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Mr. PHILLIPS. As you may or may not recall, the preliminary report was divided into four purposes: background and facts, general assumptions, and proposed answers.
Objections were received by a number of parties concerning the statement of program purposes as being overly broad and the effort of the task force and the effort to provide the report was to make the program purpose to conform exactly to legislative language so the revised report has a program of purpose which paralleled the different provisions of the law which related to the functions of the 1202 commission.
Similarly, in the general assumption statement, what we have tried to do there is simply amplify upon the specific legislative language for purposes of clarifying what we believe on the basis of our conferences with the members of the congressional staff in particular to be the intent of the Congress in each of these eight categorical statements that appear in the statement of the program's purpose.
On the issues, the fundamental issue with which we began the discussion of the establishment of the commission is what constitutes the authority. We basically retained the general commentary that it is the responsibility of the State and this is interpreted generally to mean the Governor or legislature in accordance with State law.
However, in response to criticisms received by a number of States, and I might say in particular the State of Michigan, the task force did insert an exception into the report which reads that in the case where a State constitution or State law clearly assigns such establishment authority to a specific State body, that body could then establish the 1202 commission. While, of course, we have to know the State commissions would not take precedence over Federal law, I would say this was with the consciousness of the peculiar problems that have arisen in the State of Michigan.
As far as administrative procedures are concerned, we had, as I mentioned earlier, received a number of concerned statements about the role of the Federal Government and specifically the role of the Office of Education in the establishment of these commissions. Section A-2 or issue No. 2, which is a discussion of those procedures, shows a fairly significant modification of the role of the U.S. Commissioner from that of validating State compliance with statutory requirements to that of merely "recognizing the commissions established by the States for purposes of participation in Federal programs."
The whole purpose here is to make certain that the Federal regulations do not deny or infringe upon the basic statutory authority of the State to establish a 1202 State commission as specified in the law.
This in turn reflects the general assumption number one built into the paper which suggests that the primary purpose of Federal regulations should be to give the States maximum flexibility to set up these commissions in accordance with peculiar State circumstances.
A discussion of what constitutes broadly and equitable representative commissions involves a number of issues. I would be happy to go into them if you would like to but fundamentally what we tried to do was to maximize the flexibility of meeting that requirement.
We had received objection to the idea that a public member could not in any way be connected with a board of trustees.
The task force studied this question rather intensely. The definition of public members was modified to be any one who was not a paid employee of postsecondary education.
We also tried to modify the definition and standards for educational representation so that the States would have a little more flexibility in making those appointments.
You may or may not recall in the preliminary report we talked in terms of an official connection with additional types of postsecondary institution.
That caused a considerable number of difficulties with a number of persons so we broadened that definition so it would be a little easier to fill those representational requirements.
We did retain the basic statement contained in the preliminary report.
I might state that we did try to modify the relationship between the 1202 commission functions and functions previously assigned to States under other Federal laws; namely, the Higher Education Act and Vocational Education Act.
One of the things we were criticized on which I neglected to mention in my opening remark is we seemed to be favoring the consolidation of the administrative and planning functions.
Again, on the basis of conservation with the congressional staff, we were advised and tried in the revised report to reflect a totally neutral view on that question, leaving it to the State's option as to whether it wished to incorporate those functions into the 1202 commission or to maintain separate commissions for other purposes.
I think it would be unwise for me to take up the committee's time discussing all of the changes in the discussion of the operations of the commissions at this time.
Perhaps that would be subject to a later meeting that might lead in that direction.
Mr. OTTINA. If I might add one postscript here, we have been talking about comments and reactions. I am sure the committee understands the reactions were to the first report, not to the one Mr. Phillips has been outlining here.
We don't know what the reactions are. We think the task force has done an excellent job, modifying the first draft to meet many of the concerns and criticisms that have been raised.
We have no assurance or knowledge of what would be now the new set of comments.
Mr. O'HARA. I think that is clear. I thank Mr. Phillips for his excellent discussion of the issues as they have evolved between these two papers.
I am sure those members of the committee
Mr. PHILLIPS. One of the things that I find most reassuring about this process was the way in which groups which previously have perhaps had a reputation for disputing among themselves have found a way to come to some agreement and to reason together as it were on some of these questions.
I think that this should be reassuring not only to our task force but to this committee as well.
Mr. O'HARA. Yes, it is, and as I indicated in my opening statement, I am frankly impressed by the way you went about this.
I thought it was a good way to go about it, to not keep everything to the last until all of a sudden one day there appears in the Federal Register a proposed set of regulations, and then people have the statutory 30-day opportunity to comment on the proposed regulations.
I think it is a good idea that you went about it the way you did and I want to compliment the Office of Education for that.
From all I gather, you did a good job in refining and highlighting the issues that were involved in this. So, I want to compliment you for this approach because I think it is a worthwhile approach. You have had people who do not ordinarily work together, at least speaking to each other and doing a minimum in any event of working together. Mr. Ottina, in the statement you mention section 404(b) of the General Education Provisions Act which reads:
"(b) No grant shall be made or contract entered into under subsection (a) for a project or program with any institution of postsecondary education unless it has been submitted to each appropriate State commission established under section 1202 of the Higher Education Act of 1965, and an opportunity afforded such commission to submit its comments and recommendations to the Secretary."
It is your belief-and the regulations proposed for the fund for the improvement of postsecondary education (see p. 15) would validate that belief that if there is no 1202 commission, then (b) is ineffective, that is, the requirement of (b) is simply no requirement because it hinges on the question submitted each appropriate State commission established under section 1202 and if there has been no commission established in a State then it can't be submitted to it.
