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Higher Education Policy Newsletter

June 3, 2020 — Lewis-Burke Associates LLC

A VIEW FROM WASHINGTON
While Washington, D.C., like much of the country, grapples with both a pandemic and civil unrest, congressional action continues, albeit at a slower pace.  The U.S. House of Representatives passed a massive, fifth emergency stimulus package (the HEROES Act) last month that would bolster funding for the healthcare system, biomedical research, and education, among other areas.  The Senate is unlikely to consider the partisan House bill and it is unclear when the Senate will consider another round of stimulus support.  Senate committees have held virtual hearings on COVID-19 spending oversight and reopening concerns, including liability protection.  The House has delayed its return to DC until the end of June, when it will begin to consider the fiscal year (FY) 2021 government funding appropriations bills. 

The messy roll-out and implementation of COVID-19 relief among federal agencies, including the distribution of the U.S. Department of Education’s (ED) Higher Education Emergency Relief funds, has also continued.  In the midst of distributing COVID relief funding, ED managed to publish a final rule on Title IX enforcement, to be implemented by institutions by the end of the summer.  President Trump has also kept higher education on edge with the announcement of new limitations on student visas for certain Chinese students and looming threats to the Optional Practical Training (OPT) program, currently available to international students.  The President also vetoed a congressional resolution that would have blocked the Department of Education’s recent limitation on student claims of loan debt relief due to institutional fraud as allowed under the borrower defense to repayment regulations.  While the resolution is now sent back to Congress, the veto is unlikely to be overridden.  
 

IN THIS ISSUE


CONGRESSIONAL UPDATES AND NEWS
House Dems Pass $3T COVID Relief Bill 

Senate Examines Liability Issues of Reopening in Hearing   

Legislative Bills of Note 

ADMINISTRATION AND AGENCY UPDATES AND NEWS
ED Releases Final Title IX Regulations 

Administration Continues Efforts to Restrict International Students/Scholars

ED Clarifies CARES Act Reporting Requirements and Guidance for Non-Title IV Eligible Students 

CDC Releases Recommendations for Higher Education Operations during COVID-19 

National Science Foundation Holds Directorate for Education and Human Resources Advisory Committee Meeting 

Open Grant Competitions at ED and DOD 

FACTS AND FIGURES 
Unemployment Rate for Bachelor’s Degree Holder Lower in 2018 vs 2010 

WHAT WE'RE READING
Academies Report Highlights Changing Expectations of Teacher Workforce 

 

CONGRESSIONAL UPDATES AND NEWS 

House Dems Pass $3T COVID Relief Bill 

On May 15, the House of Representatives passed a fifth coronavirus response package, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act (H.R. 6800) by a vote of 208 to 199.  The bill is largely seen as a House Democrat COVID-relief priority list and Senate Republicans and the Administration have stated the bill has no chance of becoming law.  Provisions of the bill, however, could be included in a compromise COVID-relief bill, that is likely to be negotiated by Senate leadership, the Administration, and House leadership.  A centerpiece of the HEROES Act is nearly $1 trillion proposed for state and local governments to help replace revenue shortfalls.   

The HEROES Act would provide approximately $100 billion to the Department of Education (ED) to support educational needs.  Of this amount, $90 billion would support a “State Fiscal Stabilization Fund” which would provide grants to states to support funding for K-12 and public postsecondary institutions.  Of the state education fund, 30 percent would be allocated to public institutions of higher education.  The remaining $10 billion not allocated to the State Fiscal Stabilization Fund would provide $1.7 billion in support for Minority-Serving Institutions, $7 billion for private non-profit institutions of higher education, and $1.4 billion for exclusively online institutions and institutions that would receive less than $1 million in an initial allocation.    

