dotEDU Live: New Year, Same Congress—What’s Next for Higher Ed?


​​​​​​​​​​​​​​Aired January 25, 2024

In the first dotEDU Live of 2024, hosts Jon Fansmith and Sarah Spreitzer discuss how the 2024 presidential election might impact higher education. They also delve into problems with the new FAFSA, the latest House Higher Education Act reauthorization bill, short-term Pell, and more.

Here are some of the links and references from this week’s show:

House Dysfunction by the Numbers: 724 Votes, Only 27 Laws Enacted
The New York Times (sub. req.) | Dec. 29, 2023

Higher Education in Political Crosshairs as 2024 Election Heats Up
Inside Higher Ed | Jan. 16, 2024 

FAFSA Rollout Off to a Rocky Start
The Washington Post (sub. req.) | Jan. 2, 2024

Ed Dept Funding Levels Maintained as Biden Signs 3rd Stopgap for FY 24
Higher Ed Dive | Jan. 22, 2024 

House Republicans to Broaden Higher Education Inquiry Beyond Antisemitism
The New York Times (sub. req.) | Jan. 5, 2024

The College Cost Reduction Act: What You Need to Know
American Council on Education | Jan. 19, 2024 

House Committee Approves Bills on Short-Term Pell, WIOA Reauthorization
American Council on Education | Dec. 18, 2023

2 Final Title IX Regulations Will Likely Be Delayed — Again
Higher Ed Dive | Jan. 19, 2024

How a Fishery Case Fits into a Long-Game Effort to Sap Regulation of Business
The New York Times | Jan. 17, 2024


 Read this episode's transcript

*** Upbeat Music ***

Jon Fansmith: All right. Welcome everyone. I am one of your hosts, Jon Fansmith, senior vice president for government relations and national engagement here at ACE, and joined, as always on dotEDU Live, and also on our dotEDU podcast as well by my talented cohost, Sarah Spreitzer. Sarah, how are you doing? Happy New Year.

Sarah Spreitzer: Yeah, happy new year, Jon. I feel like I haven't seen you for a while, since you took off the first couple of weeks because of COVID. So glad to have you back in person.

Jon Fansmith: That's an interesting way to summarize that, but I did, in fact. We've shared my private medical information.

Sarah Spreitzer: Oh, sorry, that probably a HIPAA violation.

Jon Fansmith: We'll be talking about this later, obviously. No, you're right. I did have COVID, and it really did surprisingly wiped me out, so luckily surrounded by talented people here at ACE, so we continue to operate smoothly despite my limited ability to help. But a lot going on, right? With a New Year, it's a whole new congress, right?

Sarah Spreitzer: I know. The house is out on recess this week, but we have a lot going on in the upcoming presidential election. And I don't know about you, but I've been kind of in denial about a presidential election coming up, but it is here and the caucuses are happening, and I think at least some of the candidates are starting to think about platforms on higher education. So what are you thinking about at the start of the year, Jon? And what's going to happen with higher education and the upcoming presidential election?

Jon Fansmith: I am not mentally blocking the fact that we're in a presidential election cycle. I spent a lot of time thinking about the fact that we're in election cycle because I think it's been pretty determinative about what we've seen, or maybe more accurately, what we haven't seen happening in Congress so far this year. And I want to tip my hat a little bit to our colleague David Baime, who I thought summarized this really well the other day. He said when we started the last session of Congress, there was this viewpoint. Look, it's in a big election cycle. There's going to be a lot of noise, a lot of new ideas introduced, but ultimately we didn't expect to see a lot of legislation actually get introduced or get passed. And despite all this, really frankly intense amount of scrutiny and attention higher education has been getting over the last few months, that prediction has really held true.

I was looking last week at something in preparation for talking to a group of people and found out that... You may know this, Sarah. I don't know if I've shared this with you. The first session of Congress this year, so last year, 2023 passed 27 bills that were enacted into law. The same time period in the previous Congress, they passed, and I forget the exact number, but it was well over 270 bills that were enacted into law.

Sarah Spreitzer: Wow.

