shall remit within 30 days of the receipt of a written request therefor any amounts found by the Fund to be due. Such period may be extended at the discretion of the Fund upon the written request of the recipient. (20 U.S.C. 1221d; 31 U.S.C. 628) · [FR Doc. 73-5775; Filed 3-26-73; 8:45 a.m.] Mr. O'HARA. As a close reading will indicate, there are, in most of these other sections of the law, a requirement that commissions appointed pursuant to section 1202 be utilized. There is clear room for honest difference of opinion as to whether or not the absence of 1202 commissions stays the operation of these provisions of law. But we can discuss that later. Subsequent to the enactment of the 1972 legislation, the Office of Education appointed a task force, chaired by Mr. John Phillips, from whom we will hear on Thursday, to develop an issues paper outlining the nature and scope of the commissions and setting further regulations for their appointment, operation, and funding. These proposed regulations were circulated very widely within the education community, and aroused a substantial amount of comment— some of it highly critical, some of it favorable. The staff is directed to place in the record at an appropriate place, the original issues paper. [See p. 125 et seq.] After the period of comment, the task force continued to revise the guidelines. On March 7, the recipients of the first paper were startled to receive a letter from Commissioner Ottina, as follows: DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, OFFICE OF EDUCATION, Washington, D.C., March 7, 1978, DEAR COLLEAGUE: The purpose of this letter is to bring you up to date on recent developments concerning the State Postsecondary Education Commissions authorized under Section 1202 of the Higher Education Act, as amended. We received almost 500 substantive responses to our invitation of December 4 for interested parties to comment on the Preliminary Report from the Task Force on State Postsecondary Education Commissions. These comments were analyzed by the Task Force during the period of December 18-January 12, and a Revised Report, including preliminary draft regulations, was transmitted from the Task Force to this office on February 1. The Education Amendments of 1972 had envisioned major functions and responsibilities for the State Postsecondary Education Commissions in connection with the new authorizations for Comprehensive Statewide Planning (HEA Section 1203), Community College Education (HEA Title X, Part A), Occupational Education (HEA title X, Part B), and Improvement of Postsecondary Education (GEPA Section 404). In addition, the law had authorized the Section 1202 State Commissions to serve as State administrative/planning Commissions for existing programs in Community Services and Continuing Education (HEA Title I), Equipment for Undergraduate Instruction (HEA Title VI), and Grants for Construction of Undergraduate Academic Facilities (HEA Title VII). However, the Federal Budget for FY 74 provides almost no functions for the Section 1202 State Commissions to perform. The community service, instructional equipment and academic facilities grant programs are scheduled to be terminated, and no funding is provided to implement any of the community college or occupational education authorities. Furthermore, while the Budget does provide $15 million to support projects and programs for improvement of postsecondary education, it is our opinion that the implementation of the improvement of postsecondary education authority alone does not warrant the establishment of the Commissions at this time. Under the circumstances, it has been determined that we should indefinitely defer our plans for distribution of the Revised Report of the Task Force, and suspend all activity relative to establishment of the Section 1202 State Commissions. We want to express our thanks to all of you who have made suggestions and comments concerning the Section 1202 State Commissions, and to assure you that your thoughts have been taken seriously into account in the revisions to date. Sincerely, JOHN OTTINA, Acting U.S. Commissioner of Education. This decision was not greeted with unmixed cheers or disappointment. There are some who consider the original guidelines to have been unacceptable, and would have probably welcomed the revised guidelines. Others may feel the opposite way. There is no consensus in the community, and certainly no final judgment by the chairman of this committee, as to the wisdom of Commissioner Ottina's decision. On that, we will take testimony and defer judgment. But there are some things on which I am ready to make a judgment now. First, I object rather firmly to some of the phraseology in Commissioner Ottina's letter. He says, "The community service, instructional equipment and academic facilities programs are scheduled to be terminated and no funding is provided to implement" title X. Mr. Ottina here makes a common mistake. He mistakes the proposals in the budget for decisions by the institution authorized by the Constitution to make such decisions. The provisions of law which the Commissioner says are "scheduled to terminate" do have a termination date in the law, as do most other grant programs. But the decision as to termination will be made, in accordance with the Constitution, by the Congress, not by the Office of Education, not by the Office of Management and Budget, and not by the President acting on his own. The same thing is true with regard to title X. It is true that the budget contains no funds for title X. And, given the political facts, it is possible that there will not be any title X funds appropriated in the immediate future. But that does not give even my friend John Ottina the right to talk as though the decision had already been made, and the Congress can simply be ignored. This hearing, I hope, will be primarily directed toward the substantive questions involved. But I think we should all bear these constitutional issues in mind throughout. If section 1202 can be