Mushtaq Gunja: Hello everybody, and welcome to another episode of dotEDU, the Public Policy Podcast from the American Council on Education. I'm your host, Mushtaq Gunja, along with my co-host, Jon Fansmith, Sarah Spreizer. How are you two today?
Sarah Spreizer: Awesome.
Jon Fansmith: I'm waiting for Sarah to speak. She's the one I'm interested in hearing how she's doing.
Sarah Spreizer: Well, I've been sick for two weeks, so I just assume everything in the federal government arena is running super smoothly. Jon's taking care of the DHS funding bill. Everything is just smooth sailing for higher education going forward.
Jon Fansmith: Honestly, Mushtaq, it's weird. We've never had a smoother two weeks in the last year and a half than we have over the last two weeks. I don't know what the-
Sarah Spreizer: Right.
Jon Fansmith: Maybe there's no correlation. I don't know.
Mushtaq Gunja: Sarah, for real, how are you feeling?
Sarah Spreizer: I'm better. Thank you, Mushtaq, for actually caring. Thank you so much.
Mushtaq Gunja: And we are here not just with my favorite co-hosts, but with special guest friend of the pod, at least second, maybe third, fourth?
Peter: Something like that.
Sarah Spreizer: I feel like he's a five-timer.
Mushtaq Gunja: Ooh.
Jon Fansmith: Gets a jacket.
Sarah Spreizer: Yeah, he gets a jacket now.
Mushtaq Gunja: And we have Peter McDonough, ACE's General Counsel, former General Counsel at Princeton, the person who has been leading ACE's litigation strategy, honestly, the strategy of the entire sector. Peter, we are so happy to have you on. We're going to ask you a bunch of questions, but we especially are having you on because we're going to spend the latter half of today's episode talking a little bit about student voting and what is happening as we lead up to election day, election months as these things now are in the fall.
But we were hoping to talk a little bit about some recent developments, things that have happened in the last couple of weeks, including the president's budget announcement. There's a new college athletics EO. Late breaking news, Jon, I don't even know if we've talked about this. We want to talk a little bit about what happened with accreditation last night and the paper that came out, the white paper that came out from the department. And then, there was another EO about government funding in diversity, equity and inclusion. So lots to get to.
But before we get there, it is April 7th. It is 1:02 for those of you who are listening to this on podcast, and we are at war with Iran, and today may be an important day in the development of the war. And of course, we haven't talked a lot about this on the podcast, but of course, the war has all sorts of effects on our colleges and universities, including those that have campuses in the Middle East, the UAE, and elsewhere. And there are other effects that our students might be feeling here on campus. Sarah, I know you've been tracking all of this closely. Just wondered if you had anything that you wanted to say about where we are and how our colleges are dealing with all of this?
Sarah Spreizer: Yeah. So I don't know, Mushtaq and Jon, if you remember, Iran is actually one of the big senders of international students to the United States. We currently have over 12,000 Iranian students here in the US who have chosen to travel to the US, often at a huge financial cost, getting a visa, because obviously I don't believe we have an embassy in Iran. And they are here studying on our campuses. But because of the current travel ban that's in place, they can't leave the United States. They've also been stopped from proceeding with any change to their immigration status. So for instance, if they were in the process of trying to get a green card, that has been put on hold because of the current travel ban.
And I know at times like this, I'm always proud of our institutions for stepping up to support our students. And I've noticed many of our campuses putting up resources specifically for Iranian students. And during times like this, we often rely on our colleagues at Scholars at Risk that have scholarships and fellowship support for students who may have seen their financial situations change due to the war or are looking to be able to remain in the United States because they're unable to return. So we will continue working with our institutions to support those students who are here. And I know our institutions that have campuses in the Middle East are monitoring the situation very closely, and we will continue to provide support as much as possible.
Mushtaq Gunja: Jon, anything you'd like to add?
Jon Fansmith: No, I mean, it's certainly a period of great concern. Iranian institutions have been bombed, and the Iranian government threatened to attack Education City in Qatar in response. It's, obviously goes without saying, incredibly unfortunate that we've seen this escalation into these areas where I think historically have been understood to be separate from government policy and other things and worth preserving on both sides. So definitely a lot of concern for our friends over there.
Sarah Spreizer: And Mushtaq, remember when we did the live podcast at ACEX back in February. We actually talked about we could be at war with Iran by the end of the week, and what would that mean for our international students? And we were. And so, it's been an ongoing issue now for a while. I think it's causing a lot of uncertainty for our institutions and our students. But again, I see our institutions stepping up to support those students as much as they can.
Mushtaq Gunja: Yeah. Thank you, Sarah. And of course, we'll keep everybody monitored. And if we hear anything about the way that the international student processes get affected either from Iran or from elsewhere in the Middle East, we'll of course let everybody know.
The other big news... That was somber and sad. The other much more positive news this week was, all things Artemis, which I've been obsessed with, I guess, us setting the record for having the humans farthest away from earth, at least as far as we can tell. I don't know about UFOs and all the rest. And just made me wonder how much our colleges and universities contributed to this effort? Not surprising to anybody on this call or listening to this podcast, a whole heck of a lot. Medical and engineering spacecraft system research at UC Boulder that was super helpful in all of this. Morehead State University has been working with NASA closely and they're tracking all of this with, I guess, a 20-meter antenna that's been super contributing to all of this. Texas A&M University, all sorts of external hardware testing that was done there that contributed to the spacecraft. Our colleges and universities are integral, of course, to all things NASA and to all things that have contributed to all this.
