2021 in Higher Education Policy (A Good Year, Not a Great One)


​​​​​​​​​​​​​​​​​​​​​​​Aired Dec. 18, 2021

Hosts Jon Fansmith, Sarah Spreitzer, and Mushtaq Gunja talk about the restart of student loan repayments on Feb. 1, and how that pandemic-relief policy is related to the Biden administration’s broader pledge to cancel $10,000 in student debt. Jon is then joined by ACE Senior Vice President Terry Hartle, who reviews the higher education policy successes and failures of 2021, and what we can expect from Congress and the administration in 2022. 

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

The ‘Charlie Brown Christmas Special’ Dancers You Most Want To Party With
Five Thirty-Eight

​Secretary of Education, Miguel Cardona on Student Debt, Critical Race Theory, & Howard Housing Crisis

The Future of Student Loan Forgiveness

Nearly $40 Billion in Relief for Higher Education in Sight as Congress Nears Completion on COVID-19 Bill

Reconciliation Framework Increases Maximum Pell Grant, Cuts Free Community College

Biden Administration Outlines Policies to Support International Education; Travel to the U.S. Begins to Ease for International Students​


 Read this episode's transcript

Jon Fansmith: Hello, and welcome to this special holiday edition of dotEDU, the higher education policy podcast from the American Council on Education. A little bit later in the episode, we will be playing our monthly interactive recording of a conversation between me and ACE's senior vice president, Terry Hartle, discussing what's happening in Washington right now and then taking a look back at the year that was in higher education policy. But before we get there, I'm going to introduce or at least say hi to my dancing co-host, Mushtaq Gunja, and my non-dancing co-host, Sarah Spreitzer, and say happy holidays, guys. How are you doing?

Sarah Spreitzer: Good. Although to make this a special holiday episode, I really feel like you should have provided cookies and/or hot chocolate to all of us.

Jon Fansmith: To be clear, I have cookies and hot chocolate here with me at my home where I'm recording this. So really honestly, that's on you to get over here and pick them up.
Mushtaq Gunja: I have Christmas songs in my head, which is why I'm dancing. What is your favorite Christmas song? Sarah, what's your favorite Christmas song?

Sarah Spreitzer: Oh, that's really difficult. I mean, the whole Charlie Brown Christmas album is amazing because you could put it on in the background, not really think about it. I forced my children to watch the Charlie Brown Christmas last night and they were just like, "Why? This animation is so bad." They just don't understand the charm behind it.

Mushtaq Gunja: Sarah, did you see the FiveThirtyEight article ranking the different dancers in that dancing scene?

Sarah Spreitzer: No. [crosstalk 00:01:37].

Mushtaq Gunja: Oh my goodness. You have to. I will send you a link. We should put it in the show notes.

Sarah Spreitzer: Yes, we should definitely put in the show notes.
Mushtaq Gunja: But I disagreed with the ranking. My favorite dancer I think is the girl in the purple dress. And they had that particular character a little bit low. Jon, you're looking at me like I'm crazy.

Jon Fansmith: No. I'm just curious what FiveThirtyEight's methodology for making those determinations was. It seems unlike them to just simply put something objective up there or something subjective up there rather than something that can be mathematically determined. So I'm curious what the criteria are, and knowing how my dancing would show up on any sort of ranking system.

Mushtaq Gunja: This is what happens when there isn't an election in the next couple of months after [crosstalk 00:02:24] spirals off.

Jon Fansmith: Well, we have some other things going on. It's interesting. We just had the conversation on our last podcast with Justin Draeger, president of the National Association of Student Financial Aid Administrators. I had a great conversation. He's always someone wonderful to talk to. But I think the thing that was kind of interesting, he talked a lot about student loans and the resumption of student loan repayments that's coming up. But Sarah, you were telling us, for instance, your Twitter feed is blowing up with this issue from non-Washington non higher people?

