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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, June 6-10, 2011

Vol. 12, No. 21

  • ACTION ALERT: Ask Your Representative to Support Bill Repealing Credit Hour and State Authorization Rules
  • Senate Hearing Looks at New Gainful Employment Regulation
  • Supreme Court Rules Against Stanford in Patent Case
  • Homeland Security and State Departments Announce Relief for Libyan Students in U.S.
  • IN BRIEF: House Votes on Patent Reform Next Week; Amendment to Delay Debit Card Swipe Fee Reform Fails; Academically Adrift Webinar Wednesday

I would like to begin with a matter that needs your immediate attention. Rep. Virginia Foxx (R-NC), chair of the House Subcommittee on Higher Education and Workforce Training, has introduced a bill (H.R. 2117) to repeal two of the more problematic Department of Education regulations scheduled to go into effect July 1. The House Committee on Education and the Workforce will mark up this bill on Wednesday, June 15.

H.R. 2117 would first repeal the so-called state authorization regulation which significantly expands and complicates existing federal requirements for an institution to legally operate within a state. This 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, 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. Rep. Foxx's proposal also would repeal the new federal definition of a credit hour and ban the education secretary from establishing such a rule in the future.

I know these regulations are of great concern to many of you. If that is the case, it is imperative that you contact your representatives before Wednesday and ask them to co-sponsor H.R. 2117.

ACE and 69 higher education and accrediting organizations sent a letter April 26 to House and Senate education committee leadership requesting help in blocking both of these regulations, and we now need your help to push this House bill forward. We have drafted another letter to Rep. Foxx thanking her for sponsoring this measure, the text of which you can use as talking or writing points when contacting your congressional delegation.

The following is a brief overview of the two issues:

Credit hour: Establishing a federal definition of a credit hour opens the door to inappropriate federal interference in core academic decisions that must be left to individual institutions. As a secondary matter, the definition at issue is ambiguous, and we believe the lack of effective guidance on implementation will pose serious challenges as campuses begin to review curricula to ensure compliance. The "Dear Colleague" letter the department sent in March primarily served to raise additional questions regarding the issue.

State authorization: The current state authorization procedure is a straightforward administrative requirement that will get very complicated when the new regulations take effect. For example, each state will be required to have a complaint process for students, although significant questions remain in several states about whether the existing processes meet federal requirements. The regulation also raises the specter of state bureaucrats interfering in curricular matters at private colleges and universities, a particular worry for religious institutions.

In addition, the rule includes new requirements for distance education programs that will force many institutions to comply with state policies that often are confusing, expensive and outdated. The department announced on April 20 that it will take a limited enforcement stance over the next three years on the distance learning portion of the state authorization rule, acknowledging these challenges. Some additional guidance on compliance was included in the announcement, but we remain seriously concerned about the rule.

Please let us know if you would like further help or information as you plan your strategy. I will update you next week on the status of the legislation.

The Senate Health, Education, Labor, and Pensions Committee held its fifth hearing Tuesday on the for-profit education sector, this time focusing on student debt loads and the new gainful employment (GE) rule released by the Education Department last week.

Chairman Tom Harkin (D-IA) continued his aggressive criticism of for-profit schools. He characterized the new GE rule, which is intended to ensure students in career programs will earn enough money to repay their loans, as "an important but modest first step," claiming that it did not go far enough to protect students. Martha Kanter, under secretary for the Department of Education, defended the rule as giving career colleges "every opportunity to reform themselves" while not letting them "off the hook."

Kanter also announced two pilot programs: The first would provide institutions with guidance on creating tuition-free trial periods so students can sample a course of study before making a financial commitment, and the second would give colleges more discretion to set lower federal student loan limits. (See The Chronicle of Higher Education on how this plan will affect the so-called 90/10 Rule.)