Jon Fansmith: Last year's Congress was one of the least productive congresses ever. And when I say 27 bills passed into law, as I was doing that research, two of them at least were renaming Veterans Affairs offices, and one of them was creating a commemorative coin for the 250th anniversary of the Marine Corps. Worthy endeavors obviously, but in terms of overall productivity, Congress is not doing a lot. So there has been a lot of noise. There has been a lot of attention. Higher ed's really moved in the spotlight in a national way. This is sort of the norm now. It used to be an exception. Now between loan forgiveness, debates we had previous years, certainly debates around campus free speech and the conflict between Israel and Gaza, it has been a level of national intention. And what we're doing, that is translating to a lot of words. It isn't been a lot of legislation. But a few things on the horizon, certainly, that we're paying attention to.

Sarah Spreitzer: Yeah. And I would say, Jon, I think both of us have been talking about, when we talk with members... It's only January, right? We have a lot of months to get through before the presidential election. We are trying to get prepared for higher education to be one of the issues in the upcoming presidential election. And in fact, we did have a question from the audience about student loan forgiveness, which was a big priority for President Biden. Do you think that is going to be discussed in the upcoming election by the candidates?

Jon Fansmith: Yeah, I think probably on both sides. And it's worth noting we're talking about... We've sort of framed this in terms of the presidential election, which makes a lot of sense. The presidential election, in a lot of ways, sucks a lot of the air out of the room that more voters turn out in an election year, a presidential election year, there's more money, there's more everything. But part of the reason, what we've seen happening in Congress, we've seen doesn't have as much to do with the presidential elections, it's the fact that the margins are so incredibly tight in both chambers, that both parties are looking at this not just as a winnable presidential race, but also as a race in which they could theoretically control the presidency and both chambers of Congress afterwards. So everything is done from that prism.

We are, I think, seeing that. We talked about this, the investigations into antisemitism on campus. We'll talk about that in a little bit more detail, the focus on the hearings there. Certainly, some of the other things that have come forward, a lot of them are being done with a political lens. They either motivate or they help the parties define to their constituencies where they stand. I don't think that's going to change. I think if anything, that noise we talked about is only going to ramp up the closer and closer gets to the election because higher education has become, in many ways, an issue that's pretty partisan in ways that it hasn't in a long time.

Sarah Spreitzer: Yeah. And I think one of those issues that is really non-partisan, but I think is weighing heavily on the Biden administration is the FAFSA. And we saw legislation passed in a bipartisan way to improve the FAFSA. The Department of Education is moving to implement changes to the FASA. I think there's actually been a lot going on just in this month regarding that. Do you want to share an update?

Jon Fansmith: Yeah. And this is one of the things about talking to people from campuses. In a lot of ways, people on campuses are very aware of this in a way that I don't think has quite resonated as much here in Washington DC. This is a huge issue we've been tracking for a long time and talking [about] for a long time. This is the Department of Education implementing changes as required by law through the FAFSA Simplification Act, passing law a few years ago. The department has very clearly struggled to get those changes since law, and they are important. This is changing the application form for how students apply for federal financial aid. It's changing the formula used to calculate who gets how much aid.

It's a massive and substantive set of changes, so not a shock the Department of Education is struggling to implement them. But I think even given that context, even given the context that FSA, the Federal Student Aid office at the Department of Education, which is responsible for this, under-resourced as they are, and that's not a partisan view or anything else, everybody pretty widely agrees they don't have the resources, they need to do all the things they're being asked to do, it has gone very badly. They were supposed to have the form up and live by the end of the year. Certainly, the hope at the beginning of this process is we meet the October 1 deadline. That didn't happen. As it was the form went live at the very end of December. Almost immediately, there were problems with it.

There were periods early on... And to the department's credit, they announced that this was sort of a beta phase. It would go live, and they knew there would be issues and they were trying to be very attentive to that, but there were early days where the form would only be live for half an hour a day. There were lots of students who would apply and get trapped within the system, who would be put into waiting rooms, who wouldn't understand what exactly was happening. The process had a number of other technical flaws that over time, were identified and either addressed, or at least identified so they could be worked around. It has gotten to a much more stable place in terms of students' abilities to access it reliably and fill out the form, apply for financial aid. The department announced last week they had a little over a million successfully completed applications. That's great. It's about 1/20th of the number of people we expect will be applying.

Sarah Spreitzer: Jon, you talked about under-resourced, the FSA is under-resourced. And I've actually been hearing that from several agencies. And part of that I think is because one of the things that Congress does still need to do is provide funding to those agencies, right? And apologies if this is switching things up too much, but I do feel like it is related as the agencies are trying to implement these new things, they are still waiting on their funding from last year. And we just saw Congress actually pass another continuing resolution that's going to push us into March, and I think that that would make things even more difficult for the Department of Education as they're figuring out how to undergo this work.

