By starting out with the two functions which President Nixon has recommended for funding in Fiscal Year 1974, Section 1202 State Commissions will be in a much better position later on to take on the other functions for which they are slated than they will be if their establishment is delayed until they have to take on all functions at once.

Section 1202 State Postsecondary Education Commissions will be of great benefit to the States and the National Government. By helping to get them established as soon as possible, you will be providing a valuable service to the American people.

Sincerely yours,

WARREN G. HILL,

Chancellor.

Mr. DELLENBACK. Let me ask a question about that aspect of your reason that deals with meeting around the table though. There is nothing to prohibit any State from doing that within its own structure and framework without any higher education amendments or education amendments of 1972 at all, is there?

Mr. HILL. That is correct, and we do.

Mr. DELLENBACK. But all the States do not?

Mr. HILL. That is correct.

Mr. DELLENBACK. Then why do we need 1202 commissions to have this? Why don't we just need enlightened State educators and systems within each individual State to have this type of discussion?

Mr. HILL. Maybe they are in very short supply, sir.

Mr. DELLENBACK. We know this is not true in either Connecticut or Oregon, and we can say we are sure it is not true in Michigan or North Carolina or New York.

Mr. HILL. I think there has been a lot done in many States or most States in the last decade in trying to bring groups together. What really happens at the State level is not just an educational matter, but a political matter as well. I think there has to be at times encouragement given for particular organizations for format or procedures so that you move ahead.

Now all of the work that went into those guidelines in that background paper for the 1202 commission, I think, was extremely helpful because everybody was reading the same thing.

I know we can work together at the State level and do. I am concerned that we not create 1202 commissions and we are very close to one in my State-by chance in the structure we currently have. I do not wish to finalize that unless we have the Federal regulations, because I think it would create problems of having to go back and correct or change to comply with them. That is in response to someone's earlier comment rather than yours.

But your question says, may States and those agencies and people who are within them do valuable things without there being 1202 commissions. Certainly. However, I think we would do it better with a Federal cog and Federal support for this context, much more than we have ever had in the past.

Mr. DELLENBACK. So even though the 1202 section of the law was not intended to create the die from which all commissions would automatically be stamped out, all alike unto each other, you feel its existence in the law has proved a valuable catalyst to get States to move already, and once it is finalized it will be even more valuable in getting States to move.

Mr. HILL. You say it so much better than I said it. I appreciate it. Mr. MILLARD. May I add a comment to that? I think it would not be fair to say the States have not moved. As a matter of fact over the last 12 years the number of agencies that have been created, I think, have indicated clearly this is the idea that the States will follow whether there is 1202 or not. The problem, though, is a somewhat different one and I think it needs to be in some respects isolated.

Mr. Harrison's question earlier is, I think, relevant to it. Given that 40-some States do at the present have some agency with responsibility for planning, most of the States at this point do recognize the need for a more inclusive aspect of the planning process. The question, the problem at this point, is a peculiar one in terms of the sequence of events. Now four States, as you noticed, have actually passed legislation without the guidelines available.

In two cases these are States in which the legislature is biennial, in which if they did not do it-in one case it was a 60-day legislative session-if they did not do something at this legislature, it would be 1975 before any action could have been taken. The problem is this.

In a great many States, North Carolina and otherwise, if action is taken at this point and if the guidelines do come out subsequently as a result of whatever kind of funding there may be, and if the Commissioner does have the prerogative of recognizing what I believe is the language of the law, recognizing the appropriate commission, a good deal of the work that has been done could be undone very quickly and the States would be in an even more difficult situation than they are now.

I would be willing to wager that instead of the 9 and 4 you would have pretty close to 50 States that would have acted if the direction had been clear.

But they don't want to be caught. It is much more difficult to undo legislation or undo gubernatorial action after the fact in light of changed guidelines, than it is to do it with the guidelines present. We have pushed hard, as Dr. Friday has indicated, as ACE and others have, for flexibility in this matter. But it becomes very important that somewhere along the line the recognition of this flexibility be official.

Mr. DELLENBACK. Let me make one more comment and then ask a brief question in connection with it.

Some early drafts of this task force report have talked in terms of the need for adequate representatives from minority groups, from women, from ethnic sources, and so on. There is even a suggestion that affirmative action be required in the appointment of commission members.

Do you have a brief comment that you might make on that in reference to the question of whether that might not disqualify boards without which that kind of qualification might otherwise be adequate under the statute and regulations? Is this a desirable feature in your mind at this point?

We will leave longer comments for a future time, but would you have any brief comments now?

