Disclaimer: This transcript is provided for informational purposes only. While efforts are made to ensure accuracy, please note that it may contain errors or omissions. For the most accurate information, please refer to the original recording.
Mushtaq Gunja: Hello, everybody, and welcome to another episode of dotEDU, the public policy podcast from the American Council on Education. My name is Mushtaq Gunja. I'm coming to you from bucolic, fabulous, humid Washington, DC. Here with my co-hosts Jon Fansmith and Sarah Spreitzer.
Jon and Sarah, how are you guys?
Sarah Spreitzer: Good. I thought you were going to be more specific and say the fabulous eighth floor of One Dupont Circle, since we're all on the same floor now. Our listeners really want to know that, our location.
Mushtaq Gunja: And get to see Jon Fansmith again, who we haven't seen in-person in several weeks, months. Jon, we missed you.
Jon Fansmith: Weeks, weeks definitely. Months, I would hope you'd notice if I'd been gone for months.
Sarah Spreitzer: I was going to say, I didn't realize Jon was gone.
Jon Fansmith: Oh, wow. That hurts.
Mushtaq Gunja: We are in month seven of the Trump administration. Maybe it's just the weeks feel like months, the months feel like years.
We're going to do a very special episode today, where we are just taking and asking questions from our listeners and our watchers. Please put questions, as always, in the Q&A if you have them. We received dozens of questions in advance. I think we're going to try to do something slightly different too, not just on the question asking. But we've spent so much time over the last few episodes really trying to dive deep into reconciliation, and the One Big Beautiful Bill, et cetera, every small provision. I thought maybe we could zoom out, at least to start, and maybe just ask a couple of high level questions.
Nathan asks, in advance, "How can we minimize the negative impacts in the attacks on higher education, and how can we weather the storm?" Jon, Sarah, I guess maybe that question slash how are you feeling right now as we enter the second half of this first year of the Trump administration?
Sarah Spreitzer: Well, Jon has had all the time to think on vacation, so I'm sure he has really big answers on this. I'll let him go first, but I do have some thoughts.
Jon Fansmith: I will say I probably thought about higher ed less while I was on vacation than I have at any point in the last seven months. But you know, it's actually worth pointing out because, even if you were trying not to be thinking about higher education policy, every newspaper, everything, there's a lot going on. I think that actually speaks to Nathan's point. We're in a pretty important moment where we are the focus of a lot of energy and attention, and very little of it from the administration at least positive. How do you focus on your mission?
I think there's a couple things that comes to my mind. The first is that a lot of schools are already doing that. We are this far into it, the attacks have been unprecedented. They have been both very targeted and very widespread in different areas. Sarah, certainly you know that on the research side, the international student side. But I have seen a lot of schools that are dialing in. They're focusing on what they're doing. They're not letting the noise impact them. They're working with their communities and their constituents and telling their story, and they're doing that in the right way. We see that on the lobbying side, we saw it through reconciliation.
I think it's really a challenging time. I think it's worth schools asking hard questions because one of the things we've seen is this fear of what the administration might do and what that means for your campus, and the kinds of choices you want to make about your policies, and what you say, and how you do things. It can be hard to say, "We have a mission and we believe this is the right thing," but it may invite scrutiny and everything calibrates that differently. I certainly think we are turning a corner in some ways with people beginning to say, "Look, the risk is there, the risk is out there, the threat is there, the threat is out there, but we can weather the storm by staying true to what we are, by doing what we do. What we do is valuable, the public by-and-large understands that and appreciates that, despite the noise."
I don't know if Nathan's looking for specific steps, because I don't know that I have any that would work across every campus, and nor should they. This recommitment to the mission of higher education and the mission of your institute, and the reason you got into the work in the first place. Why you care, how you serve students, how you work with colleagues, how you advance knowledge, the research you generate. It's never been more important to focus on that and evangelize that message throughout the community.
I'll stop rambling there. I'm in a vacation mindset, I'm not very targeted. I'm sure Sarah will add much more concision and clarity.
Sarah Spreitzer: Yeah, since I have been thinking about these issues for the last two weeks, Jon. I think I've been telling people to be flexible, which is something that you don't think about higher ed being is flexible. But I think coming out of COVID, we've had some experience doing this and I think that the leaders of our institutions have demonstrated that they're able to pivot when there's a threat in one place.
Part of it is it's that the threats are coming from everywhere and I think that that is really difficult to deal with, and why some people are taking two weeks off for vacation. I think being flexible, and perhaps doing some tabletop exercises. What would happen in the worst case scenarios if you don't have any international students next year? What would happen if you're going to see research funding cut by 50 percent for the next two years? What does that mean for planning?
I told Mushtaq I was going to give a shout-out to the Society for College and University Planners, who I just spoke to last week at their conference in Hawaii. They have a really good strategy planning document. But as the planners for their campuses, they're all thinking, "How is this going to impact our budgets this year? Three years from now? Five years from now?" When it comes to where are we doing the buildings, how are we planning. If we're going to maybe pause on investing in one sort of research, but maybe giving some money to AI or quantum computing, or other things that get taken up by the new administration.
Look, I think we're very well suited to do that. I think it feels like there's unending threats right now, but I know that we're going to come out of this. Probably stronger than we were before.
Mushtaq Gunja: Do you have ... There's a couple follow-up questions that folks are here looking for a little bit of hope. Let me ask it in both ways. What are you most hopeful about over the course of the next six months, as you see what's happening in the public policy landscape, what you saw happening over the last six? Then what are you most worried about that's coming up? I have answers to both those too, but I'm curious where your guys' heads are.
