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Higher Education Policy Newsletter

October 2, 2020 — Lewis-Burke Associates LLC

Recent higher education policy developments have been shaped by the upcoming November presidential election, presidential Executive Orders, and a Supreme Court vacancy.  President Trump released an Executive Order (EO), entitled “Executive Order on Combating Race and Sex Stereotyping,” with implications for federal agencies, grantees, and contractors.  The purpose of the September 22 executive action is to “combat offensive and anti-American race and sex stereotyping and scapegoating,” and “divisive concepts.”  The immediate implications for recipients of federal funding are unclear, but the Office of Management and Budget (OMB) has released further guidance for agencies.  While this is a political messaging tool for the President, there are numerous concerning provisions in the EO.

Federal agencies continue to propose and enact policies that impact higher education. The U.S. Department of Homeland Security (DHS) announced a proposed rule that would replace the current Duration of Status policies for F, J, and I student and exchange visitor visa holders with fixed time periods of admission.  The proposed fixed length of time would not exceed four years for many nonimmigrant visa holders and includes more limited restrictions for visa holders from countries considered a national security concern.  DHS has opened the proposed rule for public comment until October 26, 2020.  Additionally, the U.S. Department of the Treasury released their final rule on the endowment tax on certain private universities established by the Tax Cuts and Jobs Act of 2017.  While the final rule ignores many of the concerns of the higher education community and sets a troubling precedent, it does exclude earnings from renting housing to faculty, interest from student loans, and certain types of royalty income, as requested by the higher education community.

Congress passed and President Trump signed a Continuing Resolution (CR) to continue to fund the government at fiscal year (FY) 2020 levels until December 11.  While the U.S. Department of Education (ED) has not released official guidance on operations under the CR, it is expected that any new programs will be put on hold until final FY 2021 appropriations are finalized.  Outside of appropriations, it is highly unlikely that Congress passes any higher education-related legislation prior to the start of the 117th Congress in January 2021.  



Forecast of House Education Committee Leadership in the 117th Congress 

Senate Hearing Focuses on FAFSA 

House Education Committee Considers $3.5 billion Apprenticeship Bill 

Continued Congressional Interest in Collegiate Athletics  

Legislative Bills of Note


ED Releases Final Rules on Freedom of Speech and Faith-Based Organizations  

ED Proposes New Grant Priorities and Rescinds Old Guidance 

2020 UPDATE 
Second Trump Administration Education Goals

Joe Biden Announces Details of Student Loan Forgiveness Plan

Open Funding Opportunities

Higher Education Policy in a COVID World Snapshot

ED OIG Report on CARES Act

Forecast of House Education Committee Leadership in the 117th Congress 
Unlike the White House and Senate, control of the U.S. House of Representatives is not highly contested this election cycle; Democrats are expected to retain the majority, partly due to the 34-seat advantage they currently hold.  Current House Education and Labor Committee Chairman Bobby Scott (D-VA) and Ranking Member Virginia Foxx (R-NC) are expected to win reelection and continue their leadership positions on the committee.  In addition to continuing work on a reauthorization of the Higher Education Act (HEA), major priorities for the committee will likely include reauthorizing workforce bills such as the Workforce Innovation and Opportunity Act (WIOA) and the National Apprenticeship Act.  Notably, Higher Education and Workforce Investment Subcommittee Chairwoman Susan Davis (D-CA) is retiring.  Potential successors include Congressman Joe Courtney (D-CT), Congresswoman Marcia Fudge (D-OH), and Congresswoman Frederica Wilson (D-FL). 

Additional shake-up will come from the retirement of House Appropriations Committee Chairwoman Nita Lowey (D-NY).  Congresswomen Marcy Kaptur (D-OH), Debbie Wasserman-Schultz (D-FL), and Rosa DeLauro (D-CT) are among the top candidates to succeed her in the committee leadership role.  If Congresswoman DeLauro is selected to lead the committee, she will have to decide whether to also maintain her current role as Chairwoman of the Labor, Health and Human Services, Education, and Related Agencies (Labor-HHS-Ed) Appropriations Subcommittee.  If she chooses to relinquish her subcommittee Chairwomanship role to focus on leading the full committee, potential successors to lead the education funding subcommittee include Congresswomen Lucille Roybal-Allard (D-CA) and Barbara Lee (D-CA).  On the Republican side, both full Committee Chairwoman Kay Granger (R-TX) and Labor-HHS-Ed Subcommittee Chairman Tom Cole (R-OK) are expected to continue their leadership roles next year. 