Republican committee members boycotted the hearing, believing that the "continuation of this investigation is motivated in part to embarrass" for-profit colleges, as Ranking Member Mike Enzi (R-WY) wrote in a May 31 letter to Harkin.

The Supreme Court ruled Monday that universities do not have automatic rights to patents developed under federal research grants in the case Stanford University v. Roche Molecular Systems. The vote was 7-2 in favor of Roche, with Justices Stephen Breyer and Ruth Bader Ginsburg dissenting.

The case involved several patents used to quantify HIV in blood samples, which were developed by scientists conducting National Institutes of Health-funded research at Stanford (CA). The primary focus was the interpretation of the University and Small Business Patent Procedures Act, also known as the Bayh-Dole Act of 1980. Among other things, the law gives U.S. universities, small businesses and nonprofits rights to inventions and other intellectual property resulting from federally funded research.

ACE, along with several other higher education associations and a large number of universities, filed an amicus brief in support of Stanford's position in the case, so clearly we are disappointed in the decision. Nevertheless, we believe Bayh-Dole remains essential to the continued flow of university discoveries to the marketplace. A smaller coalition of groups issued a statement on Tuesday expressing our shared determination to continue collaboration between universities and the private sector, with the Bayh-Dole Act as its foundation.

In light of this ruling, we recommend every institution conducting federally sponsored research ask counsel to review the opinion. Careful assessment of institutional policies and agreements with faculty working on that research may be in order.

We more heard good news from the departments of Homeland Security and State yesterday regarding the 2,000 Libyan nationals studying in the United States who have been left with no financial support since the United Nations Security Council froze Libyan assets on Feb. 28.

Both agencies announced programs of special relief for these students. U.S. Immigration and Customs Enforcement (ICE) has said it will suspend certain regulatory requirements to allow eligible Libyan F-1 students to obtain employment authorization, work an increased number of hours during the school term and, if necessary, reduce their course load while continuing to maintain their F-1 student status. (See the ICE fact sheet here.) In addition, the Department of State announced relief for certain Libyan J-1 exchange visitors who have suffered severe economic hardship as a direct result of the civil unrest in their home country.

The visa news comes on top of last week's report from the Canadian Bureau for International Education (CBIE) that bank transfers from frozen off-shore accounts should start moving and students should start receiving their funding soon.

We appreciate the government's cooperation in aiding these students and also the assistance given by campuses while we all waited for a resolution. For more information and resources, see the NAFSA: Association of International Educators website.


We expect the House to vote on its patent reform measure next week, perhaps as early as Monday. We learned that Budget Committee Chairman Paul D. Ryan (R-WI) and Appropriations Committee Chairman Harold Rogers (R-KY) are objecting to language in the America Invents Act (H.R. 1249) that would allow the U.S. Patent and Trademark Office to keep all of the fees it collects. We signed a letter to House Speaker John Boehner (R-OH) and Minority Leader Nancy Pelosi (D-CA) on Wednesday urging that the provision be retained, given that over the last two decades more than $900 million in user fees has been redirected to other purposes. For an overview of H.R. 1249 and a comparison of it with the Senate-passed bill (S. 23), click here.

We are pleased to report the Senate voted down an amendment from Sens. Jon Tester (D-MT) and Bob Corker (R-TN) Wednesday that would have delayed the debit card swipe fee reforms enacted last year in the Dodd-Frank Wall Street Reform and Consumer Protection Act. We are on record in support of the law, believing it will reduce debit card costs to colleges and universities. We also sent a letter on Tuesday stating our opposition to the proposed delay.

I hope you or a member of your leadership team are planning to join us Wednesday, June 15, for our webinar on the recent book, Academically Adrift: Limited Learning on College Campuses. Authors Richard Arum and Josipa Roksa will be joined by Gary Rhoades, former general secretary of American Association of University Professors, for this event, which will be moderated by ACE Senior Vice President Terry Hartle. See the ACE website for more information and to register.

Molly Corbett Broad
President of ACE