Sarah Spreitzer: I would say I'm most hopeful that appreciation for higher education and how much we do, not just on our campuses, but for the community, for the U.S. taxpayers is going to be much more recognized once those kinds of activities stop being performed by our institutions. I think that we may have a chance to turn some of the dialogue that's been happening over the past few years about the value of higher education, I'm really, really hopeful about that.
For what I'm worried about, I'm just worried that this is just not going to stop. It's hard to see when we're going to start seeing those research dollars returning, stop seeing attacks on things like accreditation, or new regulations coming out. At what point are we going to hit the threshold where it starts swinging back? And I don't know.
Jon Fansmith: Yeah, I would echo actually what Sarah said. I think the hope is, and I do see a lot of signs of it, the public doesn't like what this administration has been doing to higher education. When you asked them about it, there were a lot of people, even people who had experiences with higher education, you didn't think a lot about higher education policy coming into this administration. Very clearly, part of the administration's motives are to make the subject of higher education part of a culture war, part of some divide. There's benefit to that. People who don't think about it, don't care about it might hear the stories, might hear your portrayal, and use that to identify with you.
The downside, which I think is what this administration's finding, is by and large, most people's experiences with higher education are positive. They want their kids to go there. They got a better job because they went there. They got skills training or a degree, they did things. They see the value of scientific research. And when it's pointed out to them what a bargain that is for the nation to use our higher education system to drive that research, they get really worried about it being upset. Everybody knows somebody with diabetes, or Alzheimer's, or cancer, and the idea that this research is being disrupted, people don't like that. I do think the administration has overplayed its hand and publicly this is not going the way they want it go to. They know that, too. We know that from reporting and leaks inside, that they see that they're losing the popular opinion on this.
The problem there, which also leads into my concern over the next few months is, if you're fighting the losing battle and it's very, very public, it incentivizes you to go harder. We've seen this from the administration, they've expanded the scope of the kinds of institutions they've been looking at and targeting with these punitive extra legal actions. They've been expanding the range of things they're going after those institutions from. We started with anti-Semitism, then there was gender. Now we're talking about race in admissions or race in hiring. They're really casting about, trying to find something to attack. I do think, especially when you start to see these settlements, reasonable from the institution's perspective, but that they're building a playbook that has very little to do with advancing the interests of students or protecting the rights of students and staff, and a whole lot to do with trying to score political victories. That combined with desperation makes me worried that, even as they lose in the court of public opinion, they're going to double-down on these really problematic assaults.
Sarah Spreitzer: Way to be a downer, Jon.
Jon Fansmith: Well, we started with the good news, right?
Sarah Spreitzer: I want to hear what Mushtaq has to say.
Jon Fansmith: Yeah, Mushtaq, Mushtaq asked us.
Sarah Spreitzer: What is he holding out hope for?
Jon Fansmith: Right.
Mushtaq Gunja: I was encouraged by the news that came out either late last week or early this, I'm not remembering exactly, the K-12 funding that had been held. I think there was some five or seven billion dollars of money that was held that was supposed to go to professional development for teachers, and some migrant education, some English as a second language education. The administration just held it up. Unclear exactly what they were reviewing it for.
I think on a bipartisan basis, Congress put a little bit of pressure on the administration to release these funds. They released them last week. I don't know if they ... I think both sides of the aisle were pretty gracious in saying, "Good job, Trump administration, for doing the thing that you were supposed to do." That's good, I suppose.
I'm wondering if… there's a way in which the administration might be able to release some of these funds, have some of these grant dollars go out, have it all happen quietly. Because, Jon, I think you're right. As I keep saying in these podcasts, the Trump administration did not ... The president did not run on cutting scientific research, he just didn't run on that. I don't think that's what the American people had wanted. There might be a way that they can just take the temperature down a little bit and send these dollars out, the meat of the dollars out.
The thing that worries me of course is whether or not some of these extra legal settlements, whether they'll try to keep doubling-down. I guess on that note, Jon and Sarah, we got a couple of questions in advance about this. What did you make of the Columbia settlement? And what do you make of some of the investigations that we've seen publicly named, things that are happening at UVA or George Mason? Take them in any order you'd like. Why don't we get Jon, and then Sarah?
Jon Fansmith: Yeah. I think first of all, it's really hard to put yourself in the place of Columbia or any other institution and say, "This was the right decision, this was the wrong decision." Especially I think people want institutions to be fighting on behalf of higher education, rather than attending to the institution's specific needs. I understand that impulse. I think the thing that troubles me is not that Columbia made a deal that restarts their research function. By all accounts, what they did was a reasonable, rational way to move past a difficult situation and keep really core parts of the interest functioning. I think that's what you would expect a leader of an institution the people responsible for it to do. They are responsible for the jobs of tens of thousands of staff, and the educational experience of tens of thousands of students.
The problem I see with that is what everybody worries about, which is this administration now sees that as a transaction. That they essentially, by bullying to a certain point, by ignoring what the law requires, forced a resolution they can point to and you saw the messaging they put out around it. "We won. We forced this victory." I think this is par for the course for this administration. They claim a victory where one doesn't really exist, they overstate the significance or impact of that. But we've also seen that now they're talking about going after other institutions. We saw it at George Mason. We've seen it at certainly UVA, beyond what we've already seen at Harvard, and talk about other institutions there. They've built this playbook to do this, which I think is going to say that's all they care about.