Funding would support numerous efforts including training and professional development for higher education faculty and staff to support distance education; general expenditures for institutions of higher education for expenses associated with a disruption in services or operations related to coronavirus, including defraying expenses due to lost revenue, reimbursement for expenses already incurred, and payroll; and emergency financial aid to postsecondary students for housing, food, technology, health care, and child care.  While the HEROES Act again is unlikely to be enacted as passed, provisions in the bill could be included in a future package. 

Senate Examines Liability Issues of Reopening in Hearing   

Congressional discussions regarding reopening the economy have turned toward balancing liability issues as employers and communities begin to resume normal operations.  During a Senate Judiciary Committee May 12 hearing, entitled “Examining Liability During the COVID-19 Pandemic,” the Committee highlighted the lack of federal guidance towards the reopening process.  Witnesses, who included leaders in higher education, business, legal, and labor communities, disagreed on whether further tailored protections are needed for businesses acting in good faith or whether the law already provides adequate protections from liability.  However, the panelists seemed to form a consensus that detailed guidance for re-opening from the federal government would allow employers a path forward in a way that adequately maintains a safe environment for workers and protects them from unnecessary lawsuits.  

Leroy Tyner, General Counsel at Texas Christian University (TCU), discussed universities’ concerns that not having clear guidance gives no clear direction as to where the “liability cliff,” or threshold for risk of facing COVID-19 related lawsuits, exists and how to avoid it.  Tyner also discussed what is at stake in this discussion, as universities play significant roles as local and regional economic engines, and that many universities may face a possible 15% projected drop in enrollment or a looming closure of campuses.  All of these factors affect considerations to reopen for the fall.  While not seeking protection from negligence, Tyner asked the Committee for targeted and temporary protections for higher education as they face many frontiers in the reopening process. 

Committee members and panelists ultimately concluded that confidence and predictability in the legal system would more quickly lead to economic recovery, though disagreed on an approach.  Congress has not yet proposed legislation that would address this issue. Senator Richard Durbin (D-IL) reminded the Committee that, while he was skeptical that there would be a wave of COVID-19 related lawsuits, liability is considered a “red line issue” by Senate Majority Leader Mitch McConnell (R-KY) and consequently Congress would need to address this issue.  Chairman Lindsey Graham (R-SC) reported that Senator John Cornyn (R-TX) is working on legislation to be introduced in the near future. 

Legislative Bills of Note 

  • H.R. 6814 (Rep. Eshoo, D-CA) – Supporting Connectivity for Higher Education Students in Need Act.  The Supporting Connectivity for Higher Education Students in Need Act would provide $1 billion to institutions of higher education to support at-home internet connections and internet-enabled devices for students.  Funding would be prioritized for Minority-Serving Institutions and rural institutions.  Senator Klobuchar (D-MN) introduced the bill’s Senate companion.  Rep. Eshoo’s press release is available here.  

  • S.3779 (Senator Klobuchar (D-MN)/Senator Sasse (R-NE) - The Skills Renewal Act.  The Skills Renewal Act would create a fully refundable $4,000 skills training credit for newly unemployed workers to allow them to access training programs.  The credit may be used to offset the cost of any type of post-secondary training.  Senator Klobuchar’s press release is available here and Senator Sasse’s is available here.  

ADMINISTRATION AND AGENCY UPDATES AND NEWS

ED Releases Final Title IX Regulations 

On May 6, the U.S. Department of Education (ED) released a final rule under Title IX of the Education Amendments of 1972.  Title IX makes nondiscrimination on the basis of sex a condition for receiving federal financial assistance.  The rule defines how institutions of higher education and K-12 schools address and respond to incidents of sexual discrimination, including harassment.  The issuance of this final rule follows a process that began in 2018.  Additionally, these rules are likely to further complicate efforts to reauthorize the Higher Education Act.  An unofficial copy of the regulations and additional supporting materials are available here.  