Sarah Spreitzer: Yeah, from non-higher ed policy. I mean, like random people I follow on Twitter, everyone seems to be talking about the resumption of the loan payments and the fact that the Biden administration has not delivered on really broad student loan forgiveness. And we were just chatting earlier that Secretary Cardona this week was on some sort of radio show and got asked very pointed questions about this and the connection people are making between the resumption of the loan payments and broad student loan forgiveness. I think this is going to really blow up into being a major issue early next year.

Jon Fansmith: Yeah. The radio show was Charlamagne Tha God I think was the... One of the things he kept saying and kept pressing the Secretary on was the Biden administration had promised $10,000 in loan forgiveness. I think the Secretary did as good a job explaining the areas where they have provided loan forgiveness. They have expanded Public Service Loan Forgiveness, forgiveness for borrowers who have a total or permanent disability, some other categories that they've awarded over $12 billion in loan forgiveness, and really most of that over the last few months. So this is a process that's ramping up. It's by no means over, but that doesn't resonate, right? Like people are focused on broad-based loan forgiveness. Mushtaq, I think it's interesting we tend to think in policy terms that these are very different concepts. Resumption of repayment is pandemic specific that's suspending it, and then forgiveness is a whole other thing, but that's not kind of how people see it, right?

Mushtaq Gunja: Sure. I think the fact that people have not been making payments on their federal student loans now for what, 22 months, 20 months, I mean, and that span coincided with the election and the promise of the forgiveness of $10,000 worth of loans, I mean, I think probably has merged these issues in people's minds quite a bit. Jon, any chance that this $10,000 ends up back in a Reconciliation Bill, I mean, does the pressure that Sarah talks about, will anything happen with it? I mean, as we sort of know, the Biden administration at least has, it's currently in the state where they believe they do not necessarily have the authority to be able to forgive those loans on their own. President Biden has made it clear that he would sign $10,000 worth of forgiveness if it came to him from the legislature. Is it going to come to him from the legislature in this bill?

Jon Fansmith: No. No, it's a really weird political dynamic. But it's like so many things in Washington are, it's really about money. And one of the things I find kind of interesting is the progressives particularly have been pushing this point very hard that they've demanded to see the memo that the Department of Justice, Department of Education put together on their authority to whether they can forgive loans, whether the president has that authority. They've put forward their own analysis that says they believe the administration does. It makes sense if that's what you want the administration to do. However, if the administration, as they clearly do, one, believes that they don't have that authority. And two, that maybe politically it's not good for them to exert that authority without previous Congressional action. In many ways, you've log-jammed the process.

Congress doesn't really want to pass this legislation money-wise because they have to pay for it. And if you have to pay for it, you look at the Reconciliation Bill just passed. If you give every borrower, 44 million borrowers, $10,000 in loan forgiveness, not all of them have $10,000, but it's hundreds of billions of dollars. Great, that's maybe the policy you believe in, but if you hand Congress hundreds of billions of dollars in spending authority and say, "Here, spend this on higher education," policy makers don't want to do that on forgiveness, especially a one-time forgiveness policy that everybody enjoys and then students begin accumulating more debt going forward.

They'll want to do free community college. They might want to do free college. They might want to expand the Pell Grants, double the Pell Grants. These are all things that are in the realm of possibility with that much money and they have a big impact and annual impact going forward. It's just forgiveness politically is sort of a bad calculation. It's a one-time hit that makes people happy but doesn't solve the problem and doesn't have repercussions down the road. So yeah, it's not going to happen.

Sarah Spreitzer: Well, it's also interesting because it's a complicated issue that's been kind of made into a very simple talking point, like forgive student loans. We've talked about this before, but there's a lot of loans that wouldn't be forgiven under kind of a broad forgiveness because they could be private loans, they could have been loans that were like in the FFEL Program that were then consolidated. And so I think a lot of the people calling for broad loan forgiveness may not actually see loans forgiven if perhaps they were through private lenders, but the Public Service Loan Forgiveness emergency order has been big. Also on Twitter, I've been noticing people tweeting about getting their loans forgiven under PSLF. And so, hopefully, the department will have some good numbers soon about how many loans have been forgiven under the PSLF emergency order.

