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Voc.-Ed. Center Award Improper, U.S. Judge Rules

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A federal judge ruled last week that the U.S. Education Department acted improperly in the grant competition for the National Center for Research in Vocational Education.

In his opinion in Ohio State University v. U.S. Department of Education, U.S. District Judge George C. Smith of the Southern Ohio District said the proposal submitted by the University of California at Berkeley did not meet the statutory requirements of the Carl D. Perkins Vocational Education Act and should have been ruled ineligible at the beginning of the award process last August.

His order directs the Secretary of Education to "vacate the designation of the University of California at Berkeley'' as the national center, return the Berkeley application as ineligible, and "begin anew the award process.''

A spokesman for Secretary of Education William J. Bennett said last week that the department would appeal the ruling. "We continue to believe that we acted entirely properly in awarding the grant,'' she said. "We disagree strongly with the judge's reasoning and decision.''

The ruling focused solely on the University of California's failure in its original application to satisfy the eligibility criteria contained in the Congressional act establishing the center.

The judge discounted the argument by Ohio State that the peer-review process had been flawed because several of the panelists lacked national status in the field, a requirement under the law.

"Such a determination is beyond the competence of this court and is not subject to judicial review,'' Judge Smith wrote. "This court will not substitute its judgment for that of the Secretary.''

But the Berkeley application, which was subsequently altered to conform with the law, originally cited co-directors for the center, despite language in the Perkins act specifying a single director.

It also violated Congressional intent, according to Judge Smith, by proposing that a consortium of institutions, rather than one university, bear the responsibility for carrying out the center's mission.

Judge Smith also said the Education Department was in error in allowing changes to be made in the Berkeley proposal after the competition began.

The department has acknowledged that certain changes in the proposal were made during the negotiation process that took place after review panelists had selected a winner.

"The Secretary dismissed the statutory criterion [for a single director] as a 'minor technical issue' that would be resolved in the negotiation process,'' Judge Smith wrote. " ... there is nothing minor when an issue concerns the intent of Congress as expressed in a statute.''

Differing Interpretations

Ohio State University, which has housed the center for 10 years, filed the suit last January, after the department awarded the five-year, $30-million grant to Berkeley despite a Congressional investigation that pointed to improprieties in the selection process. (See Education Week, Jan. 20, 1988.)

Ray Ryan, director of the center at Ohio State, was cautious last week in assessing the opinion, saying he wanted to study it further.

"We are very pleased with the court's decision and excited about the potential,'' he said. Officials at Berkeley declined to comment.

Elsewhere, there were differing interpretations of the judge's order to begin a new award process.

Lawyers for Ohio State argued that the order meant the competition should begin again only at the review stage, which, because of Berkeley's ineligibility, would result in a competition between Ohio State and Northern Arizona University, the other applicant.

Others maintained that the order directs that the competiton begin again from "scratch,'' opening the field for new competition.

'Apply Now, Conform Later'

In ruling against the consortium concept, the judge cited Congressional records that he said showed that in 1976 and again in 1984, the Congress "determined that the efficiency and efficacy of the National Center required a 'critical mass of resources' in one center.''

The original consortium application listed a group of research institutions including the universities of Minnesota and Illinois; the RAND Corporation; Teachers College, Columbia University; and Virginia Polytechnic Institute and State University.

During the negotiation process, wording was changed in the application to refer to Berkeley as "the'' center and the other institutions as sub-contractors--an arrangement that is allowable under the law.

"In light of legislative history ... and the plain language of the statute, an 'apply now, conform later' scheme is clearly not what Congress intended,'' the judge wrote."The negotiation process permitted the Secretary to engage in result orientation, while paying lip service to statutory and regulatory guidelines.''

The financial contribution the university would make to the center was also changed in the application after negotiation. Under the Perkins Act, the institution awarded the center is required to pledge a "substantial financial contribution.''

Berkeley, however, listed in its original plan contributions from each of the consortium institutions, for a total of $685,597. Its commitment was to be $93,241.

Once the changes were made related to the designation of Berkeley as the center, "the Secretary concluded ... that a larger proportion of the contribution had to come directly from Berkeley, rather than simply flow through Berkeley from other institutions,'' according to the opinion.
Berkeley's contribution was changed to $600,000 annually.

The judge called the actions "admissions by the Secretary and Berkeley [that] support the conclusion that the application was ineligible at the very threshold of this process.''

Did Not Permit Review

Ohio State also contested the department's failure to allow the selection panel to review the amended Berkeley application. The department contended that such a review was unneccesary because none of the changes "were significant under the seven criteria panelists applied.''

"It was none of the site reviewer's business, quite frankly, your Honor, whether or not there was a substantial contribution, whether or not there were co-directors, whether or not there was one national center,'' the ruling quotes the department's lawyers as arguing.

But Judge Smith said the changes would have held great significance for the reviewers' scores under the management criterion, which accounted for 20 percent of the total score and was the category in which the scores varied most dramatically.

'Abuse of Discretion'

Though he did not rule on the review panel's qualifications, Judge Smith said the department had shown "an abuse of discretion'' and "the appearance of impropriety'' in appointing as panelists two educators who had had previous contacts with the center at Ohio State.

Phillip Atkinson, professor of education at the Baruch College of the City University of New York, had previously reviewed the applications for planning grants for the center competition.

And Donald Roberts, an adjunct faculty member at George Washington University's school of education, had sat on a panel that conducted an annual review of the performance of the national center in 1986.

While the full impact of the judge's order was still being assessed, officials at both Ohio State and Berkeley expressed concern last week over the absence of a national center while litigation continues.

Two Centers, or None?

Officials at the Education Department said they would ask the appellate court to halt the judge's orders while the case is pending, which would leave Berkeley with the designation of "national center.''

But an amendment to the omnibus bill reauthorizing federal education programs, now in conference, could designate Ohio State University as the interim center.

The amendment, which also called for the investigation of the selection process, was offered by Senator Howard Metzenbaum, Democrat of Ohio, in December.

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