Highlights of the regulations include: 

  • Recognition that sexual harassment, including sexual assault, is unlawful sex discrimination; 
  • Institutions must offer supportive measures to every alleged victim of sexual harassment, which are individualized services to restore or preserve equal access to education; 
  • Expansion of sexual harassment to include sexual assault, dating violence, domestic violence, or stalking (as those offenses are defined in the Clery Act and the Violence Against Women Act); 
  • Institutions must respond when: (1) the school has actual knowledge of sexual harassment; (2) that occurred within the school’s education program or activity; (3) against a person in the United States.  Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution; 
  • Allows an institution, in its discretion, to choose to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution; 
  • A requirement that schools investigate and adjudicate formal complaints of sexual harassment using a grievance process that incorporates due process principles; 
  • A grievance process must:
    • Use either the preponderance of the evidence standard or the clear and convincing evidence standard (and use the same standard for formal complaints against students as for formal complaints against employees); 
    • Hold a live hearing and allow cross-examination by party advisors (never by the parties personally); 
    • Offer either party, who do not have an advisor for the hearing, an institutionally provided advisor of the school’s choice to conduct cross-examination on behalf of that party at no cost; 
    • Offer both parties an equal opportunity to appeal; among other changes. 

The final rule is more than 2,000 pages in length and represents the culmination by the Department to significantly alter the administration of Title IX.  A press release accompanying the release of the final rule states, “The new Title IX regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students.”  The American Civil Liberties Union and several other organizations have already filed suit in court challenging the regulations. 

Administration Continues Efforts to Restrict International Students/Scholars 
On Friday, May 29, President Trump released a proclamation, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People's Republic of China (PRC).”  The proclamation will likely result in the suspension or limitation of F or J visas to study or conduct research of certain Chinese graduate students and researchers.  The proclamation notes that these restrictions would cover individuals with ties to an “entity in the PRC that implements or supports the PRC's ‘military-civil fusion strategy.’”  The proclamation notes that “the term "military-civil fusion strategy" means actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC's military capabilities.”   

Several Republican members of Congress have introduced the SECURE CAMPUS Act, which would seek to restrict Chinese nationals from receiving visas to study science and engineering fields in the United States.  Additionally, the Trump Administration is considering placing temporary restrictions on the Optional Practical Training (OPT) program as part of their economic stimulus efforts to prioritize the hiring and employment of U.S. workers.  More than 200,000 international students participate in the OPT program each year.  Potential restrictions include limiting OPT for students by country of origin, limiting fields of study, or limiting the duration a student could be on OPT.  An Executive Order announcing some form of these limitations is expected sometime in June.  Both the business and higher education community are actively advocating for both maintenance of the OPT program and for processes to improve the enrollment of international students in the fall.  Several Republican members of the U.S. House of Representatives are supportive of these programs and are asking federal agencies to continue to support these initiatives.  Additional efforts to restrict immigration are possible, given the upcoming November election. 

ED Clarifies CARES Act Reporting Requirements and Guidance for Non-Title IV Eligible Students
On May 6, the U.S. Department of Education (ED) released guidance on reporting requirements associated with the Higher Education Emergency Relief Fund (HEERF) provided to institutions of higher education in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.  Under this guidance, institutions must make certain information publicly available on their website in order to receive funding; this information includes the amount of the total amount of funds that the institution will receive or has received, the total number of students who have received an Emergency Financial Aid Grant to students, among other information.  On May 21, ED clarified that the institutional portion of an institution’s HEERF allocation can be used to support students not eligible for Title IV funding, though not in the form of direct emergency grants.  This restriction is due to the Personal Responsibility and Work Opportunity Reconciliation Act, which limits the availability of aid to non-citizens.  ED’s statement also notes “The Department continues to consider the issue of eligibility for HEERF emergency financial aid grants under the CARES Act and intends to take further action shortly.”  Additional information on the HEERF allocations, including the new statement Title IV eligibility, is viewable at the top of the HEERF website