Jon Fansmith: Yeah, I think that's actually a really interesting point. And drawing on the FAFSA process, part of this problem is it's one thing to talk about [that] they've had a really hard time getting their form up, right? And we will talk a little bit about the funding implications too, but the other thing is there are huge backend implications for institutions here. If the form itself hasn't been reliably available really until about a week ago, if we only have one out of 20 students who we expect to apply having completed the form at this point in the year, normally most people start filling out that form at the beginning of October, we're months behind. That's not great by any standard, but it's especially bad because what it means is the Department of Education still needs to take that information, process it, make determinations under a new aid formula, and send that back out to institutions so they know what aid students are eligible for.

They're doing that, as you said, in this environment where it's also not clear... A little bit of protection here the current fiscal year for funding. For student aid funding, that's already been determined. What they're doing for FY24 funding will impact next year's financial aid year. So it's not necessarily uncertainty as to what aid might be available, but schools won't know what an individual student is entitled to what their financial aid package can look like until likely mid-March at the earliest. And when you start thinking about low-income students, the whole reason we moved the date from January back to October in the first place was to give those low-income students more time to look at offers from different schools, to look at the availability of aid, look at what they can afford and make decisions that fit them. If that information is not like going to campuses until mid-March, if campuses understandably need a couple of weeks to turn around offers and get those out to students, and then there's the process of students making decisions.

Everything is now falling much further back in the calendar than we're used to doing. There's a lot of uncertainty. This is problematic. You add to that the fact that, like you said, FSA is an agency that needs additional money, departments within the Department of Education that needs additional money. There's no clarity on what that looks like. Congress just keeps punting the ball down the road on funding. And there was some thought that Speaker Johnson was elected in place of Speaker McCarthy. You know, he replaced Speaker McCarthy in part because he was going to force a return to normal order. He was going to impose some fiscal discipline. He was going to get the appropriations processes, all the bills voted on moved by the chamber that sort of restore some normalcy, and we just went through the process.

Sarah Spreitzer: How's that going?

Jon Fansmith: Yeah. Exactly, right? We now have a bifurcated continuing resolution. We split the dates between February 19 and February... What was it? I forget. The second, the third, something? It doesn't matter anyway because they've punted it again down the road to March.

Sarah Spreitzer: To March.

Jon Fansmith: ... and March 8. We have a process that hasn't advanced at all and is somehow even more complicated, and there's no clarity on the overall spending levels in the same dynamics. Freedom Caucus members, other conservative members of the house, very much do not want to spend at the levels that were agreed to. When Speaker Johnson said that he had an agreement with the White House and the Senate about an overall funding level that only trimmed about 16 billion in overall spending, there was a revolution on the floor that did that. And so we don't even know right now, late January, what the top line spending will be, which is what everything else falls from. You add to that, when you start thinking about what do we care, education funding programs, the idea that there's any understanding of where the ultimate programmatic funding will fall, that's just not there. There is more uncertainty at this stage in the process than I think we've seen in... I don't know, Sarah. Wouldn't you agree this is probably the most uncertain we've been in a very long time?

Sarah Spreitzer: I'm still convinced that it's going to be a yearlong continuum resolution. Maybe I'm completely wrong, but I think talking about the uncertainty about the FAFSA... And we did have a question from somebody about when will we know the Pell amount for this year? Those two things combined, do you think it's going to be very difficult for institutions to package aid, or do you think it will suddenly become clear end of March, that we're going to know how much the Pell Grant is going to be, we're going to know that work study is in there? I don't know. I'm still thinking continuing resolution, but I don't know if they kick it down the road again.

Jon Fansmith: Yeah. A continuing resolution is bad in a lot of ways. And I know we don't want to get into too much of the sort of federal budgeting rules, but a continuing resolution in a lot of ways is sort of bandied about as the idea that it's just the same funding levels as a year before because of the way things were funded going into this year. That's not actually true. There would be pretty significant cuts in non-defense spending if there was a CR, which is where almost all the education funding we care about comes from. So that is not a great outcome. I think you're right. I think that's certainly a reasonable possibility, simply because nobody can figure out a path forward that gets everybody on board, certainly not one that preserves the speaker in his current role because passing a funding believe on a short term basis was what cost Kevin McCarthy his job.