Jon Fansmith: Yeah. And you think, well, two things I think, but first just on PSLF. They had hundreds of thousands of borrowers who had applied before they announced this emergency power. So at the very least, I think you're going to start seeing large numbers of people as they get the process up and running getting Public Service Loan Forgiveness, and that's going to maybe change the narrative a little bit. The other thing is on forgiveness, the federal government limits how much you can borrow in federal loans as an undergraduate. So a lot of these stories when you're talking about large amounts of debt, one, it may be loans that the federal government can't forgive like private loans that you took either to supplement as an undergraduate or as a graduate or grad PLUS, these other areas where there are some real problems with over-borrowing and concerns about that, as well as the fact that there are historic inequities between different races in this country in terms of wealth and accumulation of wealth and how disparities encourage borrowing.

But that is factored in. A lot of people look at us and say, "The overwhelming amount of debt is graduate students who tend to have lucrative careers and are best positioned to pay this back." So you see this kind of push and pull narrative where a lot of times people who are posting forgiveness will also say it's regressive policy. It's you're helping people who need the least help. 

Obviously, there's arguments on the other side, Sarah sort of touched on those, but it's a complicated issue. And as simple as forgive loans is as kind of a motto, policy wise it starts breaking down immediately. Who pays for it? What do you do with the money? Who benefits? Why do they benefit? How do you hand out that benefit? It makes it a lot more difficult to sort of move through the corridors of Congress.

Mushtaq Gunja: I think that's why the $10,000 that the Biden administration has sort of been for and that ACE I think has supported too makes some sense. I mean, it's a blunt number. It will probably help some folks that don't exactly need to be helped as much and it doesn't solve all the problems. But as we know, a lot of the defaulters, a majority of the folks that end up defaulting on their loans owe less than $10,000 worth of debt. It solves the problem for some good chunk of borrowers. So if they are looking for a blunt instrument, I mean, $10,000 sort of makes some sense, but Sarah, I don't know if it'll make everybody happy on Twitter, which is [crosstalk 00:10:30].

Sarah Spreitzer: I don't think so. I mean, I just think that the department seems to be losing on the narrative side and the messaging around it is just going to be something that's going to take up a lot of time next year with Congress pointing the fingers at the administration and the administration pointing their fingers at Congress and just a lot of unhappy people come February when those loan repayments restart.

Jon Fansmith: Well, hey, it's Washington, maybe sometime in October poll numbers will dictate we'll have broad-based loan forgiveness. So, never say never.

Sarah Spreitzer: That's true. That's true. Yeah.

Jon Fansmith: Well, loan forgiveness is not one of the topics Terry and I go into a whole lot of depth in our conversation, but we cover pretty much everything else in pretty great depth. As always, we appreciate your questions and suggestions for show ideas, and you can share those with us at podcast@acenet.edu. We will have announcements about when we're returning in the new year and a Happy New Year to all of you listening and enjoy the conversation between Terry and me.

Hello and welcome to today's Public Policy Pop Up. Thank you for joining us during this busy time of the year. I'm Jon Fansmith in Government Relations here at ACE, and I'm joined today by ACE's Senior Vice President for Government and Public Affairs, Terry Hartle. Terry, happy holidays.

Terry Hartle: Happy holidays to you, Jon. Good to see you again.

Jon Fansmith: Very good to see you. We are in the middle of December. It has been an eventful year to say the least, and looking back we sort of said the subject of this Pop Up would be a year in review. It has been quite a year. Tell us, you've got such a great perspective on what's happening in higher education and particularly in the policy space. Do you want give us your thoughts on what this year has meant and what were sort of the highlights and lowlights and everything in between for higher ed over the last year?

Terry Hartle: Sure. It has been an eventful year, a busy year. I think in general in terms of higher education policy, it's been a pretty good year for students and colleges and universities overall. Obviously, it's been a challenging year on campus as schools readjusted to opening and offering learning in person again. But I think institutions have done a really good job of that and I think higher education policy has been pretty favorable. Hasn't been everything that we had wanted or expected. The administration set a very high bar in terms of expectations of things that they promised they would do. It was inevitable that they would not get everything that they wanted. So that was to be expected. So not as great as we hoped it would be but still overall a very good year in federal policy.