CDC Releases Recommendations for Higher Education Operations during COVID-19 
The U.S. Centers for Disease Control and Prevention (CDC) released updated recommendations for institutions of higher education (IHEs) as they begin to plan for fall classes and potential reopening of campuses.  The guidance focuses on increasing available information for students, faculty, and staff; reducing virus spread through regular cleaning of facilities and practicing good hygiene; maintaining healthy operations via virtual opportunities and social distancing measures; and developing contingency plans for when someone gets sick.  The guidance emphasizes frequent cleaning of high-use areas and facilities, closing or restricting access to common areas and indoor spaces, promoting social distancing in class and extracurricular environments, and working in close coordination with state and local health officials.  CDC stated that they may update the guidance as needed to fill certain gaps, such as recommendations for testing of students after a positive COVID-19 diagnosis.  Additional CDC information for IHEs can be found here.  

National Science Foundation Holds Directorate for Education and Human Resources Advisory Committee Meeting 
The National Science Foundation (NSF) recently held a meeting of the Directorate for Education and Human Resources (EHR) advisory committee.  During the meeting, Dr. Marilyn Strutchens was introduced as the new chair of the EHR advisory committee.  Karen Marongelle, the Assistant Director of EHR, reported on EHR’s response to COVID-19.  Dr. Marongelle announced that EHR awarded 37 NSF Rapid proposals to fund research related to the impact of COVID-19 on education.  She also reported EHR was working in conjunction with the NSF Office of Public and Legislative Affairs to provide resources to parents for students struggling with educational challenges while they are home from school.  Dr. Robin Wright, Division Director of the Directorate of Undergraduate Education, presented the EHR report STEM Education of the Future to the advisory committee.  The report noted that STEM education should be student-centered, project-based, personalized, and built on the foundation of equity and inclusion.  The advisory committee accepted the report and Dr. Marongelle emphasized the importance of the report. 

Open Grant Competitions at ED and DOD 
FY 2021 IES NCER and NCSER Grant Competitions Announced 

The U.S. Department of Education‘s (ED) Institute of Education Sciences (IES) has announced its fiscal year (FY) 2021 competitions for education research and special education research.  The new funding notice explains that these awards will expand knowledge of “(1) developmental and school readiness outcomes for infants and toddlers with or at risk for a disability, (2) education outcomes for all learners from early childhood education through postsecondary and adult education, and (3) employment and wage outcomes when relevant (such as for those engaged in career and technical, postsecondary, or adult education).”  The awards will be administered through the Institute’s major grant-awarding centers, the National Center for Education Research (NCER) and the National Center for Special Education Research (NCSER). 

IES plans to host eight competitions in FY 2021 that address a range of relevant topic areas, including research related to STEM education and Career and Technical education, two topics of interest to policymakers, agency officials, and the Trump Administration.  NCER will administer four competitions pertaining to specific topic areas: Education Research, Education Research Training, Education Research and Development Centers, and Research Grants Focused on Systemic Replication in Education.  NCSER will also administer four competitions: Special Education Research, Research Training Programs in Special Education, Research Grants Focused on NAEP Process Data for Learners with Disabilities, and Research Grants Focused on Systemic Replication.  Details regarding specific topic areas for each competition can be found here.  

Applications for all competitions are due on August 20, 2020.  Project period and award size vary by competition and final fiscal year 2021 funding levels for the Department of Education, which have yet to be set by Congress.  The Requests for Applications for the competitions are available here.   

Fiscal Year 2020 Teacher Quality Partnerships Grant Program Solicitation Open 

The Department of Education (ED) Office of Elementary and Secondary Education announced their call for the fiscal year (FY) 2020 Teacher Quality Partnership (TQP) grants to support projects that prepare teachers through teacher residency programs in partnership with local education agencies (LEAs).  The goals of the TQP program are to improve student outcomes, enhance professional development for new teachers, improve teacher preparation, recruit highly qualified candidates to the teaching profession, and to hold institutions of higher education accountable for preparing teachers.  Applications that propose projects in Qualified Opportunity Zones and are from new potential grantees will be given competitive priority.  