And I feel like I haven't seen as many stories about how our colleges have contributed to Artemis as maybe I would like. But it just segues maybe awkwardly to the Trump budget proposal for 2027, which has cuts overall to many things with... I guess, let me put it this way, 42% proposed increase in the budget for defense, non-defense cuts by 10%. Debt still grows by 7 trillion dollars over 10 years, but the Trump administration's proposing 23% cut to NASA, 57% cut to NSF, something like a 13% cut to NIH. Generally, it seems to be a broad push to shift federal investment away from research, science, discovery toward defense and the military. So Jon, Sarah, Jon, maybe you first, what are the implications for our colleges, universities? What's happening to the Department of Ed? Where are the proposed spending and savings in this budget for us?
Jon Fansmith: Yeah, thanks, Mushtaq. And I'll say the thing I always say at the start of these conversations about the president's budget request, so sorry to all of you who have heard us go through this a few times in the past. But it's important to remember the president's budget request is just that. It is the administration's wishlist of what they want to do with funding. It's not binding in any way. It doesn't require Congress to do anything. And I think this administration is maybe the clearest example of that principle we've had in a long time, because last year, many, if not all of these cuts with a few notable exceptions were included and overwhelmingly Congress rejected them all. There was a much bigger cut, and Sarah will talk about, but 19 billion to NIH last year. Congress actually gave NIH an increase. So it's worth keeping in mind as we-
Sarah Spreizer: A small increase.
Jon Fansmith: A small increase, but versus a 19 billion dollar cut is a pretty big split in opinion. And that's what we've seen again and again and again, is the Congress just doesn't share this administration's priorities, especially as it comes to really gutting a lot of very important programs.
Just on Department of Ed side, there was one very big positive, and it's worth highlighting. And frankly, being appreciative of this budget for this alone, Pell has a projected budget shortfall going forward, essentially meaning Congress hasn't provided enough money to pay for the grants to students that they expect students will need going forward. And the president's budget actually says we're going to put 10 and a half billion dollars in new funding into the program. We're essentially going to adjust the way that money is calculated. So this will be paid going forward and put the program on sound financial footing and maintain the current maximum award level, which is a little bit under $7,400.00 as a maximum award. That is great.
I just said the president's budget's irrelevant. The one area where it is somewhat significant is sending a signal to the Hill about what their priorities are. And given the challenges Pell is facing, but also that this is a really historically bipartisan program, has a lot of support on both sides of the aisle, the administration stepping in now and saying, "Commit the resources, stabilize the program, commit to doing that," it's meaningful. It tells a lot of conservative Republicans, this is something the president might be willing to spend a little capital to preserve. And especially last year, they proposed cutting the maximum award by about $1,700.00 per grant. So it's a complete reversal of where they were even a year ago in a way that I think is very positive.
Now that said, that's the only good news in this area for this budget. And a lot of what we saw last year, these very, frankly, self-destructive cuts, getting rid of the supplemental educational opportunity grants, which is grant money that goes to Pell recipients. It subsidizes those students. Cutting a billion dollars to almost all the funding out of federal work study, eliminating TRIO and GEAR UP. We had Kim Jones on not too many weeks ago to talk about TRIO and the value of those programs. This budget would eliminate entirely.
And then across the board, international education, support for student parents, even things like IPEDS or the Office of Civil Rights, seeing those eliminated, or in the case of Office of Civil Rights, 35% cut even as they ramp up the number of investigations announced and begun. So really getting the department's ability to do the work even this administration wants them to be doing on top of all these other things.
Sarah Spreizer: Jon, is the Pell shortfall though, is that being made up with the cuts being proposed in the budget? Is that 10, whatever the shortfall is, is it being made up cutting Gear Up and TRIO and these other programs? Is that making up the shortfall?
Jon Fansmith: No. So 10 and a half billion dollars is real money. And even with all of those other cuts, which are substantial and will benefit hundreds of thousands if not millions of other people, and enable them to afford higher education, it's still not enough to provide that 10 and a half billion dollars. So it really is in many ways they have staked out a position around Pell, and that's wholly independent from continuing these efforts to gut a lot of really important financial aid and institutional support programs.
And I realized one of the ones I forgot to mention that was actually at the top of my list, they would again propose, as they have been recently not in last year's budget, to eliminate the funding for minority serving institutions outside of HBCUs and tribal colleges and universities. So again, a lot of the same thing we've been hearing from this administration, and again, we're going to rely on Congress to do the right thing instead.
Mushtaq Gunja: Sarah, proposed cuts to NSF, NIH, I mean, obviously this has potentially significant impacts for our campuses. What do we know, if anything, about what this is supposed to signify as sort of just a general decrease or shift in priorities? What's going on?
Sarah Spreizer: I think similar to the budget request that we saw last year that was largely rejected by Congress, a few slight differences. The cut to NIH this year is only a 13% cut, around 13%. And rather than eliminating a whole swath of institutes within NIH, it would only eliminate three and they're the ones that you would think of, the National Center for Minority Health and Health Disparities, Fogarty International Center, and then the National Center for Complimentary and Integrative Health.