Now again, for an institution, it may just be better to pay them off and move on. But it's a really bad thing when your federal government is essentially extorting institutions to get a little bit of money back and to claim a political victory, when again, very little done to address whatever the ostensible reasons for doing it are certainly nothing that's benefiting the students, staff, or research folks at these campuses.
Mushtaq Gunja: It's very odd to see the dollars, a check of $200 million, go to the United States Treasury.
Sarah Spreitzer: Yeah.
Mushtaq Gunja: That's not the way these things typically will work. If there were dollars attached, typically they would go to remedy some situation or to try to improve a situation going forward. That's just not the way that we've seen this happen, it's very strange.
Sarah, what do you think?
Sarah Spreitzer: Yeah. No, I agree with Jon. It's never a good thing in my world when random family members call me about things that they've seen in the news about higher education. I think Columbia and Harvard are two of those examples. It's clear this is on the mind of U.S. taxpayers. I think that is the victory that this administration is taking from it. Not so much that they've had a win to try and force certain behaviors from the institution. I think the bigger win is that they've publicly called these institutions out and it's getting a lot of press, and that they can take that as a victory.
I'm with Jon. I don't know anyone that wants to be a college president right now. Thankfully, we have people that want to do that job, that want to lead our institutions. I think these are really, really difficult decisions to make and I think that they go back to what's best for their institution. I think as a president, you have to think that. You're not leading all of higher education. You are thinking about the survival for your institution, your faculty, your students, your staff. That's always going to be a difficult decision and I'm not jealous in any way of those presidents.
Jon Fansmith: Mushtaq, this may resonate with you, although different kind of legal background. The thing that this settlement immediately brought to mind is what you see all the time if you've ever worked at a law firm that represents businesses or others is they're constantly subject to these nuisance and harassment suits where, on the very flimsy pretense, a lawsuit is brought. The people bringing the suits know you can just file motions, and make it expensive and difficult, and time-consuming, and reputationally harmful for the organization. A lot of times, you get a settlement even though the suit has no merit to it. It's the price of doing business.
I just kept coming back to that example when you saw this. This is every day, the administration announces some new attempt to limit something at Harvard or take something away. It really does get this, "We have thousands of lawyers who are on salary. We have unlimited resources to just keep harassing until we get the outcome we want." Even if when it actually goes to a court, the courts are rejecting it. There's no merit to these attacks, or very little in most cases. It really just this pattern of harassment, and unfortunately that works. We're just not used to seeing the federal government wanting to employ this kind of really counterproductive, really harmful approaches to institutions that have been the drivers of our economy and our well-being as a country.
Mushtaq Gunja: Yeah. No, I think that's well-said. Jon, Sarah, the last question on this. I'd love to move us to a couple of other topics. Where do you see this ending? Does this take us ... Does the Trump administration try to do this with 3,927 institutions that are classified in the Carnegie Classifications? Or does this just go to the 20 or 40 institutions that are on everybody's mind? Where does this go? Where does this end?
Sarah Spreitzer: I think it's definitely the playbook that they're establishing. Whether it's a Title VI complaint that is being dealt with by Harvard or Columbia, or whether it's at a small institution, I think they are taking the procedures that we've been used to in past administrations where there's an investigation, you come to the table, there's a good faith negotiation about trying to improve behavior, or address concerns, or address the complaint. I think whatever happens, this is going to establish a playbook that I don't see them deviating from, no matter what the size of the institution is.
Jon Fansmith: Yeah. I will say with only a handful of variations, almost all the institutions they've given particular attention to, there's been well over 100 different investigations announced or launched. Most of which have never gone anywhere after being announced by this administration since they took office across anti-Semitism, and gender, and other areas, race. But what we've seen is the institutions that are getting elevated, the institutions that are getting the most attention, the most direct action, they are located in blue states. They are elite, highly selective institutions. They are very prominent. They are names that the public knows and is familiar with. I think that's what we're seeing. They have been searching for a strategy, and their strategy so far has been to attack, attack, attack, use all the leverage they can, and find what point of access looks like.
As Sarah pointed out, what they've got now is, "We'll be able to wring a check out of somebody. So we're going to move to the next one and we're going to apply pressure until we can wring a check out of them, and then announce a victory. And move on and say we've done something for the greater good." There's not an outcome they want here. What they want is a news cycle. They want attention to say, "We won! We forced schools to bend the knee." When that's your goal and you have the powers that the federal government does, you may not be able to do it for 3,900 other institutions, but you don't need to. You just need to move from one institution to the other, so long as it stays in the news cycle that you're doing thing.
I think that's fundamentally what the goal is. It is not to serve the interests of students, it's not to correct civil rights violations. It's not even to get money. It's really just to say, "We attacked them, they're the bad guys. They're woke. We're going to come back and we're going to fight them." And the people who are trying to influence who are negative toward those name-brand institutions will see that and that will sway them when an election comes around. When that's the case, it doesn't really matter how rational your response is or how well you've done serving your students, or how legally compliant you've been because they're not following the law in the first place and their goal isn't to ensure a positive outcome for students.
Mushtaq Gunja: Well, I guess we will see. Harvard is obviously fighting this in court, and other institutions have been taking similar steps. We'll see what this all looks like. In my evidence class, I sometimes say that the evidence rules are made in the shadow of negotiations and shadow settlement talks. I think so much of these small court victories I think then change the landscape of what the Trump administration might be able to ask for. We'll have to pay attention to what's happening in the courts as well.