If we do see the Build Back Better act enacted before Congress goes home with all that is potential in there for students and institutions, then I think it would very much be a great year in higher education policy. But you and I are both assuming that that'll have to wait until next year. The good news, I think the best news in many ways is that we had sort of a return to regular order. There haven't been too many policy surprises. Yes, it's been a highly partisan political environment, Congress having a great deal of difficulty doing things, but we're not seeing sudden shifts in public policy being announced with very little warning. It's just a more predictable environment, more rational in the way policies emerge.

I think the big highlight for students and institutions this year in terms of federal policy was the $40 billion provided in the American Rescue Plan enacted in March. It seems an awful long time ago, that not only did we get a considerable amount of money, but the regulations that the Biden administration issued to govern the last tranche of federal spending were very flexible for institutions in terms of using the funds. Partly this was because we had been through two previous rounds of funding and we'd learned a lot about how to make funding most useful for institutions and for students. The Biden administration followed through on that. The legislation itself was a little more flexible. So I think that was certainly the big highlight of the year.

Another point that I would mention here is that we did reopen the door for international students in the fall of 2021. Unlike American undergraduates, international student enrollment has largely rebounded to the pre-pandemic levels. We've got room to go. It's not where it should be. But I think we saw, particularly from the Department of Homeland Security and the Department of State, a real effort to try and figure out how to ensure that America could once again be the destination of choice for the world's best students and scholars. We did see flexibility that we had been very anxious to get and I think that made a difference in terms of how many students were able to be here.

Finally, I think something that doesn't get talked about too much in the media because it's not a terribly exciting story, but one reason it was a good year for higher education is because most schools managed to reopen pretty smoothly. COVID was largely kept in check on campus. Campuses obviously had to make this up as they went along in terms of their individual policies and procedures. But by and large, colleges reopened pretty smoothly and stayed open. That is not necessarily something that we should have taken for granted, particularly after the experience that we had in the fall of 2020.

Well, what's disappointing, the things that didn't work out so well. First, of course, I think in the broad controversial public sector that we have these days, controversies about how to respond to COVID often caught campuses, especially in red states, between very strong and competing political forces. Colleges and universities, again, particularly in red states, were not always free to pursue the policies that they might have chosen to pursue. COVID became the latest sort of part of the political partisanship that's roiling the country. Colleges and universities inevitably will be affected by that.

A second challenge that we've had this year is the political gridlock on Capitol Hill. The Congress isn't able to get legislation passed coupled as really a product of two forces, one, the Republican unwillingness to support much of what the administration wants to do, although there have been important exceptions. And second, the slim Democratic margins mean that just about every Democratic member of the house and certainly every Democrat in the Senate has to go along with whatever package is going to move forward. Biden administration wanted to do a lot more than they were able to do and a big part of the reason for this was because of differences within the Democratic Party as to which priorities needed to be pursued and how far.

Another disappointment, turning now directly to higher education, no doubling of Pell Grants. This was something that has long been a policy goal for many of us in higher education policy. The Biden administration talked a lot about this in the campaign. It was clearly on the agenda. But they never really took concrete steps to get to doubling. Having said that, if the money that's in Build Back Better and the money in the house 2022 spending bill is approved, we'll see a $950 increase in the maximum Pell Grant in one year, by far the biggest increase in Pell awards in a single year. That is an extraordinarily notable achievement. Is it as far as we hope to go, absolutely not. Is it notable and valuable and important? You bet.

Another higher education disappointment, free community college was dropped. Obviously there was some controversy about free community college within the higher education community, but in terms of a public policy that could transform the way low and lower middle income students think about higher education, free community college would have been a pretty big change in the policy environment. Having said that, the Build Back Better legislation does include $6 billion for a workforce development program that will be run through community colleges, particularly in light of the labor market uncertainty and challenges that we are now experiencing. The possibilities here are extraordinary. The good news about this is that all states may well participate in this. If we had had a free community college plan that put stringent requirements on state participation, many states may not have participated in the initiative. But it looks like this workforce development plan is something that all the states will be a part of.