The other thing about the NIH budget that I would point out is that it also includes language that it would continue the policy of capping indirect cost at 15%, which is obviously something we've been engaged on in litigation, and Congress has previously blocked those efforts. The National Science Foundation is similar to the cut that was requested last year that Congress did restore. It is a 54% cut, so it would go from about an 8.8 billion dollar agency down to 4 billion dollars. And as part of that cut, the administration has proposed completely eliminating the Directorate for Social Behavioral and Economic Sciences, the SBE Directorate. I would expect Congress to likely reject that proposal, but it is concerning that they're continuing to ask for this major cut to the National Science Foundation, even though Congress has restored that funding.
And then as you mentioned, Mushtaq, big cuts to NASA science, to science at the EPA, and cuts to basic research at Department of Defense, even with the overall increase in Department of Defense funding. So not a lot of, I think, highlights in the president's budget request for science and rather continuing cuts to these research agencies.
Mushtaq Gunja: Se started this section by Jon noting it's just a proposal, doesn't necessarily mean anything. What are we hearing from Congress in this regard? There's a huge amount of rejection of the president's budget last time. What, if anything, have we heard so far?
Jon Fansmith: So I'll say-
Mushtaq Gunja: [inaudible 00:16:43] with a thud and they're not going to be receptive and they're going to reject all these cuts again. Tell me that, Jon.
Jon Fansmith: So Sarah's shaking... I think that's the case. I think if anything, this is a much harder environment for this administration to get those cuts made. We're in a midterm. One of the benefits, frankly, of spending, one of the reasons Congress likes to spend and rarely takes the opportunity to cut spending is that money goes to constituents. It funds programs, it provides resources. It's a whole lot easier in election year to argue what you've provided than to argue why you took something away. And the president's performance approval numbers right now are historically low for a president at this point in their administration, at least since we've been keeping track of those with any regularity.
There's a lot of members of Congress on the Republican side who are trying to establish some distance from the administration. There's a really easy way to do that to say, "I fought for funding for X, Y, and Z. I support the president, but on this we disagree and it serves my constituents, so I'm going to bring that home." I think there's a lot of motivation to keep the funding in place. And certainly if they weren't willing to do it last year, I don't know where there would be a new push to do that this year.
Mushtaq Gunja: Sarah, tell me you agree with Jon.
Sarah Spreizer: So I agree with Jon.
Jon Fansmith: She can't.
Sarah Spreizer: I think Congress is going to reject a lot of these cuts, but I also don't think we're going to do appropriations this year. It's a midterm year. I think it will be interesting to see the secretaries and the cabinet officials go up and defend this budget request. I think it's going to be a lot of the same that we heard last year, but I think we'll get to October before the midterms, and I think it will be in a continuing resolution. And so, we'll see those increases that were included last year largely continue until they get the new Congress in place.
So I think appropriations is a little less of a story this year, just given that it's going to be kind of proforma. But I am interested to see how the administration defends these cuts given that Congress restored them earlier this year when they go up and start testifying.
Mushtaq Gunja: Well, I am certain this will not be the last time we talked about appropriations between now and, well, now and the fall, though I guess we'll just see with the new Congress, I mean, with a potential takeover of the House from the Democrats, we'll see how all of this all lands. Can I segue us to college athletics and an executive order that came out? Was that last week now?
Jon Fansmith: Friday, I think, right?
Mushtaq Gunja: So much has happened. Only on Friday?
Sarah Spreizer: It was right before Easter. Right before the big basketball games.
Jon Fansmith: Right before the Final Four.
Sarah Spreizer: Something happened, I don't know. College-
Jon Fansmith: Basketball games, men's and women's. Yeah.
Sarah Spreizer: I know UCLA won.
Mushtaq Gunja: Yeah, they did. My home-
Jon Fansmith: First time ever.
Mushtaq Gunja: So congrats to UCLA, congrats to Michigan for their big wins the last couple of nights. Trump administration put out an executive order, I guess, Friday, on college athletics with... I'm chuckling because, goodness, I didn't really think that the Trump administration was going to put out an executive order on college athletics on eligibility caps, capping eligibility at five years. Transfer restrictions, one free transfer, but that's it. Some NIL reforms, named image likeness reforms. And then of course, hilariously, as always, if campuses don't agree, there's this threat of the withholding of research grants and other contracts if you don't meet the eligibility caps. Okay. Sarah, I'm going to let you not have to say a whole lot about college sports if you don't want to.
Sarah Spreizer: Oh, thank you.
Mushtaq Gunja: But Jon and Peter, Jon, why now? I mean, this did really... Maybe I haven't been following as closely as I should. I was surprised that we were getting executive order on college sports in the middle of everything else that is happening. Why now? What's going on?
Jon Fansmith: Yeah, I mean, a couple things. Certainly President Trump has been very interested in athletics generally. He's gone to sporting events. He makes a big deal about hosting institutions or hosting winning teams under some circumstances at the White House and he-
Mushtaq Gunja: The call from Tiger Woods? Sorry.
Sarah Spreizer: Too soon, Mushtaq, too soon.
Jon Fansmith: Yeah, really. Wow. He's done an executive order on collegiate athletics before. And frankly, this is a very typical politician thing to do. There is a lot of dissatisfaction with college athletics right now in the general public. Michigan won with a team entirely of transfer players, and nobody started at Michigan. And stories about college football salaries, who they've been dismissed and still collecting, in some cases, seven, eight-figure paychecks. A lot of people on both sides of the aisle want to do something about collegiate athletics.
