I first learned about 1202 State Commissions from Chancellor McNeil for whom I am executive assistant at the University of Maine, who is a commissioner to ECS from Maine and a member of SHEEO, but we didn't pay attention to these provisions until late 1971-after the Senate and House provisions had passed the respective Houses. Up to that time we had looked at these, but certainly we were no purer than all the others who, for one reason or another, did not study the bills. When we did examine the House and Senate bills carefully, a number of concerns were raised: there were several different planning provisions within both bills that would conflict if all were enacted without modification; and second, the mandatory nature of Senate provisions had the potential for forcing the States to shift or modify existing agencies or create new structures rather than to improve the substance of State planning and coordination of planning. We in Maine were especially concerned about section 1202 because the State had just gone through 3 years of turmoil in an effort to form a statewide higher education agency the consolidated University of Maine. But as we read the Senate and House bills, Maine would have had to change its structure again to meet the Federal requirements. We brought these concerns to the attention of Maine's Congressional Delegation, Senator Pell, Mrs. Green, to members of the congressional staffs, and to the higher educational community, and then wrote a paper entitled, "An Analysis of the Implications for State Organization of Sections of S. 659 and H.R. 7248 Relating to State Structure for Planning and Coordination of Postsecondary Education." But I should emphasize that this paper was written on March 17 after the conference committee had started its work. So at that point, it was late in the game for anybody to be talking about the substantive aspects of the legislation. The immediate issue at that point, then, was, given these provisions in the various parts of the bills: "How might the conference committee bring them together?" As I understand what happened in the conference committee (obviously, I was not present), when the conferees got to item of difference 54 on the Higher Education Facilities Act, Mr. Meeds made the point the committee ought to look at all items related to State planning and structure at one time. The staff was then instructed to prepare compromise wording drawing together all of these items in some way. The staff returned to the conference committee with this wording a week later and it was finally adopted with only minor changes. The conference agreement, as I understand it, answers most of our original concerns. First of all, it drew together and coordinated previously separate planning authorities in relationship to the 1202-State commission. Second, it made consolidation of other State commissions with the 1202-State commission optional after July 1, 1973. This option may appear to be inconsistent with the first point-the importance of coordinated planning-but it does provide States with some flexibility in implementation. Third, it retained the provision grants for comprehensive studies and inventories and comprehensive planning and demonstrated an intent that Federal Government be of assistance to the States in this area. Above all the conference agreement stresses flexibility: A Stateby-State response to the requirements regarding broad and equitable representation of the general public and institutions on State commissions. The agreement emphasized that the requirements could be met in many different ways, with States exercising options provided in the law. It is not my understanding that the conferees intended for the 1202State commission to be a major vehicle of the Federal Government for reorganizing the postsecondary education structure of every State; or that it was to be a mandate from the Federal Government that the 1202-State commission was the model to follow. In fact, I believe it was just the reverse; it was an effort by Federal law and assistance to supplement and encourage and facilitate the action at the State level in a manner consistent with State law and tradition. This was my understanding of the conference agreement right after it was reached, but what occurred afterwards was a real surprise. Before the law was signed by the President, Deputy Commissioner Cosand called together a group of people broadly representative of all concerned with this section of the new law: From the States' chief school officers, to State agency people for higher education and community colleges, college presidents, and a whole range of other people. Members of the Congress and staffs were not included at that stage. This group set about in June through July to set down the general assumptions upon which implementation of the law was to be based. It is my own opinion, but I think it could be documented, that some of those who participated in this Cosand group forgot how the compromise was put together and tended to focus on those elements of the legislation which they had supported prior to the development of the integrated conference agreement. For example, if some supported occupational education, that was the part they knew the most about, and they intended to view the role and functions of 1202 State commissions in terms of occupational education. The same thing, I think, could be said regarding those who supported the community college provisions. Most importantly, those who supported the Senate State commission provisions, including a stronger statement of congressional mandate, tended to miss the change in the conference agreement toward a lessening of the mandatory nature of the original Senate provisions. An important result of the Cosand group was the preparation of a list of general assumptions to guide implementation. These were transmitted by Deputy Commissioner Cosand to the Internal HEW