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Higher Education Policy Newsletter

August 5, 2020 — Lewis-Burke Associates LLC

The beginning of August is traditionally a quiet period in Congress, but pandemic relief efforts in an election year have created an uncertain outlook for the next COVID relief bill and delayed Congress’s August recess.  In the U.S. House of Representatives, Democrats, using their majority, passed a $3 trillion stimulus package, their negotiation marker with Senate Republicans and the White House.  That bill included a new round of education emergency funds but has been rejected by Senate Republicans and the Administration.  A proposed fiscal year (FY) 2021 spending bill to support education spending, detailed further below, has also passed the House.  The Republican controlled U.S. Senate has not moved forward on its annual spending bills but did roll out a $1 trillion COVID stimulus proposal.  The package, which included new higher education stabilization funding, faced a rocky reception even among Republican Senators due to concerns over costs and policies.  The difficult negotiations for the next stimulus are now being held between House and Senate Democratic leaders, a few Trump Administration officials, and Senate Majority Leader Mitch McConnell (R-KY).  Disagreements over education funding, support for state and local governments, and liability protections, are among the issues preventing a final agreement.

The outlook is better for the annual National Defense Authorization Act (NDAA), which has advanced in both chambers and is now under bicameral conference negotiation.  The House NDAA bill included a broad scope of education policy proposals, such as a provision aimed at ensuring international students will be able to remain in their educational program and retain their visas if a school moves instruction online, a proposal offering student loan modifications and private student loan forgiveness, and a provision that would add requirements to institutional agreements for institutions with Confucius Institutes.

The Trump Administration has continued a pursuit of restrictive immigration policies and rumors of additional immigration changes still loom.  After initial success in a federal lawsuit against the Department of Homeland Security, students and institutions were relieved this past month to get assurance that current international students would not face deportation if an institution moved fully online during the fall term.  Unfortunately, the Trump Administration then released clarification that new international students would not be allowed to study in the U.S. for an education program that has moved instruction fully online due to the pandemic. 


House Passes FY 2021 Funding Bill for Department of Education

Senate Republicans Release New Stimulus Proposal with Higher Education Relief

Congress Looks at COVID Impact on the Future of Higher Ed

Senate Judiciary Committee Holds Hearing on the Integrity of College Athletics

Legislative Bills of Note

White House Hispanic Prosperity Initiative

DHS Announces Changes to DACA Policy and International Student Visas

ED Funding Opportunities

2020 UPDATE 
Biden-Sanders Unity Task Force Recommendations

Higher Education Advocates Call for Doubling the Pell Grant

Zip Codes and Equity Gaps

House Passes FY 2021 Funding Bill for Department of Education
On July 31, the U.S. House of Representatives passed a package of fiscal year (FY) 2021 funding bills, including the Labor, Health and Human Services, and Education (Labor-HHS-ED) appropriations bill.  The committee report accompanying the Labor-HHS-ED bill is available here

