Along with 29 other higher education
associations, ACE submitted comments this
week on the Department of Education’s (ED) proposed
expansion of the reporting requirements for foreign gifts and contracts
under Section 117 of the Higher Education Act (HEA), saying that it exceeds congressional authority.
This small provision of the HEA
requires institutions of higher education that receive more than $250,000 in a
gift or contract from a foreign government, corporation, or individual to
provide information to ED every six months. The reporting requirements have
remained relatively obscure until this year, when ED began launching
investigations into individual universities.
Many institutions have been confused
about what information they must provide under Section 117. Since January, ACE and
others have repeatedly called on ED to clarify the reporting requirements, with
no satisfactory response. But rather than issuing further guidance to
institutions or going through the traditional negotiated rulemaking process—which
carries the force of law—ED has published its proposal in the form of a
checklist under the Paperwork Reduction Act.
The new information collection would
go well beyond the statute as written, the groups said in their comments. For example,
it may require the reporting of contracts and gifts below the statute’s
$250,000 threshold. That may also extend to the disclosure of the names and
addresses of individual foreign donors, including alumni, even for small-dollar
gifts, which could conflict with state laws protecting donor
confidentiality.
The groups also express concern over the time it will take
for institutions to comply with these expanded reporting requirements. In turn,
they say, by overwhelming ED with an enormous quantity of information that it
would be unable to effectively use, the expansion “will actually undermine the
congressional goal of bringing greater transparency to the relationships
colleges and universities have with foreign entities.”
For more details on the process and impact of the
information collection, also read the memo ACE commissioned from Hogan Lovells
LLP, which begins
on page 18 of the comments.