suspended by administrative fiat, the administration can ask in the budget for another example, not for a repeal of or an amendment to section 411 (b) but for a dispensation from it, then the concept of rule by law is rendered shakier. And we cannot afford in these days to tolerate any action, however motivated, no matter who commands it, which tends to diminish respect for the law. Our first witness today is Mr. Aims McGuinness, executive assistant to the chancellor, University of Maine. Mr. McGuinness is not testifying this morning in his capacity as a member of that great university system, however. We have asked him to testify on the history and background of section 1202. Last year, when the House and Senate, and subsequently the committee on con ference were considering the education amendment, Mr. McGuinness concentrated on following the development of the State commissions, and is widely thought of, in academic and legislative circles, as an expert on the history of that section and the intention of the Congress. He has been asked to testify this morning, in the hope that he will not grind any particular ax, but instead act as our instructor in this basic course on section 1202. Mr. McGuinness, please take your place at the witness stand. STATEMENT OF AIMS C. McGUINNESS, JR., EXECUTIVE ASSISTANT TO THE CHANCELLOR, UNIVERSITY OF MAINE Mr. MCGUINNESS. Thank you, Mr. Chairman. I want to restate in my own words the last point you made in your introduction: That I do not appear as a representative of a particular institution or association and therefore will attempt, as best I can, to express the different points of view that have been expressed throughout the legislative history of section 1202. I intend to cover four points in my presentation. First, I will briefly review the provisions of the law and the interrelationships among those provisions. Second, I will give you an overview of the sequence of events as I recall them, beginning from the period just prior to the conference, through to the present developments. Third, I will list some of the pros and cons which I believe you will hear on whether or not implementation should continue. And, fourth, I will list some of the issues which I believe will still be outstanding and will be presented to you by other witnesses in the next few days. I have not prepared a written statement; however, I have prepared several exhibits which outline the principal points that I will make in several parts of the presentation. I would like to turn first to what I have as exhibit 1, which is a large chart outlining the various sections of the bill. I might say to begin with that one of the most difficult tasks has been to explain to people the complexities of the various elements of this legislation: how they relate to each other, and how they will actually work together in administration. Much of the debate in the implementation has resulted from this complexity. [Exhibit 1 follows:] Mr. MCGUINNESS. On the left-hand side of the chart I have listed the 1202 State commissions. As you know, if a State desires to participate in either title X or section 1203 (which is comprehensive planning) it must establish or designate a 1202 State commission. The next section of that law, section 1202 (b), provides that State commissions may establish committees or task forces to assist in the planning process. Then, across the chart, I have listed the primary functions which a 1202 State commission may perform. The first area: That the 1202 State commission may, after July 1, 1973, be designated by a State as the State agency for title I (community service and continuing education), title VI (undergraduate instructional equipment), or title VII (undergraduate academic facilities). I put the word "optional" on the chart intentionally, because it is a debatable issue whether or not consolidation was intended to be an option. Second, the State commission may undertake comprehensive planning, with the assistance of grants by the Commissioner of Education for expansion for planning required under title X. Third, the State commission is responsible for planning relating to community colleges: development of a statewide plan on the basis of which grants are made for improvement or expansion of community colleges. Fourth, the State commission is responsible for planning related to occupational education; and finally, the State commission is to be afforded the opportunity to make comments and recommendations on grants and contracts under the Fund for Improvement of Postsecondary Education. How this legislation developed for one reason or another has not been discussed very much, primarily because the compromise in conference agreement was worked out only at the end of the legislative process. This whole area was not debated, as I will discuss a little later. I might mention several provisions in the Senate and House bills in order that you can see how these were eventually brought together in the conference agreement. First of all, the Senate bill put a great emphasis on mandatory consolidation of the State commissions under titles VI and VII with the 1202 State commission. In fact, the Senate bill required this consolidation: the law was originally written that the State higher education facilities commission might be, in fact, the 1202 State commission. The Senate bill authorized the U.S. Commissioner to make grants for comprehensive inventories and studies, but participation in such inventories and studies was not mandatory. The Senate bill also had a provision whereby the 1202 State commission was authorized to appoint a committee on community colleges. This committee itself, not the State commission, was to have done the planning for community colleges. The House bill, on the other hand, had just an authority for the establishment of a State commission. In fact, the actual wording of the law gave no purpose for the State commission. It said simply the States are authorized to establish broadly and equitably representative |