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Test Publishers Question E.D.'s Chapter 1 Proposal

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Some observers have voiced concerns about the Education Department's proposal to change the way Chapter 1 students and schools are assessed, and a group that represents test publishers is even questioning whether the Clinton Administration has the legal authority to implement it.

The department is "still reviewing'' that issue, Mary Jean LeTendre, the director of compensatory-education programs, said last week.

Most observers predict that Congress will change the Chapter 1 testing requirements when it reauthorizes the Elementary and Secondary Education Act, to move away from reliance on norm-referenced, standardized tests. But Administration officials had decided they did not want to wait until the bill passes, which probably will not happen until later this year.

Department officials have said they want to allow states that have started developing new forms of student assessment to move ahead unrestrained by the current regulations, which critics inside and outside the Administration say set a low standard of achievement.

The Administration published a proposed rule in the March 10 Federal Register; the department has received 17 written comments, many endorsing the rule in concept.

The proposal would allow the Secretary of Education to exempt some states and districts from the current national evaluation standards, which require the use of norm-referenced tests alone or in tandem with other measures to assess students and programs. (See Education Week, March 23, 1994.)

Regulation or Statute

But the Association of American Publishers, whose membership includes test publishers, questions whether the department has the legal authority to issue such exemptions. The group turned in a lengthy comment on the issue.

Federal agencies cannot change regulations in a way that contradicts a statute without Congressional approval. But the proposal states that it would allow states to bypass only requirements in the current regulations, not statutory requirements.

The A.A.P. argued on behalf of test publishers--who have a portion of their livelihood at stake--that by offering exemptions from those requirements, the rule would contradict the E.S.E.A. itself, which states that local districts must evaluate the effectiveness of their Chapter 1 programs.

"How can you talk about accurately measuring progress if you don't have accurate measurement?'' asked Alan J. Thiemann, one of the lawyers representing the test publishers.

The American Psychological Association, the Center for Law and Education, several school districts, and Rep. Ted Strickland, D-Ohio, echoed the A.A.P.'s concern over the proposed waivers.

Mr. Strickland, who is a member of the House subcommittee that has jurisdiction over the E.S.E.A. legislation, said the rule could create "fly-by-night testing operations to use unproven methodologies for evaluating student progress.''

Ms. LeTendre said the department could not discuss the criticisms in detail because some matters are "still in discussion.'' But, she added, "we felt we were on strong legal ground in issuing this.''

A final rule, which will make "some clarifications,'' will be issued in the next few weeks, she said.

Waiver Criteria

Some comments submitted to the department also said the rule is too vague, especially on the criteria the Secretary would use for waiver decisions.

Other concerns centered around a proposal to allow states or districts to test Chapter 1 students at just one grade level. One district official from Utica, N.Y., argued that this would skew the assessment's reliability and that teachers would be hesitant to teach that grade if it were to be singled out.

While the National Center for Fair & Open Testing, or FairTest, did not file a formal comment, the associate director of the watchdog group, Monty Neill, said that it supports the proposed rule.

Under current rules, which have been in place since the 1988 E.S.E.A. reauthorization, all Chapter 1 students take norm-referenced tests. Schools whose scores show even a minuscule rise are usually exempt from developing a school-improvement plan.

Under the House E.S.E.A. bill that passed in March, and a companion bill approved last week by a Senate subcommittee, states would submit Chapter 1 plans that include assessment systems tied to state performance standards. The bills would encourage the use of multiple measures and assessments that address higher-order skills.

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