Reason Runs Out in Fulbright Squabble

Times Staff Writer

Two titans of learning, the U.S. Department of Education and UC Berkeley, cannot agree on the meaning of common sense.

When the department disqualified 30 Berkeley graduate students from competition for Fulbright scholarships last fall, officials at both institutions said it set off a chain reaction of smart people doing dumb things.

But each side says it's the other one that has abandoned reason.

The result is a stalemate of several months, with PhDs, lobbyists and lawyers arguing over everything from the hours of Bay Area post offices to the definition of the verb "to mail."

The dispute began after Berkeley missed the deadline for the applications to be postmarked -- by one day. University officials said that Federal Express, after being summoned twice, didn't show up.

The Education Department, viewing that excuse as akin to "the dog ate my homework," argued that someone should have gone to the post office.

"We can debate what mailing means," said U.S. Undersecretary of Education Eugene W. Hickock. "But mailing does not mean leaving it on the counter. That just doesn't pass the common-sense test."

Berkeley's attorney, Charles A. Miller, a veteran of numerous U.S. Supreme Court appearances, said it was the Education Department that had failed the test. The university "did what someone with moderate intelligence would have done in that circumstance," he said.

It's the department's position, he said, that "defies common sense."

Both sides agree on one thing: Those hurt most are the excluded graduate students.

"I put together the best application I could, and it's not being considered. It's frustrating," said Carl Freire, a Berkeley doctoral student in history.

With the university and the department unable to find a solution, the J. William Fulbright Foreign Scholarship Board is stepping in with a potential compromise.

On Wednesday, the board, appointed by the president of the United States, is to consider creating additional awards for at least some of the Berkeley students -- although Berkeley would have to find a way to pay for them. The university is hoping to get FedEx, which admits it missed the Oct. 20 pickup, to foot the bill.

More than money, it is the honor of winning Fulbrights that is at stake.

Named for the late Sen. J. William Fulbright of Arkansas, the much-coveted scholarships send American scholars abroad and bring foreign researchers to this country. Last year, Berkeley was among the most successful competitors for the Education Department grants, which fund research abroad for doctoral students. Fourteen Berkeley students -- about half those who applied -- received grants worth a total of about $400,000.

"Berkeley certainly has the resources to cover 15 or 20 or 30 graduate students," Hickock said. "I think it's embarrassing for Berkeley, an institution of their prestige, to have no Fulbrights, and I understand that. But it's their fault."

Berkeley did not take the department's ruling lying down. When it learned that its applicants had been disqualified, the university deployed its Washington lobbyists and lawyers. Berkeley Chancellor Robert M. Berdahl flew into town, determined to leave no doctoral student behind.

Education Department records show a total of 20 phone calls, meetings and letters between the department and Berkeley representatives from October through February.

At the university's request, Rep. Howard "Buck" McKeon (R-Santa Clarita), head of a subcommittee on higher education, convened a Jan. 20 meeting in his office. Hickock said he arrived, accompanied by the department's assistant secretary for legislative affairs, expecting to meet with McKeon alone.

Instead he found Berdahl, accompanied by Scott Sudduth, the university's Washington-based lobbyist, and Miller.

"I was thinking, this was a lot of power," Hickock said.

He and Miller described the meeting as cordial. Hickock said he returned to the department eager to help the university. But he said department lawyers decided that rules were rules: The applications were to be postmarked Oct. 20, not Oct. 21.

On the same January day Berdahl met with department officials, California Education Secretary Richard Riordan wrote to U.S. Secretary of Education Rod Paige, saying the Berkeley students "should not be punished for the error made by Federal Express."

Department officials said Paige had regularly checked with them on the status of the Berkeley applications. But Assistant Secretary of Education Sally L. Stroup said Paige's only directions had been to "do what you think is right."

The department concluded that accepting the applications would be unfair to the 60 other schools that had met the deadline. Such a decision could appear to be an act of favoritism toward Berkeley, Hickock and others said.

Nine days after Berdahl and Hickock met in McKeon's office, Miller visited the department's general counsel, Brian W. Jones.

Miller is a partner in one of Washington's most influential law firms, Covington & Burling. He took along another lawyer from the firm, D. Jean Veta -- the Education Department's deputy general counsel for two years during the Clinton administration.

At the meeting, Miller said, he emphasized that Berkeley had met the "letter and spirit" of the deadline requirement. The applications had been boxed and tendered for delivery by the deadline, so Berkeley students could have no extra time advantage, Miller said, and by using FedEx, the university had employed what it believed would be the fastest delivery method available.

Jones, the Education Department general counsel, recalled a discussion of the definition of mailing that lasted about an hour.

Then talk shifted to an argument over post office options near the campus. Berkeley's lawyers cited rush-hour traffic as an obstacle to getting the applications to a post office in Oakland that was open until midnight, Jones said.

"I don't think they realized I lived in Oakland before I took this job. I told them I don't care how bad the traffic is, if you leave at 4:30 from anywhere in Berkeley, you can get to Oakland by midnight," Jones said.

Miller said the meeting "brought home the foolishness of the department's position. Thirty students were prejudiced through no fault of their own. I don't mean to sound like a professional bleeder, but you asked the question," he told a reporter.

Berkeley officials contend that the Fulbright program itself suffers from their students' disqualification.

"Now, I'm being a bit argumentative," Miller said, "but all the other students in the country got an edge. For this year only, they got to compete for Fulbrights without 30 students from the University of California. Why is that a good thing?"

But Jones said Berkeley had only itself to blame.

"They pointed their finger in every direction but at themselves. They pointed to FedEx, the Department of Education, but they never explained to their students why they held on to that package," he said.

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