Senate Hearing Focuses on FAFSA 
In what was likely his last education hearing as Chairman of Committee on Health, Education, Labor and Pensions (HELP), Senator Lamar Alexander (R-TN), made one more push to update the Free Application for Federal Student Aid (FAFSA) form. During a hearing entitled, "Time to Finish Fixing the FAFSA” Chairman Alexander, other members of the HELP Committee, and witnesses talked about the need to make the FAFSA work better for low-income students, students dealing homelessness, and other situations where FAFSA complexity makes it difficult for students with need to access student aid.  Ranking Member Patty Murray (D-WA) noted how the pandemic is having a profound impact on the ability for students and parents to pay for college.  While the hearing focused on a bill from Chairman Alexander and Senator Doug Jones (S.2667 - FAFSA Simplification Act of 2019), members and witnesses spoke broadly on how interventions to simply the FAFSA have shown positive impacts on persistence and attainment.   

Witnesses also testified on the need to improve need analysis calculations; the importance of bolstering aid available to students; the value of simplifying Pell eligibility especially for those receiving means-tested benefits; and improvements to the verification process, among other fixes. Given that another Congress will likely end without a reauthorization of the Higher Education Act (HEA), it is unlikely that any FAFSA legislation will pass before the end of the year.  

House Education Committee Considers $3.5 billion Apprenticeship Bill 
On a strictly party-line vote, the House Committee on Education and Labor approved H.R. 8294, the National Apprenticeship Act of 2020.  The bill would codify and significantly increase funding for pre-apprenticeships, youth apprenticeships, and apprenticeships.  While apprenticeships and improving their utilization in postsecondary education enjoys support from both Democrats and Republicans, divisions over the Industry Recognized Apprenticeship Program (IRAP) prevented the bill from being supported by any of the Committee’s Republicans.  The National Apprenticeship Act of 2020 would support more than $3.5 billion in spending over five years to expand Registered Apprenticeships.  The bill would also seek to establish national frameworks to expand apprenticeships to new occupations and sectors.  Another provision in the bill would improve connections between the Department of Education and Department of Labor (DOL) through an interagency agreement.  The bill is unlikely to be voted on by the full House, given the lack of legislative days.  A DOL under a new Administration is unlikely to continue supporting IRAPs, which could remove an obstacle preventing an update to apprenticeship legislation. 

Continued Congressional Interest in Collegiate Athletics  
Following several other congressional committee hearings, the Senate Health, Education, Labor, and Pensions (HELP) Committee jumped into the college athlete compensation conversation this past month by hosting their own hearing on the issue.  Senators who spoke at the hearing were fairly critical of the current collegiate athletics system, touching on issues of racial inequities, coaches’ salaries, employee versus student status, and the potential harm to student athletes from concussions and COVID-19.  

Retiring Committee Chairman Lamar Alexander (R-TN) noted he hoped his education-focused committee could aid in the development of name, image, and likeness (NIL) federal policies and remarked he favors limited federal action “to authorize an independent entity, safe from litigation, to write rules governing payments” for NIL.  Chairman Alexander also promoted the idea of having NIL endorsement earnings benefit all student athletes at an institution to alleviate potential donor abuses and ensure equity.

Ranking Member Patty Murray (D-WA) echoed her support of NIL compensation but focused her comments on the economic and racial inequities present in collegiate athletics programs as well as health and safety protections for student athletes.  Other Democratic Senators, including Tim Kaine (D-VA), Jacky Rosen (D-NV) and Maggie Hassan (D-NH), raised questions regarding COVID health impacts among athletes, decisions regarding fall sports during the pandemic, and COVID testing and tracking.  Senators Richard Burr (R-NC) and Rand Paul (R-KY) raised concerns and risks of moving toward the federalization of NIL and collegiate athletics.   

Over in the House this month, Reps. Anthony Gonzalez (R-OH) and Emanuel Cleaver (D-MO) led the introduction of the bipartisan Student Athlete Level Playing Field Act, which would set up a federal framework for student athletes to be compensated for NIL, preempting state laws.  The legislation would set up the Federal Trade Commission as an enforcement entity and rely on a commission of stakeholders to guide further congressional actions.  Other Members of both the House and Senate also have NIL-related legislation under development, for possible introduction in the coming weeks and months.  

