ACE, Higher Education Groups Criticize Proposed Expansion of Reporting Requirements for Foreign Gifts and Contracts
Published: November 08, 2019

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.