This action followed the Labor-HHS-ED Subcommittee’s advancement of the bill on July 7 and the full Appropriations Committee’s advancement on July 13.  The Senate has not yet started consideration of FY 2021 appropriations bills.  Senate Republicans are likely to be opposed to the House plan of emergency funding in their FY 2021 spending bill, setting up a difficult negotiation process.  Regardless of any near-term Senate action, Congress is likely to pass a temporary stop-gap funding measure, known as a continuing resolution, to fund all federal agencies past the November election as legislative time and bipartisanship cooperation, will quickly run out as the end of the fiscal year approaches. 
The Department of Education (ED) would receive more than $73.4 billion in appropriations in the House bill, which is almost $7 billion more than proposed in the President’s budget request and more than $700 million more than in FY 2020.  For Pell Grants, the bill would provide $6,495 for the maximum individual Pell Grant award for the 2021-2022 school year, a $150 increase over the current maximum award level.  The bill would also provide small increases for the Supplemental Education Opportunity Grants (SEOG) program and Federal Work-Study (FWS) program, which would be provided $880 million and of $1.2 billion, respectively. Similarly, the TRIO Programs would be provided a modest increase of $10 million over current levels, up to $1.1 billion.  The Committee would direct ED to provide inflationary increases for current grantees and to increase the number and size of new awards in the Talent Search and Educational Opportunity Centers grant competitions. 
The bill proposes increasing funding for the Title VI International Education and Foreign Language Studies programs, including a $4 million increase, totaling $80 million for those programs.  The bill would also increase funding by $1 million for the Graduate Assistance in Areas of National Need (GAANN) program, for a level of $24 million, a rejection of the President’s proposal to eliminate the program.  The Committee would direct the Secretary of Education to consider the inclusion of mental health services as an area of need in the next GAANN grant competition.  The bill would also increase funding for the Child Care Access Means Parents in School (CCAMPIS) program to $55 million, an increase of $2 million above the FY 2020 enacted level. 
Also, the Committee would increase funding for the Institute of Education Sciences (IES), the Department’s education research arm, providing $630 million for the Institute, a $7 million increase above the FY 2020 enacted levels.  The Committee report rejects the Administration’s recommendation to eliminate funding for the IES Regional Educational Laboratories (RELs). 
In addition to providing proposed funding, the bill includes language that would direct ED to carry-out or restrict various policies.  Some of these mandates include directing the Department to work with institutions on improving the reporting process around Section 117 foreign gift reporting.  Of note, the bill would prevent funding for enacting or enforcing ED’s recent final rule related to Title IX compliance related to sexual harassment. 
New and expanded initiatives supported by the Committee include bill language that removes a prohibition preventing students who are incarcerated from receiving Pell Grants, and the report reiterates support for ED’s Second Chance Pell Experimental Sites initiative.  ED would also be directed to report on the number of students who could benefit from using their remaining Pell eligibility to pursue post-baccalaureate studies.  Funding would also be provided for the Temporary Extended Public Service Loan Forgiveness (TEPSLF) program, and report language notes support for the “recent announcement to consolidate the PSLF and TEPLSF applications and encourages further actions that help borrowers navigate the program without unnecessary bureaucratic burden.”  
Though not funded via the Labor-HHS-ED appropriations bill, the House-passed appropriations package also included funding for the National Science Foundation (NSF).  Of interest to education researchers, the NSF Education and Human Resources Directorate (EHR) would be supported at $970 million, $30.0 million or 3.2 percent above the FY 2020 level and $39 million above the President’s FY 2021 budget request.  Lewis-Burke's complete analysis of the Labor-HHS-Ed appropriations bill is available here
Senate Republicans Release New Stimulus Proposal with Higher Education Relief
Senate Republicans unveiled their $1 trillion plan for the next coronavirus aid package, known as the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act on July 27.  For higher education, the Senate bill would include additional funding for higher education through the Higher Education Emergency Relief Fund (HEERF), established by the CARES Act, as well as new liability protections and tax provisions of interest to institutions of higher education.  The bill would also incorporate student loan repayment modification priorities of Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) and new student aid regulatory flexibilities.
Of the $105 billion provided for the Department of Education (ED) for education stabilization in the Senate bill, the bill would fund $29 billion for higher education through ED’s HEERF mechanism.  This differs from the House’s HEROES Act, which would provide $27 billion for public higher education via a state government fiscal stabilization fund and provide an additional $10 billion for private nonprofit institutions, Minority-Serving Institutions, and online institutions.  In the HEALS Act, similar to the CARES Act, determinations of funding allocations through HEERF would be based largely on number of full-time equivalent Pell Grant recipients enrolled at each institution.  For a majority of institutions, funds from HEERF may be used for expenses related to COVID-19 and to provide emergency financial aid grants to students, including those studying completely online.  Unlike the CARES Act, there is no requirement that 50 percent of the HEERF allocation be used for direct student aid purposes in HEALS. 
Examples of eligible expenses related to COVID-19 and broadened as compared to CARES Act include lost revenue, reimbursement for expenses already incurred, technology costs associated with the transition to distance learning, faculty/staff trainings, and payroll.  Within HEERF, $2.9 billion would be set aside for Minority-Serving Institutions and Historically Black Colleges and Universities, and five percent of HEERF funds would be set aside for institutions of greatest need, as designated by the Secretary of Education.  Importantly, the Senate bill would limit the allocations of institutions that paid the endowment tax in 2019 and only allow those institutions to use HEERF money for student aid. 
The Senate bill would also provide $5 billion for the Governor’s Emergency Education Relief Fund, which allows Governors to dedicate funds to education institutions based on the needs of their state, including institutions of higher education and K-12 schools.  The bill also includes a maintenance of effort provision.
Higher Education-related regulatory provisions of interest in the bill include:

