included tests approved by accrediting agencies.

The notice did include a number of criteria that other tests could meet to win the department's approval. But critics said it would take too long to receive approval, forcing students enrolling in school this semester to bypass schools that cannot comply with the notice or to take tests other than those used previously by the school.

Lawrence M. Rudner, who directs the Educational Research and Improvement Center's clearinghouse on testing and measurement, and who is reviewing the approved tests for Ms. Cataldo, said it appears that the department did not review its approved tests thoroughly.

"It looks like a handful of tests that somebody just heard of, but by no means is it a comprehensive list, and it shows no sensitivity to the vast number of quality trade schools," he said.

A department spokesman said the department could do nothing but comply with the law passed by the Congress, which stipulated that the new testing provisions be implemented Jan. 1, 1991.

He said the department is conferring with the Justice Department over how to proceed in the court hearings.

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