Now, another disappointment, no large scale across the board loan forgiveness. During the campaign, Vice President Harris and President Biden both spoke about large scale loan forgiveness, perhaps $10,000 per borrower currently in repayment. Some Congressional Democrats wanted to go as high as $50,000 per borrower. The administration indicated that they didn't think they had the authority to do this. Nancy Pelosi, the speaker of the house, did something I'd never seen before, indicated that she didn't think the Department of Education had the authority to do this. But there continues to be pressure for across the board loan forgiveness.

We did see an effort to reestablish the Public Service Loan Forgiveness program as a workable program. I think the Department of Education ought to get great credit for their effort to move forward on this. An awful lot of people taking public service jobs would be benefiting if we had a workable Public Service Loan Forgiveness program in place. The department has made some efforts. The department has announced that they want to take further steps, but they're going to need additional legislation to take those steps. So I think this is something that we're going to have to wait and see how it plays out in the coming year.

More students are going to benefit, but a lot of people who otherwise would be eligible won't benefit because the underlying law itself is flawed. Can we convince Congress to fix that law in an era in which bipartisan agreement on anything is hard to come by remains to be seen, but I think that's something we'll be talking more about next year.

Now, finally, I guess the other thing I would say that's sort of disappointing is we did not get a permanent fix to DACA. The Biden administration very much wanted to put something permanent in place that would provide legal protection and stability for the Dreamers who are in the DACA program. The Democrats, another one of these cases where some Democrats wanted to go so far, other Democrats wanted to go much further. Great deal of difficulty getting consensus about how far the Democrats should go. And of course in the Senate, there was just very little interest in taking up any DACA legislation among Republicans. In the political situation, DACA was a casualty.

The Biden administration is moving forward to create a regulated program for DACA. They've published a notice of proposed rulemaking. Sometime early next year we hope to see DACA established in regulation. This will be better; more stability, more legal protection than the DACA initiative has ever had but it is nowhere near as good as having a program that was authorized by Congress and signed into law by the president.

I think the third thing, Jon, is sort of wait till next year. The big thing here is obviously the Build Back Better Act. There is an enormous amount of important stuff still in play. We have a $550 increase in the maximum Pell Grant. The taxability of Pell Grants for students attending low tuition colleges would be ended. Research funding would be boosted. Students in DACA would be eligible for federal student aid for the first time. And there'd be about $20 billion of support for historically Black colleges, tribal colleges, and minority-serving institutions. So the thing that we're watching most closely next year is Reconciliation and Build Back Better.

Second, that's only followed by the fiscal 2022 appropriation bills. As we've talked about before, a lot of money in here for higher education, a lot of money for research. Those two pieces of legislation will be very, very important to our institutions and we will probably see how they will be resolved by the end of February.

Another thing we're waiting on for next year, we will see new Title IX regulations. The administration has been sending signals that they hope to have this out in May or sooner. What they mean by have it out is it'll be a notice of proposed rulemaking. They will allow a comment period. The department will then have to evaluate all the comments and they will then publish final regulations that will take effect at some point in the future. So we will see more discussion, more public interest in Title IX in the coming year than we've had in this year because we will have an active regulation in play, but how that's going to work out, how quickly that'll happen remains to be seen.

We're also going to be waiting in next year for another round of negotiated rulemaking. The department has finished one round of negotiated rulemaking, wrapped it up last week. Jon, I think we decided they got agreement on six out of 13 issues.

Jon Fansmith: Four. Only four.

Terry Hartle: Four out of 13 issues. So they fell short. They've got another set of issues coming in, negotiated rulemaking number two that will start in January. Negotiated rulemaking number one had some specific programs, specific provisions that'd be of interest to some institutions, but it didn't have too many across the board applicable provisions for all colleges and universities. But we will see that in the negotiated rulemaking number two. There will be a gainful employment discussion. This is something likely to be of particular concern to community colleges. And there will be a discussion about the financial responsibility regulations that are so important to private colleges and universities. So I think the stakes in negotiated rulemaking round two are going to be much higher for our institutions.