We spent a lot of time talking about the One Big Beautiful Bill, I don't want to dive into the particulars here. But Fred Baumgarten asks, "Is there a way that the harmful actions in the O3B can be reversed, and if so, how?" Katie asked in advance too, "What are your thoughts on negotiated rulemaking with regards to this bill? Do you foresee a delayed implementation?" What's the feature of this thing? How does it actually go from being signed by President Trump to getting implemented? What parts? Do we have some shot at maybe either reversing or delaying?
Sarah Spreitzer: I'll lead off on this since I don't know how far Jon's gotten through his email since being back on vacation. The Department of Education actually did announce that they're going to do negotiated rulemaking around the implementation. They're doing public comments August 7 I believe, and then written comments are due at the end of August. We will obviously be submitting a letter to the department talking about the issues that we think need to be negotiated when it comes to implementation.
Many of the implementation dates are set to take place in July 2026. I think that's when the changes to the loans will start. One of the big questions we've been getting is what is going to be considered a graduate program and what's going to be considered a professional program? I think that has to be decided before you start putting in borrowing limitations or start putting in aggregate loan limits. Those are going to be some of the big questions.
I do think that Congress may look, maybe may look at doing some sort of technical amendments package. At least, that's what I've heard from some folks. If they do that, we may have a possibility of pushing back the implementation date, especially given the fact that ED is operating with half their staff and it is going to be a very big lift to get all of this implemented.
I think we have an opportunity to engage on the implementation of some of these things. I think we have an opportunity to perhaps work around the edges on the implementation dates. But we're definitely going to have to deal with the new loan limits, with the new accountability structure, with the new aggregate borrowing limits. I don't think those are going to go away.
Jon Fansmith: Right. I think Sarah made some really important points there, in particular this idea that there may be a technical fixes package legislatively. Part of it is we know the Department of Education is moving as quickly as they can to do regulations to implement the bill. There's some things, probably not worth going into great detail, but there's a master calendar at the Department of Education that essentially says certain things have to be done for other things to take effect at a certain time. July 1st is the start of the financial aid year. You are supposed to have regulations that may change anything under Title IV in place by November 1st of the preceding year to allow schools and financial aid directors, and everyone else the time to understand what the changes will mean for their students. For the Department of Education to come up with loan tables, and aid tables, and other things so that students applying for financial aid understand what is available to them. It's a system that builds on all of these things.
We're at the end of July, we haven't done that rulemaking. More technical fixes I think are frankly needed, but it may also create a challenge in terms of getting implementation done by the middle of next year. I think that's good and bad. We have a department that's woefully understaffed, rushing to try to implement things. A lot has been made about the fact that financial aid professionals aren't one of the categories that are included in the rulemaking. It does not make-
Mushtaq Gunja: Yeah, Jon, what's up with that? How do you do this without the folks that know what they're doing at the table?
Jon Fansmith: I am not the person to ask that because it makes no sense to me. I will also say I love our colleagues as NASFAA, but regardless of your views of our colleagues at NASFAA, this has been a group that has historically been really good about being neutral and bipartisan in policy implementation. And giving a lot of thoughtful advice and clarity, regardless of administration or political viewpoints. They are respected and important voices to have at the table. I do not know why they would not be there. It seems like a massive oversight to me. But it also adds to the confusion we have here.
My last point on this, I don't want to go on too long, but this is the problem with doing meaningful policy in reconciliation. We had an expedited reconciliation process where most of these provisions we're talking about were introduced in the Senate, and they went from introduction to passage in about a month. That's not a lot of time to think about all these problems. Like Sarah talks about, what is a professional program, what's a graduate program? How do you draw the line? Well, we know what the staff thought and we know what the idea in their head was, they had a clear idea. But when it actually comes to saying, "Well, this particular program falls into one category versus another," that's not clear. In anything you do, there is a million unanticipated questions, not malice, or partisan, or anything else. Just this is really complicated stuff impacting millions of people, time is needed. Not because we want to slow things down, but because we don't want to screw things up.
The way this has been done as a reconciliation bill, the timeframe we're working with, the challenges with the way this administration has handled staffing at the Department of Education, all of that doesn't lend hope that this will be smooth, quick, and easy implementation.
Mushtaq Gunja: In other agencies, the administration has brought people back to help do some of this implementation. Sarah, Jon, have you seen any of that at the Department of Ed?
Sarah Spreitzer: I think some people were brought back and then they were RIFed because we had the Supreme Court decision that said, "No, you actually can lay off half the staff." It's been a real churn. I think at some agencies, some folks were brought back for technical issues. But again, you bring one person back, but not the other four people in the office, how much are they going to be able to get done?
Jon Fansmith: Yeah. This is part of the problem about talk about the federal government as a monolith. The White House has a view that they'd like to see the Department of Education go away entirely, and the Secretary of Education reflects that view. There's probably a lot of people who report to the Secretary of Education and down the line who know the challenges in doing the work the law requires them to do, knows the harm that can come. We saw this with FAFSA. You can create a tremendous black eye for the administration by not doing these things appropriately. There's a lot of people who get that, who understand that, who would undoubtedly like to staff back up with everything that's headed their way who can see the avalanche coming down the hill. It's going to be this conflict between how can you convince the administration, the politicals in the administration that it's in their own best interest to make sure that this goes smoothly as possible. The resources they need to do it includes more people to do that.
Mushtaq Gunja: Sure.
Sarah Spreitzer: I think the people that are left at the department are also scrambling to figure out what their instructions are coming from the administration, coming from the White House.
