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E.D. Agrees To Submit Documents on 'Diversity'

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Washington--The Education Department late last week released to a House subcommittee internal documents relating to Secretary of Education Lamar Alexander's position on "diversity" standards for collegiate accreditors.

The release, made last Friday morning, came after a week of negotiation between Education Department officials and members of the subcommittee staff.

For nearly two weeks, and under threat of subpoena, the department had declined to surrender the documents, citing the constitutional doctrine of executive privilege. The department had made a partial disclosure.

The documents sought by the House Human Resources and Intergovernmental Relations Subcommittee under the subpoena included Mr. Alexander's draft memos on diversity standards, lawyers' comments on the drafts, recommendations from former Assistant Secretary for Postsecondary Education Leonard Haynes III and other staff members, and submissions by an accrediting agency.

Etta Fielek, a spokesman for the department, said that last Thursday evening, department officials agreed to make the documents available to the subcommittee because the panel had narrowed its request of documents. She said the original request had been "all encompassing," including information from several field offices that is now being gathered.

"I believe we've done everything possible to comply with the subcommittee's request," she said.

But an aide to Representative Ted Weiss, the Democrat of New York who chairs the subcommittee, expressed the view that the department decided to turn over the documents after the panel made clear that it was about to formally issue a subpoena for them.

By the release of the documents, the department and the White House have avoided a potential constitutional clash with the Congress over the separation of powers.

Executive privilege, which is designed to protect communications within and between the White House and federal agencies, is rarely used by agencies to prevent the release of documents. The last time it was invoked, the subcommittee aide noted, was in 1982, when the Reagan Administration unsuccessfully tried to prevent the distribution of documents relating to the Environmental Protection Agency and toxic wastes.

The aide said the Education Department and other agencies routinely try to prevent the release of information, but rarely go to the extent of invoking executive privilege.

Middle-States Rules At Issue

The controversy began when Mr. Alexander announced last month that he had asked the National Advisory Committee on Accreditation and Institutional Eligibility to review the department's recognition of the Commission on Higher Education of the Middle States Association of Colleges and Schools, which accredits postsecondary institutions in the Mid-Atlantic states, because its accreditation criteria included the racial diversity of faculty members and students. (See Education Week, April 24, 1991.)

Department recognition, renewable for up to five years, must be granted before an accrediting agency can operate. The Secretary has the authority to decide on recognition after receiving a recommendation by the national advisory committee.

Accreditation is particularly important because colleges must be accredited in order for their students to be eligible to receive federal aid.

Mr. Weiss's panel began requesting documents on the decision soon after Mr. Alexander's announcement, the subcommittee aide said, because some members believed the Secretary's position to be "a serious retrenchment of civil-rights policy."

"We have a history of doing civil-rights investigations at the Department of Education," the aide said. "We view this as a civil-rights issue."

Earlier this year, Mr. Weiss was among those who took Assistant Secretary for Civil Rights Michael L. Williams to task for declaring race-exclusive scholarships illegal.

The department originally had refused to fully comply with the subcommittee's request.

In a letter to Mr. Weiss before agreeing to release the documents, the department's general counsel,4Edward C. Stringer, said the department cited executive privilege to protect the confidentiality of its decisionmaking processes. Mr. Stringer pointed to United States v. Nixon, the 1974 Watergate case in which the U.S. Supreme Court first acknowledged executive privilege.

"Breaching that confidentiality will chill candid advice and impair the decisionmaking process," Mr. Stringer wrote.

Added Ms. Fielek, the department spokesman, "The Secretary feels that if the staff is to advise him candidly and give the best advice possible, they should do so for his ears only."

Asked last week if the department had ever invoked executive privilege during his tenure there, former Secretary of Education William J. Bennett chuckled and said, "No, we never used executive privilege."

Susan Low Bloch, a law professor at Georgetown University who specializes in the constitutional separation of powers, said it was difficult to predict how a court would have ruled on the dispute.

The Congress, she said, must have a compelling reason for requesting documents--"not just rifling through a department's drawers." The subcommittee appears to have met that test, she maintained.

She added, "The department's interest doesn't seem that high, nothing like diplomatic secrets."

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