DACA regs are coming. This is something that we are eagerly anticipating. The draft regs were pretty good. We've made some suggestions for improving them. We'll have to wait and see how that plays out. One of the things that we weren't sure how it was going to play out in the last couple of months of the year was NDAA, the Defense Authorization, and the United States Innovation and Competition Act. This is the legislation dealing with research funding and research security. The house has now agreed, as I mentioned, to take up USICA. This has potentially huge increases in research funding but also has the very real possibility of big increases in reporting and record keeping requirement that would end up covering a lot more institutions that are covered under the previous regime.

Concern about China and its intentions toward the United States is very high on Capitol Hill. Concern is bipartisan and bicameral. This is not just one party or the other. So we are likely to see some new requirements imposed on institutions in this legislation. And overarching, looking down over all of this is the fact that we have midterms coming in November next year, 11 months from now. I widely believe that the Democrats are facing an uphill battle to maintain control of the house and the Senate. In any election year, Congress really starts to slow down by about Memorial Day and pretty much after the 4th of July, they don't get things done.

So we've got a big agenda issue and we don't have much time for them to get it done in. I think the things we are going to be watching most closely will be what Congress does with the Build Back Better Act and how the 2022 spending bills turn out. So Jon, that would be my take in a nutshell. I'd be interested in what you think I left off the list. I'd be interested in things you think I might not have given enough attention to. So, what's your take on my assessment?

Jon Fansmith: No. I mean, I think that was a great assessment and very comprehensive I think. I was really struck by the idea that it wasn't a bad year but it was a disappointing year. This is one of those things where, like the Build Back Better Act has great things in it. It's $22 billion for higher education, which in a normal year would be unbelievable. But when you started with a Biden administration proposal that had hundreds of billions of dollars in it and then a house proposal that had $111 billion in it, $22 billion seems disappointing. It's there's a lot of that setting of expectations that in some ways obscures where some victories actually are. And it's, I think, particularly as we look back, it's good to keep that in mind.

Terry Hartle: I hate to call it a disappointing year given that we did get $40 billion in the American Rescue Plan and were pretty well positioned on a couple of major pieces of legislation. So, disappointing seems a little harsh. It was a good year. It was not a great year as we had hoped in part because the Biden administration had set expectations so high and we had acted on that understanding. So a good year, not quite a great year.

Jon Fansmith: Yeah. And I think just even pulling that out a little further. The fact that the Biden administration at least made efforts in these areas is pretty encouraging because it's been a while since we've seen big administration driving investments in higher education. Like you said, there's a lot coming up next year still to be resolved. A few of these things fall into the win column. It looks like a pretty good year and a half period maybe. But Terry, we have a large number of very good questions and given the opportunity to put them to you, I think I'll start working through some of our list, but I'll start, you kind of ended on the fact that Congress will be ending for the year. We talked a little bit about the importance of the selection with Congress so narrowly divided. We have a question from Bill Simmons and he asked, with the likelihood that the house will be controlled by Republicans next Congress, do you think Republicans will pursue an aggressive oversight agenda? And if so, what will be on that agenda? What will they be focusing on?

Terry Hartle: I think if either the house or Senate changes control, I think you can look forward to an aggressive oversight agenda, in part because they won't have very much interest in passing legislation. So they will be looking to do things to criticize the administration and potentially embarrass them in the run up to the 2022 elections. What will be on the agenda remains to be seen. Now, one of the takeaways from the elections in New Jersey and Virginia this fall is that Republicans think focusing attention on critical race theory is likely to be a winning issue for them. Most of the focus on that so far has been on elementary secondary schools, but this is probably one of those education issues that starts out at the elementary secondary level and becomes an issue for colleges and universities down the road.

Jon Fansmith: We had the hearing a few weeks ago about the use of HEERF emergency funds. And in terms of a preview of what might be on the Republican agenda, it was very interesting because as you sort of pointed out, questions about CRT, about social and cultural issues in higher education were really what we're asked. There wasn't much questioning about institutions use of the funds or how the funds were consumed, it was those kind of things that seem like election year issues that were really rising to the fore. And you assume if Republicans do take control, it'll also help shape their agenda. So, maybe some clues there.