I'll give you an example. There's been a lot of questions recently about the Title VI international programs at the Department of Education. They had their own office and then their office was cut. They said, "Well, everything will now go through the higher education programs," which is an existing office. But it's unclear where Title VI is going to fall under and where you ask questions. Then the people that are there are being expected to take on even more work and they don't have that expertise. Play that out across 100 division at the Department of Ed and it's just very chaotic I think.
Mushtaq Gunja: Yeah. Speaking of the Department of Ed, Steve at Augustana College asks in advance, "What's the outlet for potential rulemaking versus sub-regulatory guidance for Title VI and other civil rights statutes on the radar?" What are you guys seeing there? Do we have more rulemaking on the horizon?
Sarah Spreitzer: I have an opinion, but it might be wrong. Why do rulemaking when you can just do it, take it to court, see if it stands up? Then it's the new rule. Rulemaking, it takes such a long time. I could think definitely for Title IX because they did have the Trump era rules. But again, there's so much effort that's put into rulemaking. When you're operating with half the stuff, why not just go back to tell everybody, "You have to follow the original Trump Title IX rules?" Or, "We're going to carry Title VI out this way. If it gets tested by the courts, it gets tested by the courts."
Jon may know more. Maybe I'm completely wrong. Tell me about it. Am I wrong here?
Jon Fansmith: No, no, I don't think I know more. My cynical response was if you're not following the law around civil rights anyway, why regulate?
I think we'll see more regulations, I think we'll see more regulatory efforts. If you're watching this in late July, you probably know that the regulatory process at the Department of Education is set up in such a way that the department has really great control over what the outcomes will look like. Part of that is who they invite to the table, part of that is requiring unanimous consensus among all the negotiators to advance something. I think you look at certain things, they will want to do a rulemaking process so that it gives them some additional legal support for things that they would like to implement, that they would like to survive into another administration.
Title IX was the first one Sarah brought up. I think that's a really interesting one to talk about. Right now, the courts have essentially said, "The first Trump administration's Title IX regs are in effect nationally." It blocked the Biden regs. But what those first round of Trump administration regs didn't do was include a definition of gender that comports with the new executive order that this version, this term of the Trump administration. That would be the sort of thing that you would expect them, not necessarily that I want them to, but would expect them to want to put into regulation and codify that. To see, again, something out there that they can use to further influence how they push investigations against institutions, give them some legal support and credence to these efforts we've seen at the state level, especially in California and Maine, going after states' rules. I think that's the kind of thing I would absolutely expect to see more. There's been so much going on and it's hard to run a rulemaking process generally, very technical. Given everything else on their plate, not a shock that they're rounding into the regulatory side of it.
Sarah Spreitzer: I have a question for Mushtaq though, as our resident lawyer, podcast lawyer. In the first Trump administration, we saw a lot of cases brought against the administration that cited the Administrative Procedures Act, APA, that they hadn't followed APA procedure. I haven't seen as many cases based on that issue. Most of the cases seem to be this goes beyond the statute. Is there a reason for that? Is that a signal that the way that the Trump administration is implementing some of these things, they learned from the first administration and now they're being implemented in a way that is APA-compliant?
Mushtaq Gunja: I think that the Administrative Procedures Act, when I talked about it, I immediately put everybody to sleep.
Sarah Spreitzer: Oh, I'm sorry.
Mushtaq Gunja: I'm worried that we're about to lose half of our audience.
Sarah Spreitzer: Okay, apologies.
Mushtaq Gunja: But no, Sarah, no, they definitely are not following the law. You can see the way that they haven't when we look at what they've done visa vie Columbia and Harvard. There are processes in place to do investigations. When the administration does not follow those processes, they are in violation of the Administrative Procedures Act. A lot of these cases have at least part of their three, four, five claims of relief, a violation of the Administrative Procedures Act. Many of the temporary restraining orders that we've seen across not just in education, but across the broader spectrum, are some violation of the APA. They just aren't sexy, so they don't make a lot of headlines.
That said, you can always settle your way out of these sorts of lawsuits. Sarah, you asked, why go through a negotiated rulemaking when you can just make the rule and go fight it out in court? Perfectly good question. Theoretically, the negotiated rulemaking process is there to be able to help buttress your arguments in court. If you've already gone through and clearly considered all of the downstream effects, not only have you complied with the Administrative Procedures Act, but you're likely to have stayed within the statute and followed the law.
You can roll the dice and not do that in any number of cases. We have seen over the course of the last couple of decades when administrations try to do that, they often will get blocked in court. Now, there's a lot going on here because part of the reason that some of these cases were blocked in court was the idea of single-district court preliminary injunctions that would then have the effect of a nationwide injunction. The court has obviously pulled that back a little bit. I think we'll have to see. There are pros and cons from the Trump administration's point of view, going through some sort of rulemaking.
One thing I'll say is when I was in the Department of Ed, I think we had three or four rulemakings go on at one time at the very end of the Obama administration. God, it almost killed the staff. It was insane amounts of work.
Sarah Spreitzer: Yeah.
Mushtaq Gunja: Now they've got half the staff, maybe even less than half the staff in OPE. I don't know how they can do multiples of these and try to implement as we talked about, many of these provisions that they care about in the O3B.
Sorry, long answer-
Sarah Spreitzer: Well, thank you.
Mushtaq Gunja: ... to a short and right question.
Jon Fansmith: Mushtaq, I don't know if you were watching the chat, but people are saying they'd love to hang out with you and talk about all the stuff you think is boring because they seem fascinated by it.
Mushtaq Gunja: Yeah, Jon-
Jon Fansmith: Maybe we'll have to have a little specialized Mushtaq dotEDU Live Coffee Talk or something.