I would agree with that interpretation of the law.
But you also indicate, States can and some States have gone ahead with the creation of a commission that they believe to meet the statutory requirements for the 1202 commission and which they have designated as their 1202 commission.
Presumably in those States, as I understand your proposed regulations, the grant has to be submitted to that commission.
Is that correct?
Mr. OTTINA. In a large sense I think that is correct. For the purpose of 404, our interpretation is indeed the one you have ended up with. The Secretary's proposed guidelines and regulations in that area in this present draft comment forms have suggested submission to any postsecondary commission which a State feels exists for the purpose of planning and other such things that he would want its advice on proposals being submitted under 404.
So, if there existed any such commission in any such State, whether it was technically a 1202 commission or not, his guidelines and regulations are asking that that commission be established in a State, give advice to him on 404 projects.
It seems to me it is important to distinguish the 404 and that interpretation of it from the remainder of the law because I think there is a difference in the law where the 1202 commissions would have certain
responsibilities to allocate funds and other kinds of elements such as
Mr. O'HARA. If you look at the proposed 404 regs., section 1501 (7), paragraph "F", it says:
No application for assistance under this part to an institution postsecondary education shall be approved until the fund has submitted it to the postsecondary education commission if there is one established or designated pursuant to the Higher Education Act of 1965 in the State in which the institution is located and afford the commission an opportunity to submit its applications to the fund. That proposed regulation seems to say if there is a 1202 commission established pursuant to the act, then it is consulted. So what I am asking you is this:
You recognize in there as you recognize in your testimony the possibility of the 1202 commission existing without the benefit of Federal regulations or guidelines.
Are you inclined to take any steps to validate or to recognize commissions as being 1202 commissions?
Mr. OTTINA. Under the proposed regulations as I have described them it seems the question is moot for 404 because the Assistant Secretary has asked for advice of any commission which may exist within a State so the validation of it being a 1202 commission would not be a crucial element, because if it were already a commission that existed in that State to carry on functions of postsecondary planning, et cetera, that he would still seek their advice.
Mr. O'HARA. In other words, he does not have to validate because whether or not it is a 1202 commission it is OK?
Mr. OTTINA. He would still seek their advice.
Mr. O'HARA. I want to assure my colleagues that I have a number of other questions but I will only ask one more at this time in any event so we can then let others have an opportunity and if we have time at the end I would like to come back and ask some more.
Let's think, what is for those who believe in the infallibility of OMB, the unthinkable.
Let's assume that Congress goes ahead and appropriates funds for title X and perhaps we do it not by exceeding the total request of the President but by reshuffling some of that request.
The 1202 commissions are tied in a little more tightly to title X than they are to the section 404 type of activities.
What would be the status of the title X application? In the case let's assume the State created its version of a 1202 commission and in the other case it did not, that instead it used its existing community college board or junior college board, or whatever.
Mr. OTTINA. Mr. Chairman, the circumstances you describe I think are quite different from the 404 responsibilities of the 1202 commissions and are a much different set of activities than they do in 404 which is advice to the Assistant Secretary for his use.
It seems to me that under the circumstances you outline—and I will stipulate with you for the purpose of the answering of the questionsall those events did come into place and that we do have an appropriation, indeed we would have to establish 1202 commissions because they do have a very clear set of responsibilities to fund these.
We would therefore encourage the States to proceed along the lines and establish those commissions so they would be able to apply for
Federal assistance in this area and we would attempt to validate the State commissions for the purpose of carrying out the Federal purpose.
Mr. O'HARA. Mr. Dellenback.
Mr. DELLENBACK. Yes, thank you very much, Mr. Chairman.
I join in welcoming you again, Mr. Ottina, Dr. Muirhead. We have said before laudatory things about you both before and can always repeat them for the record if you'd like.
In this particular instance I would say a brief word about Dr. Phillips.
I don't know that I can any longer refer to him as a young man but he is one of the brighter younger men I know in the field of education and I am pleased personally not only that you have him within the Department and doing what is very important work out in the northwestern part of the United States, but also that you have given him this particular responsibility.
I think from the comments that have been made to us in public testimony as well as through our own staff and what we know personally the job that you have all done collectively, Dr. Phillips, the Office of Education and each of you in moving forward in this area has really deserved credit and approval and we render it unto you.
I think the way in which you have gone about this is tremendous and I commend you for it.
I am attempting to ask a whole series of questions. I am deliberately going to stay away from some of the specifics such as affirmative action and public members. I think there is a series of detailed things which at the right time we would like to get into, Dr. Phillips, and there may be another opportunity to do that rather than using this time for that.
I would ask two principal questions, if I may. First, Dr. Ottina, what serious harm if any do you visualize following from the decision of this subcommittee to put in the record this draft as the chairman has announced it is intended to do?
Dr. Phillips has touched on certain problems with proceeding about disrupting other plans and confusion and broadly and equitably represented and so on.
I am not asking about those details or factors or items. I am saying it had been your thought that this draft would not be made public, that it would be kept as an internal document.
Copy was submitted to the chairman. The chairman has determined it will now become public. Is there going to be any harm of a major nature that will follow so long as it is clearly labeled as draft, tentative, do not rely upon, not yet final, however it be done?
Mr. OTTINA. The principal areas of concern-and I am sure each one of us would differ on how serious they are-would depend upon how far along we were in our particular thinking about what we were doing in the States. First of all, we don't have any assurance that the particular set of issues that we are talking about and the particular set of regulations would indeed be the set that would even be promulgated for comments.
Mr. DELLENBACK. Is that not obviated by the comments that would be attached?