Terry Hartle: I thought that was very interesting. We had actually just happened to have done a survey a couple of weeks before the hearing. And so there was some evidence that could be used to document the extent to which institutions had used their money, how they'd used their money, how much had been spent. Elementary secondary schools hadn't spent anywhere near as much money as colleges and universities. So there really wasn't much there by way of oversight. The money was provided in the three spending bills. The money went to colleges, universities, and students as was largely anticipated. There was no evidence of largely scale fraud or misappropriation of funds. So that was pretty boring. But I think that the social policy issues, particularly around race and gender as we head into a midterm election, likely to be focused on populous themes. I think that is an area where we could expect to see a lot of controversy. And if the Republicans take back control of either chamber, oh yeah, that's what we'll be worried about.

Jon Fansmith: I'm going to take the liberty of combining two other questions that were submitted in advance because I think I know the answer to the first one that you'll give me, which will give rise to the second. But somebody asked, what's your best guess regarding the reauthorization of the HEA? And then I'll take that second part of your response, talk about, given what I think you're going to say about HEA reauthorization, what issues you might see emerging in the next year in higher ed that will take precedence or rise to the top of the debate around federal higher education policy.

Terry Hartle: Well, reauthorization of the Higher Education Act, I will predict that the reauthorization of Higher Education Act will be completed in 2040 give or take a decade. To be serious, I think the chance of Congress picking up any complex legislation and moving it forward is very limited. Reauthorization of the Higher Education Act used to be a routine part of government. There are no routine parts of government anymore. And the more complicated, the more technical, the more challenging the issues involved, the less likely it is that Congress will take it up.

We could be heading for a situation where higher education policy looks like immigration policy in that there's widespread recognition that changes in federal policy are desperately needed but nobody wants to do them piecemeal. Nobody wants to take them one by one. People want to do everything or nothing, and therefore you get nothing. And immigration, of course there's been talk for years about straightening out DACA. But because nobody wants to start separating out those immigration issues, they don't do anything on immigration. And we could see that in higher education.

Alternatively, we could see what we saw at the end of 2020, which is where Congress, as we get toward the end of a Congress, decides to pull out a small number of issues that have some bipartisan popularity and figure out a way to address them as Congress did with the simplification of FAFSA in 2020. So I think higher education policy in terms of Capitol Hill is going to be extraordinarily incremental for the foreseeable future. I don't think comprehensive higher education legislation is on the books at all, period, paragraph.

When that happens, the authority of the executive branch grows as policies and provisions becomes obsolete. The executive branch needs to find workarounds. Doesn't matter whether it's a Republican administration or a Democratic administration, when policies are obsolete and no longer working, you're going to find people looking for executive branch shortcuts that can be put in place. So I suspect going down the road as we look toward 2023, we will see more of that.

And as I laid out earlier, we're going to see a significant set of regulatory actions coming next year from the Biden administration. We will have DACA regulations published in final form. We will have Title IX. We will have a negotiated rulemaking panel that will deal with both gainful employment and financial responsibility. So I think the inability of Congress to act will increase pressure on the executive branch to develop workarounds and I think that's the way education policy is going to evolve going forward.

In terms of federal policy controversies, I think there are two things that are of particular concern to me. One is the idea that too many students are borrowing too much money and that they are unable to pay it back. This sentiment has increased because the Department of Education now publishes data showing institutional loan figures by field of study at individual campuses, and they can show the repayment status of people two years into repayment. So this generalized notion we had before that students were borrowing too much money and weren't able to pay it back because they didn't make very much is much easier to assert now with some data behind it.

There are limitations to the federal data, there are reasons to criticize the federal data, but we've seen a series of stories in the Wall Street Journal, since July I think there have been five of them, talking about the inability of students, particularly in master's degrees programs to repay their student loans. That data can be broken down pretty extensively and I think we're going to see more and more attention to that.