task force working on the rules and regulations on State commissions. They then became the guiding assumptions under which the task force began to develop the "Issue Papers." These general assumptions deviated sharply from congressional intent and the law, but I should emphasize they contained a lot of good statements. My argument against the assumptions is that they did not reflect the law, but tended to be what someone thought the law should have said. I might point out at this stage that there were really three different Office of Education task forces all working on part of the subject you are talking about: one on State commissions; one on occupational edu cation; and another on community colleges. This would seem to create a problem of having to relate several pieces to the whole. But there were at least three task forces. Now the State commission task force worked from summer to the end of November, essentially on its own, drawing on a few outside. people, but not making a deliberate effort to draw people in. They were swamped with requests for assistance, for advice, and offers of advice, but not until the end of November did the results of their work show, and that, of course, was in the form of the first "Issue Paper." I think everybody within the higher education field would say it was an unprecedented and laudatory move for the Office of Education to distribute that "Issue Paper" to over 5,000 people for comments and recommendations, to draw the broadest possible advice on how the paper should be changed to serve as a sound basis for the regulations. But, because the general assumptions developed by the Cosand group were used as the basis for conclusions in the "Issue Paper," the paper was, in my view, a far cry of what that conference committee agreed to. It was an overstatement of the congressional mandate regarding comprehensive State planning and coordination (at least the Federal Government's role in such planning and coordination); it emphasized the reshaping by the Federal Government of State structures for planning and coordination; and gave far more emphasis to the role of 1202 State commissions in coordination, administration and governance as opposed to what I believe was the intended emphasis: integrated planning, but not coordination and administration. In effect, the paper said, that while the law provides options, that it is in line with congressional intent that States not exercise options. Above all, it displayed a belief that the Congress really wanted the Federal Government, through the Office of Education, to take an active role in reshaping the way things were being done at a State level. I may be a little wrong about that, but it was frankly a shock to see how far the "Issue Paper" strayed from what I understood the law to say, and from what I understood the sense of the conference committee to be. There were at least 500 responses to the first issue paper. On the basis of those responses, Dr. John Phillips, chairman of the task force, prepared an entirely rewritten version of the paper. Unfortunately, however, very few people saw that rewritten paper officially in the middle of January, and, as you all know, nothing was ever released. So now the public is left with the impression the first issue paper is the way OE believes the law should be interpreted. Yet, since I saw an unofficial draft of the revised paper, I know John Phillips did an excellent job and the results of his work were far closer to the law and congressional intent than the first paper. That then is a rough overview of what I recall of events that occurred over the time, and I would be pleased to answer any questions on the details of what happened. I have two other exhibits which I will not read. You have copies of these before you. Over the next few days of hearings, witnesses probably will talk about two kinds of issues: First the pros and cons of whether the revised issue paper and regulations should be issued and whether implementaion of section 1202 should proceed; and second, 94-977 0-73- 4 substantive questions regarding interpretation of congressional intent and the long-range implications of these provisions. Exhibit 2 PROS AND CONS ON THE IMPACT OF THE INDEFINITE POSTPONEMENT OF FURTHER IMPLEMENTATION OF SECTION 1202 AND RELATED PROVISIONS PART A-PROS A. Concerns of Those Who Urge That Implementation Continue. 1. The Law Should Be Implemented.-Despite possible weaknesses in section 1202 and related provisions, they are the law and the Administration should proceed to implement the law whether or not the Administration agrees with the concept or with the priority of funding the related programs. 2. Failure to Issue Rules and Regulations Blocks Appropriations Process.— Failure to issue the rules and regulations for section 1202 will block funding of important related programs: Comprehensive planning for postsecondary education. In effect, then, the Administration is blocking an opportunity for Congress to exercise its authority with respect to appropriations. 3. Evidence of Lack of Commitment of Federal Government to Improved StateLevel Planning.-The enactment of section 1202 demonstrated a concern of the Federal government regarding the need for effective comprehensive statewide planning encompassing all of postsecondary education. A failure to implement this law may decrease the incentives for states, institutions and various interests to work for such comprehensive planning. 4. Effect of Postponement on States Which Have Begun to Implement Law.— After the enactment of the Education Amendments of 1972, most states began to consider how to implement the 1202 State Commission provisions: Some states designated or established 1202 State Commissions. Some governors or legislatures prepared legislation or executive orders and were just waiting for the final rules and regulations before moving ahead. To delay the rules and regulations will leave many states in a state of flux. In fact, several states acted or made plans to act on the basis of the contents of the first USOE Issue Paper. To the extent that the positions in the Issue Paper have since been changed several states may have acted on the basis of inaccurate information. 