6th-Circuit Court Hears Arguments on Vocational Grant

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CINCINNATI--Lawyers for the Education Department argued in federal appeals court here last week that the subcontracting arrangement specified by the University of California at Berkeley in its winning grant application for the National Center for Research in Vocational Education met the letter of the law.

Robert Kopp, chief counsel for the department, told a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit that the university had used the term "consortium'' loosely in its proposal, and that the relationship between Berkeley and the five other institutions included in the proposal was actually one of a contractor and its subcontractors.

Such subcontractual arrangements, Mr. Kopp said, are allowed under the federal statute that governs the center.

The department is seeking to overturn a decision handed down in March by a federal district judge that nullified the selection of Berkeley as the new site of the center and ordered the department to conduct a new grant competition.

The ruling resulted from a lawsuit filed by Ohio State University, which has held the grant for the center for the past 10 years.

Ohio State turned to the courts in late January, after federal education officials announced that the five-year, $30-million grant would be awarded to Berkeley despite a report by the General Accounting Office indicating that there may have been irregularities in the selection process.

In the March decision, U.S. District Judge George C. Smith of the Southern Ohio District ruled in favor of Ohio State, saying that the consortium concept in the Berkeley application was not in line with Congressional intent for the center, as stated in the Carl D. Perkins Vocational Education Act.

The judge also said that Berkeley should not have been allowed to change the wording in its application from "consortium'' to "contractor/subcontractor'' after the grant competition began, and that the department's review panel should have seen the revised application.

In his arguments before the appellate panel, Michael McCallister, the lawyer representing Ohio State, said the Berkeley proposal employed a decentralized, regional-center approach that violated the intent of the Congress.

Regional Versus National

He pointed to the center's legislative history, which he said showed that in 1984 the Congress specifically debated the merits and disadvantages of a regional approach versus a single, national center.

The lawmakers concluded that debate, he said, by adopting wording in the law favoring "one national center ... that would provide a critical mass of resources.''

Mr. McCallister argued that Berkeley's proposal could not provide that "critical mass'' and was, because of two of its specifications, clearly advocating a regional-center approach.

According to the terms of the application, Mr. McCallister said, only 30 percent of the center's research would actually be conducted at Berkeley, with the remaining 70 percent spread out among the other five institutions.

Those institutions, part of the original "consortium,'' include the University of Illinois, the University of Minnesota, Virginia Polytechnic Institute and State University, Teacher's College at Columbia University, and the RAND Corporation.

In addition, the Ohio State lawyer said, control of the center would, according to the proposal, be vested in a board of directors made up of one representative from each institution.

According to the federal statute, he pointed out, the authority should rest with "a single director.'' Under the governing system proposed in the Berkeley application, Mr. McCallister noted, the board, with five votes, would be able to oust any one of its members, including the grant recipient, Berkeley.

Judge Cites 'Strong Argument'

Mr. Kopp dismissed that contention, saying that a vote to sever Berkeley's ties to the venture would mean the loss of funding, since the grant was issued to Berkeley and not the other institutions.

He also noted that Berkeley, in its role as the principal grant-holder, would have the power to discontinue a grant to any one of the five subcontractors without a vote.

In comments from the bench, Judge H. Ted Milburn said that Berkeley's ability to do that "is a strong argument against these institutions' being regional centers.''

Mr. Kopp also maintained that the proposal does establish a single director who would be accountable to the Education Department for the operation of the center. That director would be Charles Benson, dean of the graduate school of education at Berkeley.

Although Mr. Benson could not vote on the board of directors, he would be responsible for the center's fiscal management and would give final approval to all research plans, Mr. Kopp said.

'Substance, Not Technicalities'

Mr. McCallister also argued that the review panel for the grants competition, composed of members with knowledge of vocational education, should have judged the Berkeley application in its final, amended form. Not to have required it to meet the same technical requirements as its competitors meant the competition was basically flawed, he said. But Mr. Kopp countered that the panel's role was to judge the substance of the proposal, not its technicalities. "This is a panel of educators, not lawyers,'' he said.

Judge Ralph B. Guy, in remarks from the bench, appeared to agree with this point.

"What Congress wants is a national research center that can provide the best research in vocational education,'' Judge Guy said. "They want the panel to determine which application can do that. Their job is not to see if all the i's are dotted and the t's are crossed.''

A decision on the appeal is expected within a few weeks.

Vol. 07, Issue 38

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