  • Prohibiting funds granted through HEERF to be used to pay for contractors engaging in pre-recruitment activities, endowments, or capital outlays for facilities used for athletics, sectarian instruction, or religious worship; 
  • Requiring institutions receiving funds to submit a report that includes details on the use of funds to the Secretary of Education within six months of receipt of funds; 
  • Consolidating federal student loan repayment plans into two options, a standard 10 year repayment plan and an income-based repayment plan, where borrowers would have to pay either 10 percent of their discretionary income or zero if earning less than 150% of the poverty level, combined with loan forgiveness after 20 or 25 years; 
  • Extending existing CARES Act authorities and flexibilities for campus-based aid, including allowing for the reallocation of Supplemental Education Opportunity Grant or Federal Work Study funds through the end of the 2020-2021 award year or the end of the qualifying emergency; and
  • Adding additional information to the FAFSA form for applicants to report incidences of recent income loss and offering greater flexibilities for financial aid administrators to use professional judgment to determine need. 

Of interest to institutions of higher education and other employers, the Senate bill includes temporary liability protections via the creation of a federal cause of action governing personal injury claims of coronavirus exposure occurring between December 1, 2019 and the end of the coronavirus emergency declaration or October 1, 2024, whichever is later.  The language would set a floor of liability protection, preempting state laws while allowing for stronger state liability limitations and sets a one-year statute of limitations.  Entities must provide a reasonable effort to comply with standards and not engage in gross negligence or willful misconduct.  Lewis-Burke's full analysis of the HEALS Act is available here

Congress Looks at COVID Impact on the Future of Higher Ed
Continuing its focus on the impact of COVID-19, the House Education and Labor Committee held a hearing last month, “A Major Test: Examining the Impact of COVID-19 on the Future of Higher Education.”  While many congressional hearings have focused on the immediate impacts of the pandemic and oversight of relief efforts, this hearing sought to focus on these issues in addition to addressing what higher education might look like after the pandemic.  Members of Congress and witnesses spoke about the strain the public health emergency is having on institutions and students, and the exacerbation of existing inequities often experienced by students from low-income and minority communities.  Several members of Congress noted the increasing importance online education will play in the future and the need to increase aid for low-income students. 

Witnesses spoke about the issues created by the U.S. Department of Education’s (ED) CARES Act guidance, the importance of re-imagining higher education as a life-long learning model, and the importance of supporting institutions and efforts that serve low-income students.  In his testimony, Scott D. Pulsipher, President, Western Governors University noted, “the idea that a college degree prepares students for a 50-year career has long been outdated; instead, we must think of learning as a lifelong process that intersects with the workforce continually.”  While efforts to reauthorize the Higher Education Act (HEA) are likely done for 2020, many of the impacts COVID-19 is having on higher education could be addressed in 2021.

Senate Judiciary Committee Holds Hearing on the Integrity of College Athletics
The Senate Judiciary Committee recently held a hearing entitled “Protecting the Integrity of College Athletics.”  The hearing included two panels of witnesses, with the first focused on students being able to benefit from use of their name, image, and likeness (NIL) and the second focused on sports betting being introduced to college athletics.  During the first panel, Senators on both sides of the aisle expressed concern over both the NCAA and the Autonomous 5’s legislative proposals for NIL, stating both groups asked for too broad of an anti-trust exemption and provided too narrow of opportunities for student athletes.  Senators expressed concern specifically at the A5 proposal because of a provision that would not allow students to have NIL deals with companies that have a contract with the school or competitors of those companies.  Senators Booker (D-NJ) and Blumenthal (D-CT) announced that the NCAA needs to put forward proposals that are more inclusive of the rights of athletes to healthy living, medical coverage in and shortly after school, and the ability to finish their education after they are done playing sports.  The duo also announced that they are putting together their own proposed Student Athlete Bill of Rights, and Chairman Graham (R-SC) said that while he is not sure that they can pass a bill this Congress, he pledged to get to work on a bipartisan package by September 15.

