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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, July 9-13, 2012

Vol. 13, No. 23

  • ​Congress on Pre-Election Countdown
  • ED Weighs Next Steps After Gainful Employment Ruling
  • ACE Asks NLRB to Defer to Supreme Court Faculty Unionization Decision
  • Senators on Debit Card "Abuses"
  • Higher Education Groups Submit Comments to FCC on Universal Service Fund
  • IN BRIEF: ACE Partners With CUPA-HR on Senior Leadership Study

Congress returned from its July 4th break this week, leaving just four weeks before the usual month-long August recess. Although several big-ticket items that impact higher education are on the agenda for the remainder of this session—most notably, appropriations—not much of substance is expected to be accomplished until after the November election. The Republican-led House on Wednesday passed a measure to repeal health care reform, a bill that is now expected to die quietly in the Senate, as have previous House efforts to kill "Obamacare." The Democratic-led Senate, meanwhile, is debating whether to give businesses a tax cut if they expand their payrolls, and whether to extend some or all of former President George W. Bush's tax cuts—more measures not expected to go anywhere soon.

The day before the July 1 effective date of the Education Department's (ED) gainful employment rules, the U.S. District Court for the District of Columbia issued a decision that vacated most of the new rules and remanded them to ED for further action.

The gainful employment regulations, part of the series of rules ED released in 2010 on Title IV student financial aid program integrity, seek to ensure that those who enroll in some higher education programs will earn enough money to repay their student loans. In general, the rules apply to all programs at for-profit schools and to all non-degree programs at traditional colleges and universities.

The ruling handed down in the case The Association of Private Sector Colleges and Universities v. Duncan upheld ED's right to issue new regulations in this area, saying the agency had "set out to address a serious policy problem." However, the court determined that one of the three metrics ED was planning to use to evaluate career preparation programs, the requirement that at least 35 percent of a program's former students repay their federal student loans, was invalid because there was no "rational basis" for the regulation. As the three measures were meant to work hand-in-hand, the court also vacated the repayment rate and the debt-to-income gainful employment metrics.

Also gone—at least for now—are the requirements for gainful employment program reporting and for adding new programs, which went into effect on July 1, 2011. The court left in place the provisions that require institutions to disclose certain information on their web pages for each gainful employment program, including on-time completion rates and information about tuition and costs.

In a statement released last Friday, ED said it is reviewing its legal and policy options "to move forward in a way that best protects students and taxpayers while advancing our national goal of helping more Americans get the skills they need to compete in the global economy." The department said it is reviewing the court's decision in consultation with the Department of Justice and evaluating appropriate next steps. (Also see The New York Times editorial from yesterday, which urged ED to use its authority "to rein in unscrupulous, for-profit schools that bury students in debt.")

ACE submitted a brief July 6 to the National Labor Relations Board (NLRB), asking that the board adhere to U.S. Supreme Court and NLRB precedents that faculty members are managerial employees and thus ineligible for collective bargaining.

The brief was one of several filed in Point Park University v. Communications Workers of America, in which the private Pennsylvania university challenged a decision finding that its full-time faculty members are eligible to unionize.

Our brief supports Point Park's position that because its full-time faculty members are managers, they are not allowed to unionize under the 1980 Supreme Court ruling, NLRB v. Yeshiva University. That decision held that when private college faculty members play a substantial role in managing their institution—especially through control over the curriculum and course selection—they are ineligible for the collective bargaining rights available to other college employees. (States determine whether public college and university faculty members may unionize.)

Joining ACE in the brief are the Association of American Universities, the Association of Independent Colleges and Universities of Pennsylvania, the College and University Professional Association for Human Resources (CUPA-HR), the Council of Independent Colleges and the National Association of Independent Colleges and Universities.

I received a letter yesterday from Sen. Richard Durbin (D-IL) and six other senators, expressing interest in working with the higher education community on concerns raised by the recent U.S. Public Interest Research Group report, The Campus Debit Card Trap.

The report claimed that in partnership with colleges and universities, certain financial institutions control or influence federal financial aid disbursement to students through these arrangements and the ensuing swipe fees, inactivity fees and overdraft fees. A well-structured debit card program can provide benefits, the report pointed out, but many of the current programs have high fees which can leave students in deeper debt.

The senators outline four areas of concern they would like institutions to address, and ask campuses to let them know about best practices that curb these problems. Please take a minute to review the letter and contact your congressional delegation with any information you would like to share.

ACE and several other higher education associations this week submitted comments to the Federal Communications Commission (FCC) about the proposed reform of the Universal Service Fund (USF) contribution methodology.

The FCC created the USF in 1997 to meet the goals mandated by the Telecommunications Act of 1996, primarily to promote the availability of quality services at just, reasonable and affordable rates for all consumers.

In our comments, we express support for reform but also urge the FCC to retain some key principles, "particularly the need to avoid imposing an unfair burden on any sector, and the treatment of educational institutions as 'end users' and not as 'providers' of telecommunications."

The comments were informed by a survey conducted by our colleague association EDUCAUSE about how proposed FCC changes might affect colleges and universities. A preliminary analysis of survey results can be found in EDUCAUSE Vice President Greg Jackson's blog post, "How USF Reform Might Affect Colleges and Universities: Some Early Appraisal."


ACE is partnering with CUPA-HR to conduct a new study of the senior leadership of American higher education. This study serves as a follow-up to the 2008 publication On the Pathway to the Presidency: Characteristics of Higher Education Senior Leadership. That report provided vital demographic information on individuals serving in positions that typically lead to the presidency. The survey is brief and asks only for information commonly found in campus human resource data systems. It will be open for data collection through Aug. 26. Email invitations to participate were sent to campus human resources offices on June 26. Both organizations are grateful to TIAA-CREF Institute for its generous support of this effort.

Molly Corbett Broad
President of ACE