5. Postponement Discourages Healthy Interchange. The debate accompanying the anticipated implementation of Section 1202 created a healthy interchange at both the national and state levels among elements of postsecondary education which have not always worked closely together in the past: public, private, proprietary and postsecondary vocational-technical institutions; various state agencies; and the general public. After this healthy interchange has been stimulated and the incentatives for participation in a statewide comprehensive planning process have been increased, it would be a major setback for the future of postsecondary education not to follow through with implementation of the law. 6. Does the Administration's Postponement of Implementation of 1202 State Commissions Reflect an Underlying Difference in Philosophy Regarding the Economics of Postsecondary Education? Some see the indefinite postponement as reflecting a policy position of the Administration that the Federal government should not support the development of state planning and coordinating agencies since such agencies may interfere with or obstruct the flow of market forces in the supply and demand for postsecondary education. Such a policy position would see the role of the Federal government shifting to that of supporting or supplementing the financing of postsecondary education through the private market place by such means as loan guarantees, interest subsidies and grants only for exceptionally limited national purposes. It would encourage states to raise tuition at public institutions to increase the competition between public and private institutions. PART B-CONS B. Concerns of Those Who Question Desirability or Feasibility of Further Implementation of 1202 State Commissions 1. Opposition to the Law to Begin With.-Some urge that implementation not continue because the law was ill-conceived to begin with. In most instances, this position does not represent opposition to the need for improved state-wide planning for postsecondary education. But serious questions are raised regarding the lack of thorough debate prior to enactment, the emphasis of the law on the form of state planning rather than the substance, and the apparent disagreement regarding the extent to which Congress intended 1202 State Commissions to become the dominant planning and coordinating body in each state. 2. If Related Programs Will Not Be Funded, Do We Need 1202 State Commissions? If it is unlikely that programs related to 1202 State Commissions (section 1203, Title X, and Titles VI and VII) will be funded in either FY 73 or FY 74, the need for 1202 State Commissions-from a Federal viewpoint-no longer exists. As a corollary to this point, if 1202 State Commissions are implemented, then the incentives for funding of related programs will increase. If one is opposed to the further expansion and improvement of community colleges (or believes that this program has a relatively low priority compared to student aid or other programs), then one might oppose implementation of 1202 State Commissions. 3. States and Others Were Relieved That Implementation was Indefinitely Postponed. To counter the argument that many states have acted or were just about to act as soon as rules and regulations were issued, evidence can be cited that many states, and many within postsecondary education, heaved a sigh of relief when they received Commissioner Ottina's letter announcing indefinite postponement. The reasons for this reaction are as varied as the number of states and institutions in the nation. For example: a. Implementation of 1202 State Commissions can become a hot political issue not only among elements of postsecondary education, but also among branches of state government and among existing state agencies. A chance to cool such an issue is often welcome. b. In several cases, modification of existing agencies to meet the requirements of section 1202 may be difficult if not impossible. This situation could mean that states would have to create entirely new planning agencies to meet Federal requirements. This is especially frustrating to states which have just gone through significant reorganizations of postsecondary education state-wide structure and which feel that the existing structure is meeting state needs effectively. Unless the need for an agency such as a 1202 State Commission is clear within the context of state priorities, states will be reluctant to establish such commissions solely to become eligible for relatively limited sums of Federal funds. 4. Other Laws Have Not Been Implemented, So Why Should the Administration Be Obligated To Implement This Law? To counter the argument that the Administration should be obligated to implement the law of the land, it will be argued by some that few objections can be heard regarding the Administration's decisions not to implement other programs under the Education Amendments of 1972 such as section 122 of those amendments providing Emergency Assistance to Institutions of Higher Education. If this and other programs are not being implemented because of funding and other priorities, then why is it not justifiable for the same reasons to delay implementation of section 1202 and related provisions? Exhibit 3 CONTINUING ISSUES OR QUESTIONS REGARDING IMPLEMENTATION OF SECTION 1202 AND RELATED PROVISIONS 1. Role of the Federal Government.-How involved should the Federal government become in passing judgment on implementation of the law by the States? a. In determining who or what agency within the state has authority to designate or establish the 1202 State Commission? |