Mr. HILL. I think what exists in the law is desirable. I think the fact that it is clear that you can either use existing boards or create new ones, amend them, provides a flexibility that is needed here. But I do not think that higher education through the seventies is either going to have the public understanding or support that it should have unless we make more determined efforts to provide the kind of board and planning structure than we have in the past.

I am not speaking about Connecticut. Fortuitously we are very close to that in our board representation now. I have no problem with it. My earlier concerns were that we were going to wind up around the table with a lot of people that were on the payroll of all these various institutions, and I thought that was wrong but I think it has been corrected.

Mr. DELLENBACK. But you do not feel in Connecticut any requirement relative to representation of racial or minority or women or affirmative action in this regard would cause any difficulty with your 1,202 commissions.

Mr. HILL. I am not trying to be oblique. There are very few things struck off by the hands of mortal men that cannot cause problems somewhere, but I do not see this as a major problem in our State. Mr. DELLENBACK. Thank you, Mr. Chairman.

Mr. ANDREWS. Off the record.

[Discussion off the record.]

Mr. ANDREWS. Our concluding witness is Darrell Holmes, president, East Stroudsburg State College.

I believe you know Dr. John Caldwell very well. It is a pleasure to have you here.

STATEMENT OF DR. DARRELL HOLMES, PRESIDENT, EAST

STROUDSBURG STATE COLLEGE

Dr. HOLMES. Thank you and it is a pleasure to be here. Incidentally, the incoming president of the land grant group is Dr. Dowdy. Another gratuitous fact, Al Whiting is the president-elect of the American Association of State Colleges and Universities. So we are two North Carolina-related national organizations at the present time.

We are looking forward to being at Boone this summer for a council of presidents to meet in a seminar to try to study the problems of higher education. I would like to introduce my wife, who is Mrs. Holmes, who is here. You see, we had the foresight to represent many interests.

I am Darrell Holmes. I am president of East Stroudsburg State College, and I am here today to represent the 421 public institutions of higher education comprising the American Association of State Colleges and Universities and the National Association of State Universities and Land-Grant Colleges. These institutions enroll more than 4 million students and offer comprehensive education opportunities in or near over 100 American cities as well as in scores of rural communities where they often are the community's sole source of opportunity for post-secondary education.

Mr. Chairman, a number of the points which I have made in this document have already been made and with your permission I would simply like to summarize some of the salient features. We generally agree with those points which have been made by the previous witnesses and in the interests of your time and to possibly handle any

questions I would be pleased to summarize for you, whatever your wish may be.

Mr. ANDREWS. That is very considerate of you. Without objection Dr. Holmes' original statement will be inserted in the record, but his remarks will be limited only to certain portions.

[Dr. Holmes' prepared testimony follows:]

TESTIMONY PRESENTED BY DR. DARRELL HOLMES, PRESIDENT, EAST STROUDSBURG STATE COLLEGE, ON BEHALF OF AMERICAN ASSOCIATION OF STATE COLLEGES AND UNIVERSITIES, NATIONAL ASSOCIATION OF STATE UNIVERSITIES AND LAND-GRANT COLLEGES

Mr. Chairman and members of the subcommittee, my name is Darrell Holmes. I am the President of East Stroudsburg State College, and I am here today to represent the 427 public institutions of higher education comprising the American Association of State Colleges and Universities and the National Association of State Universities and Land-Grant Colleges. These institutions enroll more than four million students and offer comprehensive education opportunities in or near over 100 American cities as well as in scores of rural communities where they often are the community's sole source of opportunity for post-secondary education ***. As I will elaborate upon later in my testimony, there exists one general but mistaken view of these institutions. Among these institutions are the most sophisticated research universities. They include those institutions that originated as teacher's colleges which have developed into comprehensive institutions, offering a wide array of baccalaureate programs. But less well known is the fact that a substantial number of these institutions, either due to their origin as technical institutions or because they responded to the needs of the communities they serve, have developed technical curricula and offer one-year and two-year programs and award associate degrees across the entire spectrum of occupational and vocational education programs.