Legislative Bills of Note

  • H.R. 8295 (Rep. DeLauro, D-CT) – Educating for Democracy Act.  This legislation would provide grants to expand access to history and civics education and require the National Assessments of Education Progress (NAEPS) be administered every two years to certain grade levels.  Representative DeLauro’s press release on the legislation is available here.  
  • H.R. 8294 (Rep. Davis, D-CA) – The National Apprenticeship Act of 2020.  This legislation would reauthorize the National Apprenticeship Act and would create almost a million new apprenticeship positions over the next five years.  This legislation has been passed by the House Education and Labor Committee.  Representative Davis’ press release on the legislation is available here.  
  • H.R. 2693 (Rep. Fudge, D-OH) – Strength in Diversity Act of 2020.  This legislation would create a grant program to support diversity in schools through community programs.  It was passed by the House and has been received by the Senate.  Representative Fudge’s press release on the legislation is available here.  
  • S. Res. 711 (Senator Schumer, D-NY).  This resolution calls on the President to cancel up to $50,000 in federal student loan debt through executive action.  Senator Schumer’s press release on the resolution is available here.  

ED Releases Final Rules on Freedom of Speech and Faith-Based Organizations  
The U.S. Department of Education (ED) announced its final rule addressing institutional compliance with the First Amendment, public institution relationships with faith-based student organizations, and religious institutions’ rules regarding implementation of Title IX.  The rule is in part a follow-up to previous Executive Orders issued by President Trump, in particular the 2019 "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities" that stressed institutional compliance with the First Amendment as a material condition for receiving research and education grants.  While the Executive Order calls for most federal research agencies to take steps to ensure First Amendment compliance by institutional grantees, this rule only applies as a condition for ED program grants and does not apply to student aid funding.

The final rule, which goes into effect on November 23, 2020, will: 

  • Require public institutions to comply with the First Amendment, as a condition of receiving ED grants or subgrants;  
  • Require private institutions to comply with their stated policies related to freedom of speech and academic freedom, as a condition of receiving ED grants or subgrants; 
  • Disallow public institutions to deny faith-based student organization “the rights, benefits, or privileges that are otherwise afforded to non-faith-based student organizations,” as a condition of receiving ED grants or subgrants; 
  • Define a list of criteria for educational institutions to demonstrate religious organization control and set exemptions to the application and implementation of Title IX for those institutions; and 
  • Amend regulations in the Department’s minority-serving institution programs by narrowing the scope of current limitations on allowable activities related to religious worship or theological studies, to align with the First Amendment. 
For both public and private institutions, ED will determine that an institution has not complied with the First Amendment only “if there is a final, non-default judgment by a State or Federal court” that determines an institution or an employee, acting in an official capacity, either violated the First Amendment, in public university cases, or, for private institutions, there was a violation of a stated institutional policy related to freedom of speech or academic freedom.  Institutions would be required to report a judgment to ED no more than 45 calendar days after the ruling is entered.

In terms of ensuring religious freedoms for institutions and individuals, ED has subsequently released additional guidance addressing compliance and outlining a process to file related complaints.  A fact sheet on the final rule is available here.  

ED Proposes New Grant Priorities and Rescinds Old Guidance 
In September, the U.S. Department of Education (ED) proposed a new priority and definitions for discretionary grant programs.  The notice states, “The Secretary of Education proposes to establish a priority and definitions for discretionary grant programs that would promote the use of the Department of Education's discretionary grants funds to support remote learning.”  ED notes the increased importance of remote learning given COVD-19.  ED’s proposal would allow it to include remote learning as a priority in future grant competitions.  The notice proposes the following definition for remote learning: 

Remote learning means programming where at least part of the learning occurs away from the physical building in a manner that addresses a learner's educational needs. Remote learning may include online, hybrid/blended learning, or non-technology-based learning (e.g., lab kits, project supplies, paper packets).   

In continuing to execute a presidential Executive Order on agency guidance, ED has published a notice listing guidance documents the Department has rescinded as outdated.  Some of the guidance documents are from 1994 and deal with matters like announcement of videoconferences and “information available to the financial aid community on our World Wide Web pages.”   