Sarah Spreitzer: An AMA Mushtaq.
Mushtaq Gunja: There is no chance that that's actually happening in the chat, so I appreciate that, but thank you.
Jon Fansmith: We will save the transcript, Mushtaq. I will show you.
Mushtaq Gunja: Hey, can I turn us to accreditation? Peter asked in the chat, this is an actual question, "Can you please talk about what's anticipated regarding accreditation, both new ac creditors and the recognition of the traditional regionals, now that the recognition meeting was canceled then pushed to the fall?" Then anonymous in the Q&A asks, "States are now passing laws related to accreditation and DEI. Are we watching? Are we able to provide some information about the effects of this?"
We've gotten a lot of questions over the last couple of months. What's going on accreditation-wise? Sarah, Jon, what is going on accreditation-wise?
Sarah Spreitzer: Jon's better ... Yeah.
Jon Fansmith: I also wanted to say hi to Peter, because Peter, I don't know if either of you worked at ACE with Peter, but Peter is a great former ACE colleague and just a great higher ed person. Not surprised he would also be digging in on accreditation.
There's a lot happening in accreditation and I think in terms of what's going to happen, that's still not so clear. In part, because there is a lot about our accreditation process that relies on statute and those statutes haven't changed. There were efforts to make changes to accreditation in various pieces of legislation that have been advanced, but have not gotten through the House in particular. But the environment we're in is, without going into too much history, there has been a long-running theme, particularly among Republicans, that accreditation isn't working. That it is a cartel is a term, a monopoly that's used to either protect existing institutions' access to Title VIII, or to keep out other institutions or alternative providers from getting access to federal financial aid. That it stifles competition, it stifles innovation, and that what we need is some new system of accreditation to take over.
I think, I will say just my opinion, those are really inaccurate and a misleading description of the accreditation system. The accreditation system fundamentally works really well and works well in the way that it is a third party outside of the federal government and outside of the institutions themselves. That is focused on what it should be, which is quality and improvement at institutions. They, frankly, if you look at the accreditors' track record, have been much more aggressive in calling out institutional poor performance than the Department of Education or Congress ever has. In fact, there's been a number of times where political pressure has weighed on accreditors to try and restore very harmful changes that accreditors were imposing. Harmful in the sense of bad actors being driven out of the system.
I've wandered without even answering Peter's question for a while. The things we have seen twofold that he asked about. One, is that it was announced that a group of research or public institutions in the Southeast were going with funding from the state of Florida to create their own accrediting body, essentially looking at standing up their own accreditor. This has gotten a lot of attention, understandably so, because it would be a direct challenge to SACSCOC, the historical regional accreditor for that region.
But I go back to the fact that what an accreditor has to do is stipulate it in law. You can start a new accreditor institution. Now, the three of us could start an accreditor now if we wanted to, and we have to get institutions to switch to us, we would have to follow the laws. This in and of itself isn't particularly meaningful. What I think is meaningful about it is you are seeing this idea of, in substantive ways, challenging the traditional authority of the regional accreditors. What will come of that? There's a lot of political motives here, with DeSantis as governor of Florida, with dissatisfactions the Florida government and the legislature and the governor have had, with SACSCOC in particular that a lot of this reflects, you're not seeing it in other areas. We'll see where it goes.
The other piece of this is this delay of the next NACIQI meeting. Again, I don't want to go too deep on accreditation, but NACIQI is the committee that oversees the accreditors for the Department of Education. They review the accreditors on a regular basis. Then they recommend to the department that accreditors continue to be recognized, essentially that they can perform their functions and that's meaningful for the award of Title IV aid. They were supposed to have had their meeting earlier this month. The department announced they were pushing it back into the fall.
You can read that a couple different ways. The administration hasn't really offered a rationale for it. But the widely-held suspicion is the six members of NACIQI, that committee who are appointed by the Biden administration, their terms will expire at the end of September. By delaying, what you do is you allow the Trump administration to stack the committee with more of their people, people with their viewpoints. The reason that is particularly worrisome is that we have seen these efforts with both Columbia and Harvard, where the administration has reached out to the accreditors of those institutions and told them they believe that those institutions are in violation of the law, and therefore should be in violation of the accreditor's standards. If you were pushing the process back to allow for more political pressure to be used, both on the accreditors and on the institutions through them, and then beginning to stack the deck with people who will support that process, rather than looking at accreditation as the quality assurance process it should be, obviously you can see some bad outcomes coming out of that.
Hopefully, that's not too much on accreditation, but just enough to cover the questions you asked, Mushtaq.
Sarah Spreitzer: I would just add, NACIQI is the funnest name of any of the federal advisory committees. NACIQI.
Mushtaq Gunja: What do you think ... Just to stay on accreditation. I know you want to move us, Jon, but just for one quick second. New accreditors coming on, potentially a little bit of pressures at the NACIQI meeting on the existing accreditors, what does this mean for our institution? The vast majority of our institutions here certainly have academic and other quality at their heart. Certainly, we're on a path, our institutions are on a path of continuous improvement. What's in this, what should our institutions be worried about if new accreditors come on, if anything?