During the second panel of the hearing, the two witnesses discussed the impact of legal sports betting on collegiate athletics.  Ms. Lyke, the Athletic Director at Pitt, expressed concern that college students are uniquely vulnerable to financial temptation and expressed concern that legal sports betting would undermine the integrity of collegiate sports, professionalize college sports, and increase pressure on student athletes.  Senator Graham pointed out the 2018 Supreme Court decision that legalized sports betting stated that the Congress could not force states to do something, but they could prohibit states from doing things, and he made a comment that he thinks they could fix the issue pretty easily.  Though legislation related to NIL or collegiate sports betting is unlikely to pass before the end of the 116th Congress, these issues are likely to remain pertinent and are expected to be considered after the convening of the 117th Congress in January 2021. 
Legislative Bills of Note

  • H.R. 7511 (Rep. Craig, D-MN) – Supporting Apprenticeship Colleges Act of 2020.  This legislation would support apprenticeship colleges by providing grants to expand outreach, academic advising, and student support.  Representative Craig’s press release is available here.   
  • H.R. 7497 (Rep. Stefanik, R-NY) – Success for Rural Students and Communities Act.  This legislation would authorize demonstration grants to support activities that increase post-secondary enrollment and completion rates for rural students, enhance credential attainment for non-traditional students, strengthen post-secondary programs in locally relevant fields, and generate local employment opportunities through regional development strategies.  Representative Stefanik’s press release is available here.
  • H.R. 7706 (Rep. Krishnamoorthi, D-IL) - National Emergency Student Vote Act.  This legislation would help students vote during the COVID-19 pandemic by helping students register to vote, request mail-in ballots, and reminding them to vote by mail.  Senator Bennet (D-CO) introduced the Senate companion bill.  Representative Krishnamoorthi’s press release is available here.
  • S. 4247 (Senator Alexander, R-TN) – Student Loan Repayment and FAFSA Simplification Act.  This legislation would create two options for federal student loan repayment (instead of the current nine) and would simplify the FAFSA by reducing the number of questions on the form and creating a new eligibility formula for Pell Grants, among other items.  The section by section summary of the bill is available here.

White House Hispanic Prosperity Initiative
Last month, the President Trump issued “Executive Order on the White House Hispanic Prosperity Initiative.”  The order establishes the “White House Hispanic Prosperity Initiative and Interagency Working Group” and the “President’s Advisory Commission on Hispanic Prosperity.”  A fact sheet accompanying the Executive Order notes, “the Order will improve access to educational, training, and economic opportunities for Hispanic American students by promoting… personalized learning, civics education, and pathways to in-demand jobs.  This action further demonstrates the President’s support of school choice, apprenticeships and work-based learning initiatives, Hispanic Serving Institutions (HSIs), as well as investment in economically distressed communities…” The executive action is part of a larger political overture from the Administration to minority communities.  U.S Secretary of Education Betsy DeVos noted in a press release in response to the Executive Order that the U.S. Department of Education is working to increase new career pathways including apprenticeships and earn-and-learn opportunities and expanding support for Hispanic Serving Institutions.

DHS Announces Changes to DACA Policy and International Student Visas
Acting Secretary of Homeland Security Chad Wolf announced, through an official memorandum, that the Department of Homeland Security (DHS) is making changes to the Deferred Action for Childhood Arrivals (DACA) program in light of the Supreme Court’s recent decision to uphold the program due to DHS’ lack of consideration for the adverse impact rescission of the program would have on DACA recipients.  In orderto facilitate thorough consideration of how to address DACA in light of the Supreme Court’s decision” DHS will be making the following changes to the DACA program:

  • DHS will reject all initial applications for DACA status;
  • DHS will limit renewal of DACA status to one year; and
  • DHS will reject new and pending requests for advance parole except for in exceptional circumstances.