It is a little bit tough. I will say, just to make sure, so people aren't too worried, the way the federal government funds the financial aid programs at least is forward funded. So for the next award year is what we're worried about with current year funding. For this award year, the packaging that students are undergoing, that has already been determined. So there is some predictability. Really, the biggest problems are exactly this. We don't know from the Department of Education on an individual student level yet what students are entitled to. There is a new formula for calculating how much aid that should be able to. So you can't even reasonably say, "Well, they got X, Y, or Z last year, so they should get the same this year." There's just a lot that's unknown.

And until the data starts more regularly coming back from the department until the processes on both the department side and the institution sides are sorted out, I think you get to a little bit of a concern about what exactly, on an individual student level and how institutions package. Big picture federal funding, that's less of an issue directly for campuses in this regard.

Sarah Spreitzer: Well, I think we'll continue to wait to see what's going to happen with funding, but we do... Even though they may not be getting a lot done, the Committee on Education and Workforce is very busy right out of the gate, and they've been doing a lot of things, including one of the issues that I think is continuing from the last session, which is these investigations into antisemitism. And I think we've talked to committee staff. We know that they're expanding those investigations. Any insight, Jon, into what might happen with those,

Jon Fansmith: Yeah. And this is one where I really wish we had more information we could share. I think the committee has shared some things. There's some unspoken implications you can draw from what's been said. People, if you're participating in this session, you're probably aware of the December 5th hearing before the Education Workforce Committee with the three college presidents from Harvard, Penn, and MIT. Out of that hearing, and there's a lot of ways to draw conclusions about what exactly was motivating this, but the Education Workforce Committee announced, the majority announced, they would be launching investigations into a number of institutions, not just those that had testified at the hearing, but really reserved the right to go and look at other institutions where they felt there were problems.

Not necessarily a surprise, I think to a lot of people. There's been a huge political dynamic to this. There's been certainly a lot of national attention to it. We are in this election year. This is something that, again, is energizing voters certainly on the Republican base, but in other areas. So not a shock we would see investigations move forward. This, frankly, doing investigations, allows you to keep this in the news cycle for the next few months over this election season. It provides the opportunity for additional hearings and additional attention on the issue. We don't know how broad the scope of the committee's goals are. We know it will go beyond four or five institutions that are widely expected to be the initial targets of investigations. We know the committee intends to send subpoenas to institutions requesting large amounts of documents. I keep saying this. I need to go back and check the actual quote, but the term I've seen is something like mountains of documents or things like that.

They're going to do deep dive. They're taking this very seriously. They have staff specific to this purpose. This is not something that is a passing moment. There will be a lot of focus and energy on that. How big it will ultimately be, how many institutions will be pulled in, not clear. It's worth noting right now, I believe this count is current, the Department of Education's Office of Civil Rights has 51 open investigations into institutions around issues regarding antisemitism on campus. So there are certainly a large number of institutions that have come to the government's attention for how they've handled these matters.

Where these investigations will go, both the OCR ones and the education workforce ones, I don't think we can say with any certainty right now. I certainly do think the education workforce ones will get a lot more airtime, a lot more publicity. They will be a lot more within people's view than certainly what we've seen from OCR, which pursues appropriately enough, a very deliberative, very directed investigative process, and tends to fly more under the radar as a result.

Sarah Spreitzer: Yeah. But I think it is definitely going to be something that we're going to be watching closely going into this year, not something that's just going to go away post the December 5th hearing. But Ed & Workforce has been very busy. They've also introduced the College Cost Reduction Act, which we talked about seems very similar, at least name wise, to the college cost reduction in access. What was it, CCRA?

Jon Fansmith: CCRA, yeah.

Sarah Spreitzer: Which for those old timers was several years ago. But the CCRA seems... We get this question a lot, when is the Higher Education Act going to be reauthorized? Right? This at least is a huge part of the Higher Education Act that I think is Chairwoman Foxx's proposal for reauthorizing really the heart of the Higher Education Act. And I know Jon, we've talked about things that are in the bill, but we have a question from our friend Tom Vu about it has some good things and a lot of bad things. Can you talk about some of those good things and bad things? And then Tom also wants to know, how are we talking about this with federal lawmakers?