I think the particular moment we find this announcement in is really about what's going on on Capitol Hill. There is an effort to move legislation, particularly in the House. There's a bill called the SCORE Act. There's lots of proposals, some bipartisan, some Democrats, some Republican. The SCORE Act one is one that has the support of the NCAA and it's got supportive leadership. There's bipartisan support behind it. It's just run into some roadblocks, particularly with conservative members. And if you look at what is in the executive order, not everything in there sort of tracks exactly to what the SCORE Act would implement, would require, but it follows pretty closely. And I think you can certainly read the executive order as an indication to the Hill, and especially Republicans on the Hill, that this is an approach that president supports, that he wants to see some movement in this area.
He would like to certainly be involved in and maybe take some credit for addressing some of these widespread concerns about where college athletics is right now. And I seek, Pete, I'm sure he wants to jump in. I should also note when we are talking about college athletics in this context, and important to note, the executive order only applies to institutions who generate 20 million dollars or more in revenue through their athletic departments. We're not talking about college athletics, we're talking about Power Four conferences, a certain subset, especially in the men's and women's basketball and men's football programs. But yeah, Pete, I'll stop there and maybe toss it to you.
Peter: Well, let me pick up right there, Jon, because just contextualizing this a little bit. One of the things that ACE has done repeatedly over the years reflective of our broad membership is try to remind the policymakers that when they talk about college athletics, there's this policymaker default toward thinking about what we now come to call, The Power Four, or maybe the March Madness experienced. But if you look at the number of intercollegiate athletes across Divisions I, II and III, that's a tiny, tiny number of folks.
And there's this fundamental misunderstanding about, in the old days when we used to talk about athletic scholarships or athletic aid, less than half of Division I athletes got a penny of athletically related scholarship aid. And so, we talk about the big issue of intercollegiate athletics through a pretty myopic lens, but it's the only lens that the policymakers look through. And I think unfortunately, the media tends to, for obvious reasons, go there. And we forget that there's trickle-down effects of all of this stuff. So that's a contextualized comment.
The other thing is we're seeing this in other areas about executive orders. But I think, at least for me, I've started to feel that the executive orders that we've seen since last January are kind of more formalized Truth Social posts. They're messaging. And in this space in particular, we appreciate that the executive branch can't make any policy here. This would be for Congress, this would be for states. And so, there's signaling that's going on as you're mentioning, Jon, but there's nothing that can come of it. The executive auditor, the executive branch can't do anything other than threaten.
And you did allude to a threat, and that's in this executive order where we've seen this again, for things that our universities care about that's completely untethered to athletics, there's a threat that if you're not abiding by your conference rules, some NCAA rules, we're going to come at you. We're going to... We meaning the executive branch, are going to look to see whether agencies that are funding your students and yourselves and your research for completely other reasons can stop doing that. And again, one more example of what's really been latched on to since Inauguration Day last year, which is the connection between the federal government and our institutions, our reliance and concerns about money.
Jon Fansmith: Yeah. Can I just add one thing to that? I think it's very... Well, funny is not the way to put it, but there's a lot of reference in the executive order to the idea that schools might be bankrupting themselves by competing in this sort of athletics arms race. And yet, the proposals are, "Well, we're going to destroy the funding that's available to you across these other areas of operation if you're not in compliance." So I think to Peter's point, there's a lot of signaling and messaging and the practical realities of it are something very different.
Mushtaq Gunja: Alanis Morissette may call it ironic, though I don't know if she ever used that quite right. Hey, speaking of executive orders and speaking of funding, let me move us to this executive order on March 26th, which said that "Within 30 days of this order, all federal agencies, including GSA, must insert a new clause into federal contracts. Colleges and others must certify that they're not engaging in discriminatory actions." This seems to me to be aimed at diversity, equity, and inclusion. Jon, Sarah, what was this EEO? How does it affect our colleges?
Sarah Spreizer: Well, it's interesting because it came right after the comments on the proposed changes to the GSA DEI provisions, the provision that there would be an incorporation into every grant application that you were agreeing to abide by this definition of DEI. This seems to go one step further and say, beyond just doing grant agreements, we're going to try and incorporate it into every contract the federal government has. And for our institutions, there's a lot of contracts that you sign with the federal government, like Title IV, just to receive any kind of federal funding. So it's almost like, "Well, if we can't get it through with the GSA language, we're going to try and do it this other way through this EEO and requiring it within contracts."
Mushtaq Gunja: Yeah. And to be... Jon, let me ask, so this definition of not engaging in discriminatory actions, not being engaged in "DEI," what's that definition of DEI? I know we've had a lot of conversation about what that is. Where is this coming from?
Jon Fansmith: Yeah, we have a direct through line from day one of the administration when they put out an executive order around what they call, illegally discriminatory DEI or other things. I'm glad we've got Pete here so he can correct any missteps when I state this. But I think one of the things we believe very strongly is the law itself has not changed since this administration has taken office in terms of what constitutes discrimination. And if you were discriminating on the basis of race prior to this administration, that behavior is not anymore or any less legal now.