Jon Fansmith: I don't think new accreditors should cause a lot of concern for institutions. You could reasonably argue more accreditors allows institutions the ability to work with groups that understand their mission and their purpose, and reflect their circumstances. There's a little bit of a concern about, and we've seen this with particularly in the national accreditation space in for-profit institutions, that there were some really bad actors who the accreditor for those institutions was not rigorously implementing the standards, was not enforcing reasonable quality. You worry about this idea of states being accreditors, which is an idea that's been proposed. That you'll have jurisdiction shopping, that the worst actors can find the places that will be most tolerant of bad behavior. I think that's reasonable. Again though, what are accreditors supposed to do? That's an issue with the accreditor and the recognition of those accreditors. That's not necessarily a change in the law or changing what's required of them.
I do think particularly where we've seen the biggest impact for institutions is around DEI. A lot of the dissatisfaction with the accreditors is the accreditors have what I think most people consider pretty mild standards that include things like you will not discriminate, and that you serve a diverse population, that that's reflected in your practices has been part of a lot of the regional accreditors, and the national accreditors, and specialized accreditors standards, there's been a lot of push on that. Your point about this delay back and changing the composition of NACIQI, that is front-and-center the one where there will be efforts to force accreditors to change what their standards are. Around diversity is not something that's encapsulated in the statute, so it's not protected by law.
I certainly think that will be the biggest impact area for institutions we'll see. But again, it's probably going to be a little bit diffused because it's going to be coming from the federal government to the accreditors, and then the accreditors back to the institutions, so a little bit down the road.
Sarah Spreitzer: This feels to me like Jon is volunteering to go to the NACIQI meeting in September.
Jon Fansmith: Look, I'm with Mushtaq. The stuff that I think a lot of people would find boring, I find fascinating. I've watched NACIQI meetings.
Sarah Spreitzer: No, you have to go in-person this time.
Jon Fansmith: Well, that might be a little tough, but I'm open to it.
Sarah Spreitzer: Okay, I'll remember it.
Mushtaq Gunja: Yeah, Jon will do it. I sat through that ICS NACIQI meeting back in, gosh, I think it must have been the summer of 2016. Fascinating. That was a cool couple of days. If anybody in our audience is going to be there, email us and one of Jon and I will be there, how about that?
Sarah Spreitzer: Maybe we can live tweet, live tweet from NACIQI.
Mushtaq Gunja: Yes, live tweeting. That's the future of the dotEDU Podcast.
Sarah Spreitzer: Yeah.
Jon Fansmith: I'll have to give you access to the ACE account since I'm now off X. I'm open to it.
Sarah Spreitzer: We can make that happen.
Mushtaq Gunja: Sarah, I ran into you in the hall on our beautiful new eighth floor yesterday and asked what was on your mind, and you were worried about rescissions. We have a couple of questions from the audience about rescissions. Broad question. Theresa asks, "Is there anything in the new rescissions bill that affects higher education? What dollars are being caught up right now that you're worried about?"
Sarah Spreitzer: Yeah. Before the House left for their recess, they passed a rescissions bill that clawed back funding FY-25 funding, which I don't think had been expended. But basically, defunding NPR, PBS, and I believe USAID, which are all actions that the administration has already taken.
I will say I love the fact that Congress constantly makes me a liar because I had just spoken to a group of people where I said I didn't think that the rescissions package would pass, and then the next day, it did pass. But I think that that is not a good sign, because Congress, they passed a continuing resolution to keep the federal government funded at the same level as last year back in March. They passed it without a lot of fanfare. Therefore, the administration was supposed to spend at the same levels that they had spent the previous year, which is President Biden's budget. The administration obviously didn't agree with that, so they were making cuts, like to USAID and to other agencies which were being tested by the courts.
One of the things is that they have to spend out the funding by the end of September, otherwise they're going to run counter to the Impoundment Control Act, which says the administration has to spend the money that's appropriated by Congress. We've had one rescission package pass. We believe that there's another rescission package coming that would probably put into statute so of those funds that they've held back.
I think, Mushtaq, you started the podcast by talking about some of those funds being released at the Department of Education. I think that that was somewhat hopeful because obviously, that's not likely going to be included in that rescissions, the next rescissions package. But we have heard that they would likely include funding that was meant for the National Science Foundation, for the National Institutes of Health. We're also at this time when Congress is considering funding for next year, for fiscal year 2026. What does that mean if Congress appropriates, but then the administration second guesses and says, "Well, no, we're just not going to spend that money?" Or Congress is going to support this claw-back of something that, just three months ago, they had passed.
There's some talk going on about something called a pocket rescission, which basically is a bill that's sent to Congress and if they don't act on it, it automatically goes into law. I'm not as familiar with that process, I've never seen it carried out. And in fact, some members of Congress, including Republicans, have said that they don't believe it's actually constitutional. But yeah, I think that we're likely going to see something in August that's going to be some additional cuts to this year's funding.
Mushtaq Gunja: Places for us to lean in, Jon, for our institutions to try to lobby? What are you most worried about higher ed wise?
Jon Fansmith: Well, I think there's a couple things to unpack here too, and Sarah did such a good job. But if there are rescissions put forward that are cutting funding and the things we have heard talked about are not to the level of some of the concerns we've heard, whole programs and other things, like the idea of getting rid of SEOG. It really is portions of funding that haven't been allocated yet. But I think that's exactly the place for us to be weighing in. To be clear, we have been and we will continue to be. But really, for the public to weigh in and say, "This is what actually gets funded."
I was laughing a little bit. I think somebody in chat said something about me "smirking in the background" at your coffee lunches. But I was smirking when Sarah was talking about this because there is an element of Congress hasn't really worked on pocket rescissions because we've never experienced wholesale disregard for the appropriations process. We haven't been in this situation. Rescissions have only ever been used to make minor, targeted cuts to funding based on changes in the circumstances since the Impoundment Control Act was put in place 50 years ago. We don't know and Congress doesn't know what this looks like because they haven't done it.