Jon Fansmith: Yeah. And hey, Tom, a good question as always. I think your summary is exactly right. There are some good things and a lot of bad things. Maybe run quickly through some of the good things. There are some proposals in there that... There's a Pell Plus proposal. This is something that has been in the public policy space for a while. It's the idea that you increase the amount of Pell Grant funding made to individual students in the back ends of their educational careers as an incentive to stay enrolled and to complete. They also look at creating PROMISE grants to institutions that are demonstrating success with helping low-income students succeed at those institutions, providing additional funds to implement programs that are working on those ends. Thank you to our producer, Laurie Arnston, who put our summary, a link to our summary in there, so you can read in more detail some of the things I'm talking about.

So there are things like that that I think we look at and we say these are proposals that have received some degree of support within the higher education community over the last few years. There are things that there may be elements of them that we think could be revised, but certainly are positive steps by the committee. I would note though this is a purely partisan bill. There are no Democratic co-sponsors on this. It is intentional that it represents Republican views on the committee. I think it speaks a little bit to your point about HEA reauthorization. This is intended to introduce the ideas that I think Virginia Foxx thinks are important to put into the conversation around college and oversight of colleges, universities, and how we fund higher education. It's also relevant to note that she said earlier, end of last year, a little bit about she wasn't going to pursue a comprehensive Higher Education Act reauthorization bill. This is the approach. It is taking pieces of it and addressing them through specific legislation. And this is really probably the biggest and most comprehensive one.

And I talked about those good things. Well, let's go a little bit into some of the bad things, and the bad things are quite big. This bill completely overhauls the federal loan system. It eliminates PLUS loans, both graduate and parent PLUS loans. Those are no longer eligible. They set new hard caps on aggregate borrowing based on the category of degree offered. So there is a different level for undergraduate students who are eligible for subsidized loans, graduate students, and then professional students. I would note, Sarah, the cap for professional students is $150,000 and the bill does not include, as current law does, an exemption for those in the health professions where... For instance, we know studying to be a doctor tends to be a very expensive proposition. The federal government accommodates that by allowing much higher loan borrowing thresholds that would no longer exist under this bill.

The other thing which I think is particularly important to colleges and universities, cost of attendance is no longer set the way we normally do it. Institutions make determinations about what their students' costs are and provides that. Students can borrow up to cost of attendance, but cost of attendance is now determined not by the institution looking at the circumstances or students' space, but instead by using the median cost of attendance for similar programs. So if you are a student who's pursuing a bachelor's in history, as someone like me once did, what your institution can allow for cost of attendance, what you can borrow up to is not set by what that institution itself sees as a reasonable expenses, but what the median average of that program across the country is. So obviously, that is going to look very, very differently from campus to campus, and it is a federalization of a process that has always been institution specific and has allowed institutions some flexibility and some authority to set what they think is the appropriate levels.

There's some other things. They completely eliminate the Supplemental Educational Opportunity Grant program. And then maybe the one that's gotten the most attention, and that I think, Tom, when you're talking about how do you talk to people about this, is the risk sharing proposal. And this essentially would say that institutions are responsible for paying back to the federal government on an annual basis, a percentage of the unpaid loans of their former students. So these are students who have left campus, graduated, or not graduated, but are now in repayment, depending on that student's status, basically they break it up to undergraduate students with a degree, undergraduate students who didn't complete, and graduate students, you pay a percentage of their unpaid loan volume, the loan volume that has not been repaid. Estimates put that number as over $2 billion annually. That is a large sum of money for schools to send it back to the federal government.

I also would note risk sharing proposals aren't new. In fact, Chairwoman Foxx has proposed risk sharing proposals in the past, similar in many ways to this one. Others have proposed that there have been bipartisan proposals we have looked at these proposals time and time again. And when you run the numbers and you look at the individual institutional impact, and Sarah, we're hoping to do that again and share that with people so they can see the impact of this proposal, what you tend to find is overwhelmingly institutions that serve larger numbers of low-income and first-generation students tend to have the highest risk sharing penalties, and those institutions tend to disproportionately be the institutions with the fewest additional resources they can provide to soften the blow of having to make a large annual payment back to the federal government.

