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

2014 Elections & the Higher Education Agenda

Nov. 10-14, 2014 ~ Vol. 15, No. 34

  • Midterm Elections Refocus Higher Education Agenda; FY 2015 Funding Tops Agenda of Lame-Duck Congress
  • College Board Releases Trends Reports on College Cost and Student Aid
  • Education Department Releases Final Rules on Gainful Employment, Clery Act
  • LEGAL UPDATE: Appeals Court Denies Request to Rehear Fisher v. UT; ACE, Education Groups File Brief in Study Abroad Liability Case; Fair Use Case Sent Back to Lower Court
  • IN BRIEF: Regulation Task Force Meets; National Commission Calls for Higher Education Governance Changes; Groups Release College Mental Health Primer

Congress returned to work this week after an extended break leading up to last week's midterm elections. As you know, the GOP will lead the Senate as well as the House when the new Congress convenes in January, which will refocus the Senate's higher education agenda in some substantial ways. A few notes on what to expect in the months ahead:

Sen. Lamar Alexander (R-TN) was reelected and is widely expected to chair the Senate Health, Education, Labor, and Pensions (HELP) Committee in the new Congress. One of Sen. Alexander's top priorities is to simplify federal rules and ease the regulatory burden for colleges and universities. As committee chair, he will be leading the attempt to reauthorize the Higher Education Act, which is a likely vehicle for his deregulation efforts. Along with Sen. Michael Bennet (D-CO), he introduced a measure last summer to radically simplify the 108-question FAFSA, among other things.

Other notable transitions include the retirements of Sen. Tom Harkin (D-IA), current chair of the Senate HELP committee and the education appropriations subcommittee, and Rep. George Miller of California, the top Democrat on the House Education and the Workforce Committee. Both have been stalwart supporters of higher education, especially as advocates for low-income students. Rep. Bobby Scott (D-VA) is expected to replace Rep. Miller as the ranking Democrat on the House education committee. Sen. Patty Murray (D-WA) is the presumptive top Democrat on the Senate HELP committee, and she also is a candidate to replace Sen. Harkin as the ranking member of the education appropriations subcommittee. (Click here for a full list of retirements and defeats significant for higher education.)

Republican control of Congress will, of course, complicate President Obama's plans for higher education, including his proposal to rate colleges, which needs Congressional approval to tie the ratings to federal funding. It also will likely impact funding for student aid for the next two years (you will recall that Rep. Paul Ryan's [R-WI] proposed budget for FY 2015 contains $90 billion worth of cuts to the Pell Grant Program.) However, as The Chronicle of Higher Education points out, research dollars may not be as much of a target: The three Republicans expected to lead the Senate's appropriations and science committees (Sens. Richard Shelby of Alabama, Jerry Moran of Kansas and John Thune of South Dakota) all have records of supporting funding for the main federal research agencies.

As for the remaining weeks left in this Congress, the main goal is funding the government for the fiscal year that began Oct. 1. Negotiations already are underway between the House and Senate Appropriations Committees on a $1 trillion-plus FY 2015 spending bill (a temporary funding measure now in effect expires Dec. 11). One possibility congressional staff are investigating is wrapping the 12 annual spending bills into an omnibus measure.

Some 133 national organizations, including ACE, sent a letter Wednesday to all members of Congress urging them to enact an omnibus package and requesting strong funding for research and higher education. The letter is part of the effort to Close the Innovation Deficit, an initiative designed to secure greater investments for research and higher education programs and agencies.

Also on the agenda is a need to renew a range of expiring tax incentives, including the above-the-line deduction for qualified tuition and related expenses and the research and development tax credit, as well as the already-expired IRA Charitable Rollover. We have indicated our support for these extensions to House and Senate leaders.

The College Board yesterday released its annual reports on student aid and college costs, and the news is the most positive we have seen since the height of the recession in 2008: student borrowing is on the decline, and while costs continue to rise, the pace has slowed down.

Contrary to the widespread notion of a student debt crisis, the report finds that student borrowing is not on an accelerating path. Total education borrowing fell by 8 percent between 2012-13 and 2013-14, and by 13 percent over the past three years, according to Trends in Student Aid. The average amount borrowed also is on the decline: In 2013-14, undergraduates borrowed an average of $6,670 in federal loans, approximately $300 less than the year before, and a 10 percent decline over the most recent three years. (Since the decline in borrowing is recent, it is not yet reflected in the average amount owed by college graduates.)

The companion report, Trends in College Pricing, found that while tuition and fees did increase in 2014, the rate of growth has slowed notably. At public four-year colleges, published in-state tuition and fees increased by 2.9 percent, as compared to 2.8 percent in 2013—the smallest one-year increase since the mid-1970s. The increase for private nonprofit four-year institutions was 3.7 percent in 2014, while community colleges saw a 3.3 percent increase.