We are grateful for the opportunity to appear before you today to discuss our viewpoints concerning the so-called "1202 Commissions." Before discussing aspects of the history of this piece of legislation and the proposed regulations prepared by the U.S. Office of Education, it seems appropriate to note that the 1202 Commissions as such need not necessarily be the major focus of these hearings. Perhaps more to the point is the broader question of the relationship between bills passed by the Congress and signed into law by the President and the implementation of those laws by the appropriate executive departments. If I may paraphrase a statement that you, Mr. Chairman, made in addressing a legislative conference of AASCU on February 28th, gathered to express concern at the lack of urgent action on student aid, "Let us for a change try the unusual, let us follow the law." At that time, Mr. Chairman, you were stressing the absolute requirement for the Congress to appropriate monies for the Supplementary Education Opportunity Grant (SEOG) program in the face of the failure of the Administration to request funding for the program as is clearly and incontrovertably required by the "Education Amendments of 1972," in order to trigger the new Basic Grant Program. The Office of Education, to date, has not distributed guidelines and regulations for the SEOG program. I would submit that the failure of the Office of Education on the SEOG's, a program very likely to be funded, will have a greater and more damaging impact on the welfare of the students in post-secondary education than the decision to withhold guidelines for the 1202 Commissions. Regrettably, the Acting Commissioner may be correct in assuming that the programs for which the commisions were intended to plan may well not be funded in the near future. Granted that the law passed last year authorizes the establishment of the commissions, it likewise authorizes public service fellowships and cost of education allowances for institutions and other programs for which no guidelines have emanated from the Office of Education. Thus, without special reference to the virtues of the letter of the law permitting the establishment of a federally supported, comprehensive, post-secondary education planning commission in the states, or the quality of the guidelines drawn up by the Office of Education, we initially direct this testimony to the question of the arrogation of authority by a segment of the Executive Branch of the Government contravening the stated intent of the Congress and the President, who signed the law. This issue, of course, Mr. Chairman, takes us far beyond the principal item under consideration before this committee now, and extends to the question of impoundment of funds and requests for appropriations rescissions that serve no legitimate purpose while violating clear Congressional

intent. The question is whether, in effect, no matter what program the Congress determines should be funded, the Executive has the full right to establish its own priorities and disregard Congressional action.

Already a record is being established in the courts, in the Missouri Highway Trust Fund Case recently ruled upon by an appellate court. There is every reason to believe that the courts would rule similarly on all of the instances of rescission requests particularly in programs such as the Bankhead-Jones Land-Grant Instructional Funds. There, a record of six decades of funding coupled with the Presidential signature on a supplemental appropriation, followed by a delay of three months before a suggestion of a rescission was introduced, has caused damages that may be proved before any court of law. We believe that ultimately the Administration will accept the necessity of the balance of power and will allocate funds as appropriated.

With particular regard to the 1202 Commissions, although our Associations have taken no formal position on it we recognize their authorization as part of the law and would no more challenge its validity than we would question any other law of the land. We have had an opportunity, however, to give consideration to various aspects of the 1202 Commissions and offer these observations. As we understand the ultimate objectives of the legislation, the Congress believed that with a variety of new needs having to be met by institutions of post-secondary education, particularly responsive to interest in occupational education training for communities, it would be appropriate and wise for the Federal Government to assist the states' own planning. Those states choosing to review the entire spectrum of community-oriented education and plan for future development so as to avoid unnecessary duplication, and to concomitantly fill gaps in education opportunity resulting from the absence of course offerings, would be given funds to cover the costs of the planning commission. In this intent, the Congress reflected a concern already manifesting itself in most of our states where boards of higher education and other kinds of coordinating councils have been or are being established. Initially, thus, the idea was to encourage planning for a specific category of education and to help defray the cost of carrying out such planning. In addition, the Congress intended to permit the states to consolidate state functions related to several other federal programs where the states believed such consolidation to be wise. Always, the Congress intended the individual states to carry out such planning in a way to be determined by each state. Since most states already had planning boards for higher education in general, this new planning function is dependent upon the existence of other programs sponsored by the Federal Government, principally those in the recently enacted Title X.

Notwithstanding the potential significance of Section 1202, because of the complex nature of the "Education Amendments of 1972," and the shortage of time to delve into all aspects of that legislation, little legislative history was established to clarify without any doubt the intent of Congress with regard to the purposes of the commissions.

The absence of this record has proved to be most unfortunate. Although the law clearly calls solely for a planning body, proponents of rigid coordination and centralized control of post-secondary education within the states felt free to advise the OE to design guidelines that would go far beyond the law. Where the law is permissive they would make it mandatory; where the law makes USOE a conduit for funds, they would have it become a dictatorial.

It is paradoxical that an Administration which has made one of its maxims the wisdom of local control, proposing such legislation as revenue-sharing and planning to decentralize federal agencies, should at the same time contemplate regulations which would result in quite the opposite effect. As the regulations were developed (and published in December as a Preliminary Report and "Issue Paper") OE would decide the substance and form for each state that would establish a 1202 Commission mandating coordination never contemplated by the Congress. In view of the Administration's stated desire to remove centralized control from Washington into the states and localities, it is especially distressing that regulations should be drafted by the OE arrogating to the Commissioner authority to dictate to the states, denying them funds that might be appropriated until such time as they complied. I am told by friends in the legal profession that any regulations that insist on more than a statement, "We are in compliance," from the states might well violate the established principle of comity.