What the administration is talking about, they specifically in the GSA requirement cited back to a Department of Justice memo where it's their interpretation of what the law requires, and to the previous executive order and then the subsequent executive order that Sarah talked about that would apply this also to contractors and subcontractors of the federal government. It really is asking these entities, and it's not just colleges and universities, GSA, that requirement's going to go up to hundreds of thousands of organizations. It's requiring them to say, "We are in compliance with an interpretation by this government, by this administration," that is being challenged in court as we speak and in a couple of cases, and the one we always talk about is that February 14th, 2025 Department of Ed guidance that lost in court and was rescinded because the department couldn't defend it. It didn't stand up.
So it's really problematic to ask institutions to say, "We will agree to be in compliance," with something where what compliance looks like is really hard to understand in the first place, even if you're trying to, but maybe more so they're asking you to be in compliance with something that's actually not required by the law and in fact may run into conflict with state and local laws that institutions may be subject to as well. So there's a lot of different layers to this, but we've got the advantage of having Pete on. Maybe I'll defer to Pete to clean up any mistakes I made.
Peter: No mistakes, but you know what? An observation. So if we go back to the Obama administration, I think I can just say, "The Dear Colleague letter," and some memories are triggered for most of the folks on this today.
But we had a 2011 Department of Education, Dear Colleague letter about Title IX, and particularly about the processes to investigate, the processes to adjudicate, et cetera. And it was guidance. It was a Dear Colleague letter. And we spent a few years, frankly, wandering through the woods about, "Is it enforceable? Is it not enforceable?"
And we all came to a legally informed by the judiciary, understanding, and I thought that included the executive branch, that it's not law. So we arrived at Trump two, and I think they'll say, "Well, our guidance isn't law. Our executive orders aren't law."
But they don't care, right, because the whole point is to try to encourage force, scare you into over compliance. No institution, no individual likes to be sued. No institution likes to have money cut off in a contractual setting or wherever, and then you have to go and try to force a judge to force it to be paid to you. Those things are awful. They take forever. And so, this is as much about the threat, the threat that we're either going to come after you or we're going to cut off something and you're going to have to come after us.
And we can count on one hand the number of institutions over the last year that have engaged in that with the executive branch. And we see the retribution that is visited upon ones that continue to do that. We could spend the rest of this time talking about Harvard and what's been delivered to Harvard because Harvard has not, so to speak, capitulated. And so, we have these threats there and it's an over-compliance threat. And I think there's a lot of dots connecting to many other things that we've seen since Inauguration Day.
Sarah Spreizer: I also think, Pete, it does seem to be a little scattershot. I mean, thoughtful scattershot in that as opposed to picking one path and saying, "We're going to implement this policy through Pathway A," they're trying multiple pathways.
And I remember on January 20th when the DEI executive order was issued, and it references the fact that they are going to incorporate this into agreements so that government contractors or government partners are going to follow this DEI definition. And at the time, we all thought, "Well, how would you really go about doing that?"
And it seems to me they are now implementing it, but in a way that they're doing it on multiple fronts. So even if the GSA proposed rule gets kicked out, you're still going to have this EO on contracts. Is that right?
Peter: Well, yeah, Sarah. And law firms have offered a whole bunch of webinars about the False Claims Act. And many folks probably heard of it, knew nothing about it, but at its core, it's a threat. It's a threat of criminal liability or defending against the possibility of criminal liability. And it gets weaved into various of the things that you're talking about, Sarah. And so it's a little bit of a throw it all against the wall and see what sticks. But I think it's as much about what sticks to the conscience of somebody who's trying to figure out how to go about doing what they're doing on campus and how does it change what they write, what they do, how they act, less about whether at the end of the day there's a proceeding, an outcome, an appeal, a guilty verdict, a civil liability. This is about changing what's going on on campus and doing it through threats.
Sarah Spreizer: And I mean, the Dear Colleague letter came out last spring, but the courts didn't decide against it until this year. So it sat out there for almost a year with campuses, I think, trying to figure out whether they needed to make decisions based on it.
Peter: Well, there's a challenge that the lawyers that are trying to figure out strategy always have about whether you have an actual case or controversy. So an executive order is probably 9 times out of 10, maybe 10 times out of 10, not sufficiently ripe, if you will, to challenge facially. Once an agency actually does something to a particular institution or a particular faculty member, well, that's undoubtedly ripe. We have a case of controversy. But we have a whole spectrum between saying something in an executive order or a Dear Colleague letter and acting upon it. And there's a lot of room for mischief in that journey, too.
Mushtaq Gunja: We could talk litigation strategy and how we might be able to force the case or controversy or whether or not there was some sort of preliminary injunction or temporary restraining order that we might be able to go for. But I think that's probably beyond the scope of this podcast, at least for now. But maybe we can bring you back on, Pete, and we can talk about that.
I do want to make sure that we leave some time for student voting because there's so much to talk about there. Jon, I'm going to ask you in 90 seconds to talk about what happened last night with the accreditation white paper. Can you do that in 90 seconds, you think?
Jon Fansmith: I can't do anything in 90 seconds, as you and Sarah like to point out, but the Department of Education is doing a rulemaking around accreditation. I think there's a lot of concern about their goals for that process. They have about 10 things they want to touch on. A lot of those are sort of procedural, how do you recognize an accrediting agency? How do new ones start? But they also have things in there about what are the standards accreditors need to use in terms of measuring the outcomes of students and particularly about ensuring intellectual diversity on campuses. Last night, the department released both the list of negotiators, the people who are nominated that they've selected to fill different roles on the committee. The first round of negotiations actually begins next Monday and the second round will take place in May, starting the 18th. So it's just about to start.