Open Funding Opportunities 

ED Grant Competition for Open Textbooks Pilot Program 

The U.S. Department of Education (ED) issued a Notice Inviting Applications (NIA) for awards from the (FY) 2020 for the Open Textbooks Pilot program to support projects at institutions of higher education (IHEs) that create new open textbooks, particularly for use in courses with high enrollments.  Applicants must propose projects that involve a consortia of institutions, instructors, and subject matter experts, including no less than three IHEs.  Other stakeholders that must be included include relevant employers and workforce stakeholders.  Additionally, “an applicant must identify the gaps in the open textbook marketplace in courses that are part of a degree-granting program that it seeks to address and propose how to close such gaps.”  

ED anticipates making $6 million available for 3-12 awards between $500,000-$2 million each.  The estimated average size of awards is $1 million.  Cost sharing is not required for this grant. The NIA was published by the Federal Register on September 15, 2020 and the deadline for applications will be on November 16, 2020.  Final priorities, requirements, and definitions for the Fund for the Improvement of Postsecondary Education--Open Textbooks Pilot Program can be found here.  

NSF Releases Research on Emerging Technologies for Teaching and Learning (RETTL) Program Solicitation 
The National Science Foundation (NSF) has released a new solicitation, the Research on Emerging Technologies for Teaching and Learning (RETTL) program.  RETTL seeks to support research on advanced technologies for teaching and learning to educate a new generation of students, teachers, educators, and mentors to excel in highly technological and collaborative environments of the future.  RETTL replaces the longstanding NSF Cyberlearning program, aims to support research related to a broad array of emerging technologies, and includes a new focus on supporting research on emerging technologies for teaching.  Proposals should be informed by the convergence of multiple disciplines such as “learning sciences; discipline-based education research; computer and information science and engineering; design; and cognitive, behavioral and social sciences.”  Interdisciplinary areas of research could include “affective computing, human-centered AI, social/educational robotics, intelligent conversational agents/assistants, and virtual/embodied agents.”  Projects must have research objectives that integrate teaching and/or learning and technology innovations. 

Projects that broaden participation and promote diversity and inclusion in STEM education careers and Minority Serving Institutions (MSIs) are strongly encouraged.  Applications are due on January 25, 2021.  The estimated total program funding is $19 million. An estimated 20 projects will be funded up to a total of $850,000 per project for three-years.  Individuals may participate as PI, co-PI, or Senior Personnel in only one proposal in response to this solicitation.  The full funding opportunity can be found here and an overview of the RETTL program can be found here

Second Trump Administration Education Goals
President Donald Trump is likely to continue many of the education policy changes from the last three years if successful in securing a second term. The Administration has released their “Trump’s 2nd Term Agenda.” Included on the agenda are “Provide School Choice to Every Child in America” and “Teach American Exceptionalism.” Higher education proposals that could be pursued in a second term include expanding Pell Grant eligibility to include short-term programs, reforming the Federal Work Study (FWS) program to increase support and opportunities for low-income students. 

Joe Biden Announces Details of Student Loan Forgiveness Plan 
Democratic Presidential Nominee Joe Biden recently announced details regarding his student loan forgiveness plan that would create a new, simplified, version of the Public Service Loan Forgiveness (PSLF) program, offering automatic enrollment for public servants and $10,000 of student debt relief per year of national service. He also would not require those making less than $25,000 a year to make payments on student loans and everyone else would pay 5% of their discretionary income.  After 20 years, those who made all of their payments would have their student loans forgiven. These loan forgiveness efforts build on Vice President Biden’s previous college affordability proposals, such as making two years of community college free for all Americans, including part-time students and DACA recipients, and public colleges and universities free for Americans making less than $125,000 a year.  Details on Vice President Biden’s education plan are available here

FACTS AND FIGURES: Higher Education Policy in a COVID World Snapshot


WHAT WE'RE READING: U.S. Department of Education Office of Inspector General Challenges for Consideration in Implementing and Overseeing the CARES Act 
“Due to the various CARES Act programs, with different purposes, allowable uses of funds, and grant recipients, it will be vital for the Department to provide guidance, training, technical assistance, and outreach. As outlined in our Recovery Act lessons learned report, we found that the Department’s timely guidance, training, technical assistance, and outreach were valuable to the implementation and oversight of Recovery Act funds.” 

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