So there are some real concerns about what this will do to, frankly, the most vulnerable students and the most vulnerable institutions, but it speaks to a lot of sentiment in Congress right now that they don't feel colleges and universities are sufficiently invested in the success of their students. We clearly would disagree with that. I think people who spend time on a campus understand that that's not an accurate assessment of how people work, but that is a view. And a solution like risk sharing, the details matter, and I think show the harm of such a proposal. The more simple version of make them pay if there's not success, well, it just resonates on a simple level, so we're seeing a lot of that. Overall though, I think what you can say is there's ways to do accountability. There's ways to make colleges more deeply invested in their students' success at the institution and afterwards. These are not the right ways to do it. It's misaligned incentives. It's punishing the people who need the most support. We're welcome to have these conversations. We have these conversations all the time. This approach just doesn't get there.

Sarah Spreitzer: The bill's also being messaged very much so as a college cost kind of reduction bill, that if you cap the amount of loans that can be taken, if you limit the ability of people to take out grad PLUS loans, that will really impact the overall cost of higher education as opposed to really limiting access.

So the bill's been introduced. Do we know anything on timing for markup or when it might move to the floor?

Jon Fansmith: We don't. This is one of those... Again, it's important to note it's a partisan bill. Right now, the House is... This is not my editorial opinion. This is just objective fact. The Gouse is struggling to manage legislative business. Is there a possibility this moves through committee and to the floor and for vote? Absolutely, there's that possibility. Is it likely? I think not. And even if it does, this is not a version of legislation that will have much appeal in the Senate. It seems highly unlikely to me that this is kind of bill that would be brought up by Senator Sanders on the help committee, and certainly Democratic leadership in the Senate. So I think certainly Chairwoman Foxx is cognizant of that. I think they are putting forward a bill where we started. They are advancing ideas. They are trying to influence the discussion about what the appropriate is. And some of these things, changes to loan limits, risk sharing proposals are not uniformly partisan ideas. There is bipartisan interest in some of these.

So advancing the conversation may be all they're really trying to achieve at this stage, certainly given the political realities that surround Congress. 27 laws last year, Sarah. So is this the one that's going to move forward? Probably not.

Sarah Spreitzer: Well, we also have questions on a bill that actually passed out of committee last year, which could have more legs to move to the floor more quickly. It's the Bipartisan Workforce Pell Act, which is sponsored by Chairwoman Foxx and co-sponsored by Bobby Scott, the ranking member. Outlooks on that bill when we talked last in December, the really big concern is on the offset that's being proposed. Has there been any discussions or any movement on that issue? And what's the timing on that bill? We got the question from the producer. What does the bill do, Jon? I missed explaining that.

Jon Fansmith: So the bill does something that we at ACE, very much like. The bill would expand Pell eligibility to short-term programs. And it's more complicated than this, obviously, but shorthand wise, think about certificates, especially certificates that lead to training and sort of skills specific areas, education around, especially like career skills and job skills. I think we have, at ACE, been supportive of that idea so long as there's sufficient safeguards in place. This bill has significant safeguards in place as to which providers can be eligible for it, to the point that I think there's now some concern that they may be too stringent, that schools may not want to participate, because it is so demanding to meet the thresholds to be eligible, that's something that I think can be resolved. There's a lot of good faith on all sides here about trying to find the right balance of safeguarding students while also ensuring that good programs are eligible to participate. So that's all to the good.

But you mentioned the offset, and that's where the problems really occur. The offset, and to explain to people, most of you, I'm sure are familiar with this, but Congress has rules about when you introduce a bill that would spend money basically making sure that you are paying for it somehow. And the two basic ways to do that is to either make cuts in one area or generate revenue in another area. And when you do that, that's what's called an offset. It's the pool of funding you are using to pay for the new costs. Your legislation will create. The offset that was proposed, and thank you for noting that it was done in a bipartisan manner with the chair and ranking member of the education workforce as original co-sponsors, would say that institutions that are subject to the endowment excise tax, one, have a more stringent and more costly barrier to participating in the Supplemental Educational Opportunity Grant program. That's the smaller piece of it. The bigger piece is they would say that for those institutions, which we estimate to be between about 40 and 70 institutions, depending on an annual basis, it can change based on the size of institution's endowment, the number of students enrolled, but probably safely between 40 and 50, maybe as high as 70 or so institutions. Those institutions, their students lose eligibility to participate in all federal lending, so not PLUS plus loans, but also Stafford loans, unsubsidized, subsidized. Essentially, a student at those institutions can't borrow through the federal government to go there.