It's more frustrating, frankly, that Congress willingly gives up their Power of Person Article One to enforce the administration to do it, but that's where we've been so far. We will see, but we're still talking about what of '25 funding will be appropriated. The fiscal year '25 ends on September 30th. It just adds more to this chaos and confusion about what are we going to do for funding for FY-26, when we don't even know that the funding for FY-25 will go out?
Mushtaq Gunja: We have just a few minutes left. I wanted just to ask about international students. I know this is an enormous topic to try to tackle in five minutes. Jill Murray at NAFSA asks, "What can institutions do to effect visa and immigration policy before fall enrollment is negatively affected?" Huge question. Sarah, advice?
Sarah Spreitzer: Well, I would turn that question back to Jill Allen Murray and tell everyone to get involved with NAFSA, the Association of International Educators because they are amazing advocates for our international students.
We're watching really closely, visa processing, because they had paused student visa processing across the globe for around a month while they instituted a new social media vetting policy. This is going to require every international student that's applying for an F, J, or M visa, for the consular officer to actually do a review of that applicant's social media. There's not a lot of information about how much burden they assume that this will be or how long it would take the consular officer. But given that we had a four-week delay when we knew a lot of students were trying to get appointments for their student visa interview, and then we know that they're implementing this new policy, I think the big concern is delay for the fall. Are we going to see students getting their student visas processed in a timely manner? And we will see an uptick in denials?
I was just speaking to someone at Universities UK earlier this week and she said that they're watching really closely. Are students from the UK going to be granted their visas to study in the United States? And will this policy be applied unevenly? Perhaps they're going to do more of a social media vetting process on students, say coming from Middle Eastern countries, but from Europe, it's a quick scan and then you get a stamped visa.
I don't know, Mushtaq, I am not hearing a lot from institutions. I think they are trying to be realistic that some of their international students may not get here in time for the fall and they are offering flexibility to those students. We'll really know in November when we get a survey of institutions that's released along with the Open Door Report that will tell us what our international student enrollment looks like. Open to hearing from institutions if they are hearing about delays from their international students trying to get here.
Mushtaq Gunja: Jon, anything to add on international students? Anything that we can be, should be doing?
Jon Fansmith: No. I think there's a lot that institutions have been doing that I've been encouraged by, by reaching out to those students and making them know that they're still welcome. But it is really hard in this climate with the administration and the messaging they've put around our relationship with other countries and their views on higher education, to overcome that if you're an international who is already taking a huge, and difficult, and challenging step to consider the United States and moving across the world to study here when you see that rhetoric. Schools are doing what they can. I've been really proud of our schools for what they've done in this space. And groups like NAFSA, too. It is a tough time obviously for those students and you feel for them.
Mushtaq Gunja: Yeah. Well, hopefully the spigot will be turned back on. Obviously, we'll have to wait until November for the final numbers, but we'll know a lot as freshman orientation is just around the corner.
Jon Fansmith: Can I say one-
Mushtaq Gunja: Of course. Please, go ahead, Jon.
Jon Fansmith: It is worth saying, it was just a thought that occurred to me. I've seen a lot of talk about how significantly this will impact our relationships with international students for a long time and I certainly understand that. I would just say the first Trump administration, partly due to COVID, partly due to their policies, we saw declines in international students. But in the last administration, we hit a record year, followed by another record year in international student enrollments, so I do think there is at least hope that some of this can be undone once we're past this administration. But I realize we're in year one right now, so that's more of a long-term reason for optimism than a short-term reason.
Sarah Spreitzer: Yeah. You know, Jon, I would add to that that I think that even if our federal government is perhaps sending unwelcoming messages, I think our institutions send very welcoming messages. And beyond our institutions, I think our communities are very welcoming to international students. I think that's one of the reasons we saw that uptick from the first Trump administration post-COVID is that we've never stopped welcoming our international students. I do hope that they will, even though it's difficult, I hope they'll still be coming to study here.
Mushtaq Gunja: Well, I'm biased, but our institutions are the best in the world. The amount of knowledge capital, everything that one gains from coming here and being able to study with our students at our universities, it's immeasurable. Yes, hopefully this is a temporary blip and hopefully Congress will put some pressure on the administration too, to have our campuses be full in the fall.
Friends, we are at time. Jon and Sarah, you've got 15 seconds worth of inspiration and hope you want to give the audience?
Sarah Spreitzer: I'm going on vacation for two weeks, so it's up to Jon to keep the trains running.
Mushtaq Gunja: Oh, boy, Jon.
Sarah Spreitzer: Good luck. Good luck to the higher education community.
Mushtaq Gunja: Huge shoes to fill. Can you do it Jon?
Jon Fansmith: After all the shots she just took at me about taking my vacation, I like that her sign-off is see you in a few weeks. Look, something like 1,000 people joined this session today at the end of July because people care, and they're motivated, and we're seeing that. It's hard to always feel like that when you read the paper and you get the perspective you do, but we see a lot from across the country. Just thanks to everyone who participates here for all you're doing on your campuses. It really does matter. To the extent that we have victories, that the worst is not happening, it's because of all of you. Thanks.
Mushtaq Gunja: I can echo those thanks. Thanks for the wonderful questions in advance and keep them coming. We will see you sometime soon. Hopefully everybody here is about to go on vacation before the students come back in the fall. Thanks, everybody.
Sarah Spreitzer: Thanks.
Jon Fansmith: Bye.