Applicants are strongly encouraged to submit a notice of intent to apply by June 17, 2020.  Applications are due July 2, 2020.  ED expects to have $9 million available to make 10-15 awards under the TQP program and average award sizes will be between $500,000 and $1 million.  The estimated average size of awards is $750,000 for the first year of the project, with funding for years 2-5 subject to available funds.  This grant has a cost-sharing requirement of a 100 percent match from non-federal funds for each year of the project period.  Further details on the FY 2020 solicitation are available here and ED’s overview of the Teacher Quality Partnerships program is available here.  

DOD Announces Two STEM Education and Workforce Opportunities  

The Air Force Research Laboratory (AFRL) released a draft funding opportunity announcement (FOA) for “Future Scholars for Science, Technology, Engineering, and Mathematics (STEM) Workforce Development Programs” to improve and enrich the capacity of education systems to “effectively cultivate a diverse, agile, and world-class STEM workforce” to support AFRL’s mission.  AFRL intends to release a finalized FOA in the third quarter of fiscal year (FY) 2020.   Initial and Final Submission Deadline dates will be announced upon the official release of this FOA. 

AFRL programs are designed to address geographic disparities of underrepresented and underserved communities; increase awareness in priority areas such as artificial intelligence/machine learning (AI/ML), biotechnology, and cybersecurity; and build partnerships with industry to sustain STEM Workforce Development programs.  AFRL anticipates a total of $50 million in federal funding and intends to award multiple grants and cooperative agreements with a $25,000 minimum and a maximum of $5,000,000 per year for a five-year period.  Federally Funded Research & Development Centers (FFRDCs), defense laboratories, military universities, warfare centers, and foreign entities are not eligible to apply.  Additional information on the draft funding opportunity is available here.  

Additionally, the Office of Naval Research (ONR) released a funding opportunity announcement (FOA) for the Department of the Navy’s (DoN) Science, Technology, Engineering & Mathematics (STEM) Education and Workforce Program seeking a broad range of applications that improve, and tailor STEM education and experiences with Naval Science and Technology (S&T) workforce needs.  ONR desires project plans utilizing active learning approaches to both increase capacity and create impactful STEM educational experiences for students and workers.  Applicants are encouraged to consider under-represented and under-served populations, including women and minorities in project plans.  

White papers are required to be submitted by June 12, 2020 at 5:00 PM ET.  Full applications are by invitation only and will be due August 28, 2020 at 11:59 PM ET.  ONR intends to award a maximum of $250,000 per year for up to 3 years, with each year being funded incrementally dependent on applicant performance.  Individual awards will not exceed $750,000 over 3 years.  The funding opportunity is available to “all responsible sources from academia and non-profit organizations.”  Additional information on the opportunity is available here.  

FACTS AND FIGURES: Unemployment Rate for Bachelor’s Degree Holder Lower in 2018 vs 2010 

Source: U.S. Department of Commerce, Census Bureau, 2010 and 2018 American Community Survey (ACS) Public Use Microdata Sample (PUMS) data. See Digest of Education Statistics 2019, table 505.10

WHAT WE'RE READING: Academies Report Highlights Changing Expectations of Teacher Workforce 

“Yet it is worth noting that while the past 20–30 years has witnessed a proliferation of “alternative routes” (however defined—within or outside of institutions of higher education [IHEs]), the majority of prospective teachers continue to be prepared by traditional programs within IHEs.” 

Source: National Academies of Sciences, Engineering, and Medicine 2020. Changing Expectations for the K-12 Teacher Workforce: Policies, Preservice Education, Professional Development, and the Workplace. https://www.nationalacademies.org/news/2020/02/new-report-finds-k-12-teachers-face-new-expectations-and-more-demands-training-and-workforce-changes-could-help.  

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