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President to President

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President to President
Molly Corbett Broad's weekly email newsletter to higher education leaders.

President to President, February 20-24, 2012

Vol. 13, No. 7

  • House to Vote Next Week on Repealing State Authorization, Credit Hour Regulations
  • Supreme Court Will Hear University of Texas Affirmative Action Case
  • Notice of Proposed Change to ACE Bylaws
  • Allegheny College Honors David Brooks, Mark Shields With Inaugural Prize for Civility in Public Life

I hope you have had time to review my Wednesday email about the scheduled House vote on the bill (H.R. 2117) to repeal the Education Department's new regulations on state authorization and the definition of a credit hour.

H.R. 2117, approved by the House Committee on Education and the Workforce last summer, is scheduled for a vote by the full House next week. While we are not certain of the exact timing yet, the vote likely will not be held before Wednesday, so there is still time to contact your representative to discuss the importance of supporting the measure.

Just to recap, the bill would repeal the so-called state authorization regulation which significantly expands and complicates existing federal requirements for an institution to legally operate within a state. The regulation forces institutions to meet any state requirements necessary to offer distance education in the state where the student is located while receiving instruction. This costly regulation threatens to upset recognition and complaint resolution procedures that have functioned effectively for decades and could lead to greater state authority over private colleges and universities. In addition, H.R. 2117 would repeal the new federal definition of a credit hour and ban the education secretary from establishing such a rule in the future. Establishing such a definition opens the door to federal interference in core academic decisions that must be left to individual institutions.

For more details, please see the letter we are sending to House members Monday asking them to support the bill. You may also want to consult this July 2011 document we compiled summarizing the problems with these two regulations.

We will be following this vote closely in the coming days, and I will have a full report on the outcome next Friday.

The U.S. Supreme Court announced this week it will hear the case Fisher v. University of Texas, which deals with the consideration of race and ethnicity in admissions at the University of Texas at Austin (UT).

The case is on appeal from the Fifth U.S. Circuit Court of Appeals, which upheld a 2009 lower court ruling that UT did not infringe on the civil rights of two white students who were refused admission to that year's freshman class. (See ACE's amicus brief to the Fifth Circuit in support of UT.) At issue is whether the university's admissions process violates the Equal Protection Clause of the 14th Amendment of the Constitution, because in some cases admissions officers take race and ethnicity into consideration in making their decisions. The plaintiffs argue the admissions policies of the university, as applied, "discriminate…on the basis of their race in violation of their right to equal protection of the laws."

Both lower court opinions noted that UT's plan closely follows the admissions process approved by the Supreme Court in 2003 in the University of Michigan affirmative action case, Grutter v. Bollinger. As you'll remember, the Grutter decision upheld the policy that an individualized, holistic review of each candidate for admissions was appropriate, even if it included race, to achieve the compelling state interest of increasing diversity in the student body. Any review that incorporates race must do so on an individualized basis, without applying a point value or adhering to any sort of quota.

The guidance in the Supreme Court's Michigan decisions (Grutter, along with Gratz v. Bolliger) has worked extremely well for most institutions over the past decade, and we do not want to see it undermined. It has expanded the idea of affirmative action—originally justified as compensation for the legacy of racial discrimination—to support the value of diversity to an entire campus as well as society in general. It is now commonly held that a diverse work force is vital to the nation's global competitiveness, and graduates of our institutions need to be prepared to operate in this climate. Dismantling the Grutter decision would be a significant step back for campuses, students and the country as a whole.

In 2002, ACE sponsored an amicus brief to the Supreme Court in the Michigan cases, which was submitted on behalf of 53 other higher education organizations. I expect we will seek to do the same for Fisher v. University of Texas.

The Supreme Court is scheduled to hear the case this fall.

Eduardo J. Padrón, chair of the ACE Board of Directors, has issued a memo detailing a proposed modification to the ACE bylaws that would expand eligibility for membership in the Council.

It is proposed that the bylaws be changed so degree-granting institutions will be eligible for membership if accredited by an agency recognized by the Council for Higher Education Accreditation (CHEA) or by an accreditor recognized by the Department of Education and approved by ACE's president and the Membership Committee of the board.

In addition, a technical correction in Article IV, Section 1 changing "National Association of State Universities and Land-Grant Colleges" to the current name, Association of Public and Land-grant Universities, will be made.

The amendments will be voted on by the ACE Board of Directors at its March 10 meeting.

If you have any questions concerning the proposed amendments, please contact Ada Meloy, general counsel, at or Joe Syrowik, director of membership, at

Lastly this week, I would like to recognize a significant new honor being given by Allegheny College (PA): the Prize for Civility in Public Life.

Allegheny President James H. Mullen Jr. awarded the inaugural prize to David Brooks and Mark Shields at a ceremony Tuesday at the National Press Club in Washington, DC. Allegheny College will honor two winners each year, one from each side of the ideological spectrum, who show noteworthy civility while continuing to fight passionately for their beliefs. Brooks and Shields were honored for their work on "PBS NewsHour."

The values undergirding this award—the free, vigorous and respectful pursuit of ideas—align perfectly with those of American higher education. I extend sincere congratulations to David Brooks and Mark Shields on this honor and applaud Allegheny College for shining a spotlight on the need for civility in our public discourse.

Molly Corbett Broad
President of ACE