Acting Secretary Wolf indicated in the memorandum that these changes will remain in effect while he gives “careful consideration to whether the DACA policy should be maintained, rescinded, or modified.”  The memorandum does not indicate how long the Acting Secretary’s period of consideration of DACA will be.
In addition to the changes to the DACA program, DHS recently announced through the U.S. Immigration and Customs Enforcement Agency (ICE) that new international students would not be allowed entry into the United States if they are enrolled in post-secondary coursework that is fully online.  The new guidance states that students enrolled in a hybrid course load, with some classes online and some in-person, would be allowed to enter the United States, and students will not be penalized if they enroll in in-person classes that are forced to go remote mid-semester due to COVID-19.  This policy is reverses earlier ICE guidance, which stated all international students, including those already in the United States, would not be permitted to enroll in fully online coursework and remain in the United States.  Additional information on the new guidance is available here.  

ED Funding Opportunities
Competition to Advance Technology Education in Rural High Schools
ED announced a challenge to advance high-quality technology instruction in rural communities.  The Rural Tech Project, with a total cash prize of $600,000, invites high schools and local educational agencies (LEAs) to develop competency-based distance learning programs that enable students to master skills at their own pace, with the goal of preparing them for the in-demand, well-paying jobs of today and tomorrow. 

IES Posts Additional FY 2020 Research Funding Webinars
The Institute of Education Sciences (IES) posted a series of on-demand webinars for those interested in Fiscal Year 2020 funding opportunities and learning more about IES.  These pre-recorded webinars are hosted by the National Center for Education Research and the National Center for Special Education Research.  You can access them on the IES Webinar Series website.

IES Posts RFI for 2022 Regional Educational Laboratory (REL) Competition
Matthew Soldner, Commissioner, National Center for Education Evaluation (NEE) and Regional Assistance, writes about the upcoming REL competition in a NCEE blog post.  RELs work in partnership with school districts, state departments of education, and other educational stakeholders to use data and research to improve academic outcomes for students.  The FY 2022 competition will support nine REL centers.

FY 2020 FIPSE Competitions
ED is likely to release the following Fund for the Improvement of Postsecondary Education (FIPSE) competitions, which were supported in the FY 2020 appropriations process:

  • Open Textbooks Pilot: supports projects at institutions of higher education that create new open textbooks or expand their use of open textbooks while maintaining or improving instruction and student learning outcomes.
  • Centers of Excellence for Veteran Student Success: encourages model programs to support veteran student success in postsecondary education by coordinating services to address the academic, financial, physical, and social needs of veteran students.
Biden-Sanders Unity Task Force Recommendations

Former Vice President Joe Biden alongside Senator Bernie Sanders (D-VT) have released their “Unity Plan” outlining policy proposals for a potential Biden Administration.  Issues addressed include student debt, making public colleges tuition-free for families making under $125,000 per year, as well as making community colleges tuition-free for “all students.”  Other priorities include a call for doubling the size of Pell Grant awards, coupled with automatic increases based on inflation, and modifying student loan repayment programs to expand forgiveness.  The plan highlights increased student needs for wraparound services and supports, such as childcare.  Additionally, the plan calls for the creation of a Title I program for the post-secondary sector, similar to the Title I program for K-12 schools, which would provide funding based on the proportion of low-income students institutions enroll and graduate. 

Other recommendations include addressing working conditions for adjuncts, graduate employees, and full-time lecturers.  The plan suggests increased scrutiny of for-profit institutions and calls for restoring Obama-era Title IX guidance.  The full “Biden-Sanders Unity Task Force Recommendations” paper can be found here.  

FACTS AND FIGURES: Higher Education Advocates Call for Doubling the Pell Grant


WHAT WE'RE READING: Zip Codes and Equity Gaps
The Federal Reserve Bank of New York released the series “Introduction to Heterogeneity Series III: Credit Market Outcomes” that took an in depth look of racial differences in multiple facets of education.  With data from several research centers and the U.S. Census Bureau, the Federal Reserve analyzed the trend of student loans and its effects in areas of different demographic areas.  Researchers found that people who live in predominately Black or Hispanic demographic ZIP code areas are less likely to attend college and more likely to take out student loans.  Those living in majority black ZIP code areas “were 9 percent more likely to have a student loan by age 30 than the other groups” with similar data begin found with those in majority Hispanic areas.  Unlike their white counterparts, both groups are found to have continuous student debt until the age of 30.  The series demonstrated that students eligible for financial aid were more likely to acquire credit card debt, making that debt in lieu of student loan debt.  Read more here.
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