Sarah Spreitzer: That's a huge change. That would be historic. You would basically be saying to students, you're eligible for these loans unless you go to one of these schools.

Jon Fansmith: Well, and that's exactly it. This is clearly a shot at the most selective, best resourced institutions. It is very clearly a post December 5 kind of partisan move. It is intended to send a message. It is a shot across the bow of those institutions that Congress is upset with what they've seen and they want to do something about it, but that is the worst kind of policymaking. You're narrowly focusing on a grievance and you're setting a policy that, look, as a precedent, there's a reason we don't have anything like this. It's because we don't identify distinct groups of institutions and put them in a different status than everyone else. We don't have a system that penalizes students by saying that choice of what institution you want to go to, your need that determines the aid you get, works in some cases, but not in all cases.

It's the federal government picking winners and losers in a way that's harmful to students, and it's most harmful, frankly, to low-income students. And especially think about a low-income student who wants to go to medical school at Harvard or wants to pursue MBA at Penn. These are students who have worked incredibly hard to get to a place where they can pursue this educational goal, and that option is off the table because they don't have a reliable way to finance that. Maybe they can go to the private sector, pay significantly more with far fewer protections in case something happens to them. It's just really bad, bad policy regardless of your feelings about the specific institutions they're going after, which, again, I think we've been clear on this. We don't share Congress's concerns in those areas, but it's just very bad policy. It's even worse precedent. Hopefully, that message is resonating. I will say we have definitely heard from folks that that message is getting across to members of Congress, concerns about what this means for low-income students and their ability to access their educational choices. That's happening.

What will that mean? That's less clear. We think there will probably be modifications to that proposal. We're hopeful that the proposal will go away entirely. Where that will actually land, we don't know. Certainly keeping that the way it is going to hurt its chances of ever going forward in the Senate. But part of this is about sending that message, and so it may be less relevant about how do we advance legislation into law as a consideration here and more how do we make our point? And I think that's what we're looking at.

Sarah Spreitzer: Which is not a great way to actually see bills get passed. Jon, if you're trying to beat that record of, what was it, 27-

Jon Fansmith: 27, yeah.

Sarah Spreitzer: ... legislation. So we have a few minutes left. Do you want to give a quick update on negotiate rulemaking? Or at least we've had questions about what's going on with Title IX? How long are we going to be waiting for that? And then we... Yeah, if you want to... Any insight in your crystal ball, Jon, about Title IX?

Jon Fansmith: Title IX, other people's crystal balls are probably a little less cloudy than mine, but I will certainly repeat what I think is the consensus viewpoint here in DC. People might remember the Department of Education had said last year, beginning of last year, that they would be out around October, these final regulatory packages. And keep in mind there are two. There is the bigger, more comprehensive that deals with campus safety and sexual assault, Title IX package, and then the smaller and much more specific package related to the participation of trans athletes in sports, both at the K-12 and the higher education level.

The department went through all of October without updating that deadline. Eventually towards the end of the year, they announced that they've moved the deadline forward to April of this year. I think most people now, as you talk about it, think that's going to fall further back, at least to the fall, if not until after the election. There's a lot of concern, frankly. There's a lot of advocates who wanted to see the Trump regulations that are on the books replaced at the earliest possible moment, and that is clearly not taken place. But I think the rumblings you get is this can be complicated. This has electoral implications. There are political concerns, as much about the participation of trans athletes piece as about the broader package that is causing some heartburn about moving it forward. So yeah, again, I can't give you a date, but I will tell you what I hear most often, which is we may see something in October closer to the election. We may see something following the election, depending on the outcome of that election. We will see, but certainly not anytime soon.

Sarah Spreitzer: Okay. Well, we also had a question, Jon, about Chevron and the current Supreme Court case, Relentless, Incorporated versus the Department of Commerce, which we looked up before this podcast. So what is Chevron and why should we be concerned about the Supreme Court taking up a court case around it?

Jon Fansmith: Yeah. And I love pretending to be a lawyer. Sarah's laughing as she asks this question, people don't know this, because I really talk about this all the time, and this is one of those things that I feel like I'm trying to explain to people why this is way more important than the level of attention it's getting.