The Department of Education (ED) has released final rules in two areas we have been watching closely for several years: (1) gainful employment, and (2) revisions to the Clery Act made by the Violence Against Women Act (VAWA).

The final rule on gainful employment, an effort to ensure that individuals who enroll in career training programs will earn enough money to repay their student loans, applies to vocational programs, including most for-profit institutions. All non-degree programs at traditional colleges and universities—such as certificate programs—must also comply with the rules. The final rule, which will take effect in July 2015, does not include a student loan default rate as a standard for evaluating colleges, one of two criteria outlined in the draft regulations released in March. The remaining criteria, unchanged from the draft rules, hinges on graduates' debt-to-earnings ratios.

The administration might have jettisoned the default rate in an attempt to make the rule legally bulletproof; however, the Association of Private Sector Colleges and Universities already has filed suit in federal court in a bid to block the regulations.

The final rule implementing changes to the Clery Act expands the information colleges and universities must collect about campus crime to include domestic violence, dating violence and stalking. Other changes include adding gender identity and national origin as categories of bias under the Clery Act's definition of hate crimes; requiring institutions to ensure that their disciplinary proceedings are prompt, fair and impartial; strengthening protections for victim confidentiality; and specifying requirements for prevention programs.

The rule will take effect in July 2015. Until then, institutions are expected to make a good-faith effort to comply.


Fisher v. University of Texas at Austin: The U.S. Court of Appeals for the Fifth Circuit on Wednesday denied a petition for a rehearing by the full court in this high-profile diversity in admissions case, setting the stage for another round at the U.S. Supreme Court, if it chooses to take the case. Under Supreme Court rules, plaintiff Abigail Fisher has 90 days after denial of rehearing to petition for another hearing before the court, making the deadline Feb. 10, 2015. Read full details in The Texas Tribune.

Cambridge University Press v. Patton: The U.S. Court of Appeals for the 11th Circuit issued its opinion Oct. 17 in this challenge to the use of scholarly works in the Georgia State University library's electronic reserves. The case was on appeal from the U.S. District Court in Atlanta, which rejected 70 copyright infringement claims filed by three publishers, finding that only five excerpts exceeded the court's analysis of statutory fair use factors. ACE and other higher education associations submitted an amicus brief to the appeals court supporting the district court's ruling. In a lengthy opinion, the appeals court sent the case back to the district court to reconsider the application of fair use doctrine. Click here for more information. Last Friday, the publishers filed a request for a rehearing of the appeal by the full court.

Munn v. Hotchkiss: ACE, the National Association of Independent Schools and 26 other education groups submitted a friend-of-the-court brief Oct. 21 in support of The Hotchkiss School (CT) as the institution appeals a federal court ruling in a study-abroad liability case. The federal district court in Connecticut ruled last year in favor of plaintiff Cara Munn, awarding the former student $41.75 million after she suffered a tick bite in 2007 while on a school-sponsored trip to China. The brief emphasizes the increasing importance of international education and questions how reasonable it is to expect any school to prevent unprecedented and unforeseen risks, particularly in the context of foreign travel. Click here for more details.


The Task Force on Federal Regulation of Higher Education held its third meeting Nov. 6 in Washington, DC. The discussions were focused on the issues of estimating the cost of regulation and ideas on how to improve the regulatory process. The Task Force members in attendance also engaged with the authors of white papers on possible regulatory process reform ideas that were commissioned through the generous support of Lumina Foundation. Based on the discussions at the meeting, ACE staff working on the project will make further refinements to the materials, including the draft report. The next Task Force meeting is scheduled for Dec. 9. The goal is to present the report in early 2015 to the bipartisan group of senators who created the Task Force.

A report issued Nov. 6 by the National Commission on College and University Board Governance says governance changes are needed to address risks to the value of American higher education. Consequential Boards: Adding Value Where It Matters Most found that most college and university boards continue to approach governance as they did 50 years ago, "often focusing on narrow, near-term tactical matters instead of providing long-range strategic direction and policy." The 26-member commission, established by the Association of Governing Boards of Universities and Colleges, was chaired by former Tennessee Gov. Philip Bredesen.

Common myths about mental health, the important role it plays in college students' success and resources to help address issues specific to college and universities are presented in a new primer published by ACE, NASPA - Student Affairs Administrators in Higher Education and the American Psychological Association. A Strategic Primer on College Student Mental Health explains why mental health is such a critical component for student success, highlighting several college and university campuses that have programs that address mental health issues from a variety of angles, including peer counseling, peer coaching and behavioral intervention teams.

Molly Corbett Broad
President of ACE