Second, I think that critical race theory and social policy, the political orientation of colleges and universities, I think this is likely to become a political controversy going forward. Higher education often finds itself caught up in the culture wars, and I think this will be another case where that will happen.

Third, just in general, I would suspect that the Supreme Court sooner or later will look at the use of race in college and university admissions. They have one case before them now. This is the case involving Harvard. Just in the last week the Solicitor General, at the request of the report of the court, told them that Biden administration did not think that they should take up the Harvard case. But there are other cases behind it. As we're seeing with respect to abortion, the Supreme Court is thinking in conservative directions. It now has a clear conservative majority and I think it's only a matter of time before that issue finds itself once again before the Supreme Court and it's a very controversial issue where feelings are deeply held. So I think once again, for probably the third or fourth time in my career, the Supreme Court is probably getting ready to take a case that will be a focal point of our concerns.

Jon Fansmith: Thank you. I want to note that Cara has noted in the comments that she thinks your estimate of 2040 is wildly optimistic. So, general sense of where people are in HEA reauthorization. But sort of switching gears, you mentioned the fact that free community college have been dropped from the Reconciliation Bill when a lot of people thought that was probably the best opportunity to get a program like that through. Someone asked, generally, what do you think the political climate is around free college? It was obviously a big campaign agenda item of the Biden administration. But like I said, we just saw free community college, which is much more limited, and free college generally dropped. Where do you think things stand in that area?

Terry Hartle: I think the free community college idea is probably very much on the back burner for the foreseeable future. Our best chance to get that was in the context of an initial piece of legislation from the Biden administration. Doing this is expensive and it is complex. It never had universal support among the Democrats. It was never going to have universal support among the state governments because it was going to try to tie the hands of state governments, and state governments do not like the federal government attempting to tie their hands. Even if it had been enacted, there was no guarantee that states would rush to participate in it.

Keep in mind the experience with the Affordable Care Act, Obamacare. There's still 15 or 16 states have not expanded Medicaid even though the federal government provided 90% of the funding. So I just think that is an idea whose moment has come and for the time being has passed. I say that with genuine regret. I think the idea of free community college, despite the political and operational challenges, had the possibility to be a transformative idea, but the political will to do that really wasn't there and I don't see the political will to do that emerging.

I think our best bet to get to free community college is to get the funding in Build Back Better for Pell Grant, to get the funding in the fiscal year 2022 appropriations bills. Hopefully we can get the elimination of the taxability of Pell Grants, which would provide another effective increase in the maximum award for the lowest income students at the schools with the lowest tuition. Now, I think our best bet to in essence make community college free is to get more funding into the Pell Grant, which remains a program that enjoys widespread bipartisan support.

Jon Fansmith: Thank you, Terry. I am noticing the time. We have a lot more questions. Unfortunately, we don't have time to get to all of them. Maybe some of them are a little bit more evergreen and we can get to them in future Pop-Ups. I just want to remind the audience that a recording of this Pop Up will be available by the end of the week on ACE's podcast, which is dotEDU. In the meantime, I encourage you to check out our last episode where we talked to Justin Draeger, President of the National Association of Student Financial Aid Administrators, about student loan repayment, which we touched on here and a whole lot more. You can find all the episodes at acenet.edu/podcast. Our next Pop Up when we can maybe get to some of those questions is tentatively scheduled for January 24th and we'll be emailing more information about that when registration opens up. Thank you Terry for sharing your thoughts with us today, and thank all of you for joining us and happy holidays.

As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcasts, Spotify, Stitcher, or wherever you listen to your podcasts. For show notes and links to resources mentioned in the episode, you can go to our website at acenet.edu/podcast. And while there, please take a short survey to let us know how we're doing. You can also email us at podcast@acenet.edu to give us suggestions on upcoming shows and guests. And a very special thank you to the producers who help pull this podcast together: Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony Trueheart, Catherine Ahmad, Carly O'Connell and Fatma NGom. They do an incredible job making this happen and making Mushtaq, Sarah and I sound as good as possible. And finally, before we leave, thank you so much for listening.​

About the Podcast

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

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