To do a super quick summary, there was a 1985 case that went before the Supreme Court, which essentially is Chevron, the company, was one of the participants in the case. And the case essentially said, look, where there's ambiguity in the law, how much deference do you give to a federal administrative agency in terms of them putting regulations for and making sense of what those legal requirements are? And the Supreme Court in that decision essentially said, you give great deference to the agency. The agency are the experts. If there's ambiguity, they are the people who are best informed to make a decision as to what that actually looks like in practice.

And that has been, since 1985, the law of the land. So we're going back 40 years. What we have seen from this Supreme Court, and there was a case a couple of years ago called West Virginia versus EPA, which was sort of the first crack in the armor of the Chevron precedent, the two cases the court combined her last week, Relentless Inc. versus the Department of Commerce, and Loper Bright Enterprises versus Raimondo. I'm not sure about Relentless Inc. I think they both might be related to fishing specifically, but what they essentially said was they further challenged the ability of the federal government. In West Virginia versus EPA, what the court said was there's something called the major questions precedent, essentially the idea that even if Congress gave an agency the authority to do something, if the agency used that authority in a way that was so massive in terms of its impact, if it impacted so many people, spent so much money that it could reasonably be construed as being beyond what Congress intended, then that regulation is invalid.

You put that context behind this case, which is essentially saying that decisions that are... This is where I might muck it up a little bit, but essentially where agencies are making determinations because of the ambiguity, there is no clear precedent or no clear statutory language allowing for them to require something, they don't have the authority to do it. It's not just if it's so big as to be beyond Congress's intention. But even more narrowly, if it's not clear that they have that authority defined somewhere, they can't do it. Why do we care? Right? Thank you for indulging my attempt to do legal summary. The reason we care-

Sarah Spreitzer: Yeah. Why do we care?

Jon Fansmith: Yes. The reason we care is there's a lot of things happening at the Department of Education that have big impacts where the legislation, the statute is unclear. It's a common concern we've expressed, and people on both sides of the aisle expressed, depending on who the administration is, the Department of Education passes policy through regulation where they don't have a law saying you should be doing this. And if the Supreme Court finds, as we expect them to do, to further limit Chevron and really narrow executive agencies' authority, then things like gainful employment, things like Title IX, things like that, regulations, big impactful regulations, will almost immediately be challenged in court following the Supreme Court's ruling. And you will have an environment in which there will be injunctions nationally or locally where most regulations at colleges universities feel that they need to be in compliance with may become uncertain in terms of their obligations.

It will really be a chaotic environment as to what is the authority of an agency to set regulations and force institutions to comply with them, and it will upturn a lot of what we understand about the relationship between our campuses and the federal government. So that's why we care. That's why we should. It's a big deal.

Sarah Spreitzer: So should we end with chaos, continuing hearings, legislation, which we're pushing back on, but it's going to move forward, and no actual legislation likely passing this year. Does that sound like a good place to end for January? I feel like this was a real downer for people that might've tuned in to hear about what's coming up in Congress this year.

Jon Fansmith: I think you're right. I will say one of my New Year's resolutions is to get our ACE team together and try to think of three happy things that aren't, most of this won't happen to talk about with people because we are some real depressive. Tom Vu just, I saw a check in to say we're agents of chaos, which-

Sarah Spreitzer: I love that, Tom, that's great. I take that as compliment.

Jon Fansmith: I think that's the nicest way to describe what we're doing. It's certainly not by intent, Tom. Anyway, we are a little bit past time. Hopefully you guys have all had as much fun with this as we have had with it, despite the subject matter. We're looking forward to another year of meeting with you all, taking your questions, hearing from you, and really appreciate all the thought and attention you give to us. So thanks again, and we will see you next month for the next episode of dotEDU Live.

*** Upbeat Music ***

Jon Fansmith: Thank you for joining us on dotEDU. If you enjoyed the show, please consider subscribing, rating, and leaving a review on your favorite podcast platform. Your feedback is important to us, and it helps other policy wonks discover our show. Don't forget to follow ACE on social media to stay updated on upcoming episodes and other higher education content. You can find us on X, LinkedIn, and Instagram. And of course, if you have any questions, comments, or suggestions for future episodes, please feel free to reach out to us at We love hearing from our listeners, and who knows, your input might inspire a future episode.

About the Podcast

​Each episode of dotEDU presents a deep dive into a major public policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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