The other thing the department did was they released 151-page proposed revisions to existing statutory or regulatory language that they would essentially put forward as their initial offering to the committee of what they would like to see change that will serve as the basis for the discussions. It's a lot in there. I can't say I've read all of it yet. A few things that have been flagged, one of them would require creditors to set a minimum standard they have to use for the return on investment for students as a criteria. Another one, and I think will cause a lot of concern for campuses is, mandating that institutions accept transfer credits as they're applied to the general education requirements, not just, as is often the case, towards electives or other things.
Certainly, I think we are really interested in encouraging and facilitating transfer of credit among institutions, but to have the federal government dictate the terms on which institutions make determinations about that, I think that causes a lot of heartburn for folks. So start of this process, but it's going to be a big one, a lot of eyes on this process.
Mushtaq Gunja: Pretty good, Jon.
Jon Fansmith: Thanks.
Sarah Spreizer: It was a little longer than 90 seconds.
Jon Fansmith: Sarah had a stopwatch going.
Mushtaq Gunja: Well, given that negotiations start next week, I'm certain that we'll talk a little bit more about the details of what was discussed in our next podcast, or at least I'm going to volunteer you, Jon, to tell us about that.
Jon Fansmith: Sure.
Mushtaq Gunja: Let's talk a little student voting. So Pete, part of the reason that we had you on here was that it just feels like there's been a steady drip of story after story about students in the 2026 elections. So at the federal level, there's a lot of energy around the SAVE Act. But before that, last month we saw some movement from the administration against NSLVE. The student voting study that's been conducted out of Tufts for years has been an invaluable source of information for us about the level of engagement, registration, and then voting patterns by our students.
Before that, last year, we saw the administration attempt to put some restrictions on work study and whether our students would be able to be engaged in voter activities on work studies. So, lots of stuff happening at the federal level at the state level. Goodness, I mean, state after state seems to be putting some sort of restriction on student IDs as acceptable forms of voter identification. So see Idaho or Ohio. There are states that are making residency challenges that basically say if you're a student at Dartmouth, for instance, you can't register as a New Hampshire voter. So those sorts of residency challenges, polling place limitations. I mean, state after state seems to be trying to take polling places away from campuses, even though those are hotbeds for places where people would want to gather and vote. See North Carolina and others.
I see in the chat, New Hampshire for student IDs, too. Yeah. And I think there are probably 8 or 10 states that have really doubled down on this. So Peter, what feels different about this election cycle? What feels the same, at maybe just a greater intensity? Or maybe you're going to tell me that this is just par for the course.
Oh, I should note, too, Peter, and then I'm going to kick it to you, part of the reason that we have Peter on is that he is responsible for authoring a very important brief that ACE puts out that Peter really authors every election cycle on what campuses need to do vis-a-vis student voting and other political activities. So Peter, I'm going to ask you about that in a little bit as well, but generally, sort of high level, what's going on? Does this feel different to you?
Peter: Well, for me, what really feels different this time is the intense pressure from the White House. So we've had two executive orders in the first hundred days come out, and they're being sent [inaudible 00:42:01] me, and received not just within the executive branch, which really can't impact how voting is done in this country, even in federal elections, but they're being essentially sent as signals to state and local Republican leaders. They're those more formalized Truth Social posts that I was referring to earlier.
What's interesting about these executive orders is that I was talking about a case or controversy before, will a court figure out that this actually does allow a court to rule relating to the executive orders? With these executive orders, there's been courts that have indeed said, "Okay, these present an absolute justiciable controversy. We can rule on these."
And there have been permanent injunctions entered relating to the first of the executive orders. And I just thought I'd read a sentence from a decision in October of 2025 from a federal judge here in DC. And the court said, "The first question presented in these cases is whether the President acting unilaterally made direct changes to federal election procedures. Because our Constitution assigns responsibility for election regulation to the states and to Congress, the court holds that the president lacks the authority to direct such changes."
Now, I know we've had a lot of folks leaving the Department of Justice. We've had turnover as the attorney general, but as Mushtaq certainly knows, this is pretty basic law. They knew when they wrote these executive orders that they mean nothing legally, that they can't be enforced, they're signal sending. And it seems that we're seeing three generalized categories of signals that are being sent down, if you will, through the ranks, into the states, into the locals, local areas. And if Congress would act [inaudible 00:43:54] Congress, what is restrictions on who can vote? Excessive proof of citizenship mandates, changes about voter registration. They want purges of voter roles and how we can vote. There's this railing against voting by mail. And even when you're voting in person, restrictions, what you need to show when you show up, et cetera.
And this is going to continue. And we're here mainly to talk about our campuses. It has an outsized impact on our campuses, particularly because we have a community of students for whom this stuff may be the first time they're engaging in it. It seems complicated. Many of them are coming from a different county in their state, a different state maybe, and they find out, "Oh, I think I can vote here or at home because my friend who's in Ohio can, so I bet, yeah, I can." Or, "My friend in Ohio can't, so I guess I can't." And so this is really complicated stuff and the folks that are trying to limit student voting know that.
Sarah Spreizer: Pete, the first time I voted, I was a college student, and I remember my undergraduate institution, Beloit College in Wisconsin, there were a lot of helpful things that the college did to inform students of their rights to vote and whether they could vote in Wisconsin or whether they could vote in their home state. Then as I became involved in government relations for institutions of higher education, I realized we actually have obligations under the Higher Education Act to inform students of their rights during an election cycle. So does that contradict the requirements under the Higher Education Act in which our institutions are required to inform our students about their right to vote with some of what's being done by this administration to say, "Uh-uh, uh, very carefully there's this very narrow interpretation of who can vote?"
Peter: Well, Sarah, you're absolutely right to point to the statutory obligation, and it's embedded in the Higher Education Act. And I think it's been there since a little before 2000. And what it is about in simplest terms is making sure that the students that are on campus have the appropriate registration documents so that they can register to vote. And this is, again, Congress. It's not the executive branch. It can't be limited or withdrawn. Guidance about how it ought be read would just be that. And the statute says that all of our colleges and universities are required to make good faith efforts. They are required to, "distribute a mail voter registration form to each student enrolled in a degree or certificate program and physically in attendance at the institution and to make such forms widely available to students at the institution."
Well, why do we think this is the case? Well, because there's a policy behind this, right? The policy is we want to enable people to vote. And as colleges and universities, we all aren't blind to part of our educational purpose, which is to prepare people, particularly citizens of this country, to engage, engage at the local level, the state level, the federal level engage as voters, engage as school board candidates, engage as congressmen. This is all part of the educational experience, but it does seem to be running into a strategic objective of limiting those folks voting in real time, and real time is the next midterms.
Jon Fansmith: Yeah. And Pete, I'm interested in the HEA requirements too, because one of the things we just talked about with the GSA provisions and some other things is even if the administration, the federal government doesn't have a legal role or legal authority, part of it is to chill the activities. We have this obligation on institutions, but the same signaling function. Would you say it's sort of the same signaling function, they're trying to maybe make institutions approach their role in informing their students about their rights, more cautiously try to muddy the waters a little bit as to how far they're willing to go to support their students in that area?
Peter: Well, Sarah made the good point earlier about guidance from campuses. And in our voting and political campaign related activities issue brief, the last issue, the next one will list a whole bunch of resources, online resources. And of course, students are much more comfortable going into everything online and following what's there. Those resources have been tremendous over the years. They're going to need to be constantly revised between here and next November because we have so much activity in states where these efforts... I think it's been mentioned in the chat. In the last week, we had successful efforts in New Hampshire and also in Florida relating to student ID cards no longer being able to be used to prove who you are. This isn't to prove where you reside or that you're registered. It is simply to show up at a polling place and show an ID that says, "This is who I am, this is my picture matched to the name on there." And that's been pretty standard. Students walk around with those things. And there's efforts in, I think, 16 states to limit that or eliminate that.
So I think it's about numbers, Jon. It's about discouraging people at the front end because it feels complicated. It's about discouraging institutions from helping bring a level of clarity and sensibility to it. And then, it's truly about counting. We know that there's lots of places where students make up a pretty sizable chunk of the voting population in a congressional district, for instance.
Now, take an example, Arizona. It is one of the highest proportions of college goers relative to state population. So in Arizona, this is going to be a big deal. Now let's think about Arizona State University. On campus, I think they have about 80,000 students that are either living in or around. So you're an operative in Arizona, you're an operative in the vicinity of Arizona State University. What are you going to do here?
Mushtaq Gunja: [inaudible 00:51:01] a question for you, Peter. I mean, these HEA obligations I think came at a time when young people were, I mean, first just getting the right to vote as we lower the voting age, and then we're voting at lower rates than our older generations. And that has persisted. Our younger, our 20 to 30-year-olds voted rates that are lower than our 30 to 40-year-olds and so on and so forth. But our college students and the NSLVE project has really helped illuminate this. We're actually voting at very high rates. Our college grads and our college students voted at proportions that are 10, 15% higher than the other 20 to 30-year-olds, 18 to 30-year-olds, knowing that there are of course older students as well. So the project has been quite successful that our campuses have undertaken and kudos to Beloit to get Sarah to be a lifelong voter based on that first voting experience. There's a lot of political science literature about how important it is to start voting early. And the earlier you start voting, the more likely it is that you are going to vote for the rest of your life and be more civically engaged and all of that.
Peter, so that was observation. Question for you, Peter. Okay, so the administration, the federal government especially, is trying to signal some hostility potentially towards student voting. What should our campuses do in response? What resources should they be looking at? And has anything changed today from where we were in fall of '24?
Peter: Things have changed. Things will continue to change. So number one is to look local. Sometimes we talk about shopping local, you got to look local. ACE, any national organization that isn't putting together an ever-changing, web-based platform to provide real-time information about particular states isn't going to be the place to go. Look local. Find your source that you think is accurate and timely about what's happening in your state, in your jurisdiction.
Find out, for instance, if we presume that mail-in voting or absentee voting is going to be a thing still in your jurisdiction, in your state in November, find out whether there's been restrictions against having that be able to happen without a stamp. There's been jurisdictions where they're not able to eliminate mail-in voting, but they can eliminate using state funds to pay for stamps. And so now you got to put a stamp on an envelope.
Well, maybe in those jurisdictions, our members should think about stamps as the new condoms. Maybe we need bowls of stamps available for everybody. Maybe we need clarity about how to get a stamp. I suspect that we have millions of college students who have never bought a stamp. They don't know how to buy a stamp. They might never put a stamp on an envelope. This might be the first, maybe the only circumstance where they do that. Stamps for those jurisdictions sounds ridiculous, but it's going to be a blocking mechanism for voting by students in those jurisdictions.
And then I go back to what I was alluding to earlier about the process. Anything that a college can do to demystify it, to simplify it, to make it clear that as long as there's activities that are nonpartisan, they can be done. There will be places where, again, because of local rules, et cetera, that may have changed, that in person voting needs to happen. And maybe there used to be a polling place that was walking distance to campus, and it's not walking distance this go round. Nothing wrong with the school providing free shuttles on certain days, particularly election day, between campus and a polling place or multiple polling places. Nothing at all wrong with that. So it's look local, try to figure out what the barriers to voting for whomever a student wishes to vote, of course, might be, and then work on those buses, stamps, et cetera.
Jon Fansmith: So two things. One, I love the robust discussion about stamps that's happened in the chats about whether students these days even know where to place a stamp on an envelope. So that's great. Thanks for raising that. And it's a clever idea.
Another question that came in though was, "How do you explain to your colleagues on a campus that voter registration, the kinds of activities you're talking about, aren't political activity?" which particularly public institutions, but certainly private institutions can have some stigma attached to it. There might be concerns about what's permissible political activity. Just a thought. How do you draw those lines to make it clear that the sort of things you're talking about are not only legal, but in fact, encouraged by HEA?
Peter: Yeah. So you can go to our 2024 version of the issue brief. We have a Q&A in there, some examples of what would be on the permissible side and the problematic side, and we'll update that for our next issue of that. And by the way, we're targeting probably early June for a release of that, sufficient time to capture some of the stuff that will continue to happen in the states between now and then. Enough time for it to be a useful resource as folks on campus have taken a breath after commencement, et cetera, and have started to plan for the fall that's going to come way faster than anybody who really wants it to come.
Mushtaq Gunja: Well, really look forward to that. I think that will be an invaluable resource for all of our listeners here, and we'll make sure to widely distribute that. One final question on voting to Jon, Sarah, and Peter, please chime in if you'd like, too. A couple questions in the chat about the SAVE Act, prospects of the SAVE Act passing. I mean, the president seems like he's signaled often in the last couple of months, this is his number one priority. I think we sort of have a shutdown, a partial government shutdown because of this. What are the prospects of this passing?
Sarah Spreizer: I would say never say never. I think some of the things that the president wants to amend the House passed SAVE Act with are likely non-starters in the Senate. But I could see some version of it passing, especially if the White House is going to continue to put so much support behind it. But curious to what Jon thinks?
Jon Fansmith: Yeah, I mostly agree with Sarah. I think one of the things we talked about, President Trump wants to ban mail-in voting, and it prompts these sort of stories, he just voted by mail. So it reveals this kind of thing that this is such an already widely accepted part of our voting process that it really is just, I think for a lot of members of Congress, both sides of the aisle, the things he wants to do are just beyond the pale, but it's not a shock. The biggest issue in the control of Congress right now is redistricting efforts, and we're seeing them in Texas, and California, and Virginia, and Maryland, and Illinois, and Indiana. Run through the list. Because our margins in Congress, our last three elections, have been so tight, both parties are looking at this and saying, "Two or three or four seats gives us the majority. We're going to try to squeeze every advantage we can out of the election."
And certainly Republicans believe that a lot of these requirements around SAVE would better advantage them at the polls, would restrict voters who might be inclined to vote Democratic and create an easier path for voters they would see as primarily Republican. I think the Senate, to Sarah's point, not real interested in taking this up on either side of the aisle, but never say never.
Peter: And let's just remember that so much of this stuff is reserved to the states by the Constitution to amend, if you will, the rules of the road. I see this as that more formalized social media posting, it's messaging. It's not a coincidence that the recently passed Florida law is called Florida SAVE.
Mushtaq Gunja: Well, I think I'm going to agree with all of you. I don't think this thing is going to pass. First of all, you need 60 votes in the Senate. There aren't 60 votes in the Senate. They could try to amend the rules for the filibuster and get rid of the filibuster. I'm not sure there are 50 votes in the Senate for all of this. Maybe, but I'm not sure there are, but I think the chances we get there aren't that great. And then to Peter's point, I mean, it seems like there are portions of us that are just blatantly unconstitutional in a world in which the elections are left, as Peter said, to the states. So I guess stay tuned, but I'm feeling okay about the Save Act not exactly passing certainly in time for this election.
And with that, friends, I think that we are at time. Jon, Sarah, Peter, any last words?
Sarah Spreizer: It was great having Peter on. It's always good legal advice.
Jon Fansmith: Agreed. And I'm learning a lot about stamps, so that's nice.
Peter: Hey, stamps, that's the takeaway. Stamps.
Mushtaq Gunja: Peter, we'll have you probably back on again in the fall after this issue brief is on, and certainly we could have you on to talk about any number of litigation issues. But thank you all for being here. Thanks again for all that you do.
And I forgot to say at the outset, if you've stuck with us this long, please rate and review the podcast. It really helps others find the show. And until we see you next time, please take care. Pray for peace. Thanks all.
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