Title IX, DACA, Gainful Employment: New Rules Coming for Higher Ed


​​​​​​​​​​​​​​Aired February 24, 2021

Host Sarah Spreitzer and ACE Senior Vice President Terry Hartle discuss the myriad regulations waiting to be finalized at the Education Department and other federal agencies. They also look at where Congress is on legislation targeting competitiveness with China—and what that means for colleges and universities—funding bills for the fiscal year that’s already well underway, and the complicated prospects for getting anything done in Washington on the eve of the Russian invasion of Ukraine.

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

House Passes America COMPETES Act

Biden Still Touts Build Back Better, but What Does That Mean?
The Washington Post (sub. req.) | Feb. 22, 2022

Senate Passes 3-Week Spending Bill, Averting Government Shutdown
The New York Times (sub. req.) | Feb. 17, 2022

Biden Administration Expects to Unveil Title IX Proposals in April
Politico | Dec. 15, 2021

ACE, 45 Other Groups Praise Biden Administration’s Effort to “Protect and Fortify” DACA

Negotiated Rulemaking for Higher Education 2021-22
Department of Education


 Read this episode's transcript

​Mushtaq Gunja: Hello, and welcome to dotEDU, the Public Policy podcast presented by the American Council on Education. My name is Mushtaq Gunja, I'm your host today, along with my good friend, Sarah Spreitzer. Hi, Sarah?

Sarah Spreitzer: Hey, Mushtaq. Can you believe John ditched us this week to go to the beach?

Mushtaq Gunja: I cannot believe that. I also cannot believe that I had to do the intro instead of John. It is way harder than it looks, John, if you're listening, I'm now deeply impressed by your ability to do that without notes each time.

Sarah Spreitzer: And I'm sure the first thing he'll do when he gets back from vacation is to listen to this podcast, but I thought you did a great job.

Mushtaq Gunja: No, I think he'll be listening at the beach. That's where I normally listen to this podcast. I drive to the beach and then listen to the waves sort of in the background [crosstalk 00:00:51].

Sarah Spreitzer: Got it.

Mushtaq Gunja: I would recommend that to all of our listeners. We'll be joined a little bit later today in a conversation between Sarah and our senior vice president, Terry Hartle to talk a little bit about what's happening in Washington. Sarah, how was that conversation?

Sarah Spreitzer: It was great. We talked about a lot of things. It's interesting, congress is in recess this week. And so I was like panicked, will we have enough to talk about, but there's so much going on. February and March are typically really busy times in DC. And so we talked a lot about legislation, lik The COMPETES Act, The USICA that Congress is trying to get done. What's going to happen with fiscal year 2022 approx, which are currently on a continuing resolution until March 11th. What's going to happen with build back better. And then all the stuff going on in the regulatory front, especially negotiate rule making, which I know you've been following a lot Mushtaq.

Mushtaq Gunja: Yeah. I know it can seem like sort of a little bit of a boring process, but I think it's been just a fascinating set of conversations that have been happening in Washington around the negotiated rule, making around accountability in student loans. So it's been fun, it's been busy. It's been busier than I would've thought too. Though, Sarah March is always a little bit of a busy time for us at ACE because our annual meeting is coming up soon. And we're going to be talking about probably all of the issues that you just mentioned in COMPETES Act, USICA Act, and the rest in San Diego next week, when you hear this. So, if you are tired of the cold and I understand that there's some sort of frigid air that is coming our way. I think Chicago is getting another foot of snow or whatever, forget that, just come to San Diego, it'll be lovely weather.

Sarah Spreitzer: Well, and not only that, here, the federal relations update from Terry Hartle in person and kind of be with your colleagues to talk about all the stuff that's going on in the world of higher education. And I think Mushtaq that meeting starts March 6th on that Sunday, right?

Mushtaq Gunja: That's right. Yeah. And I heard that you will be willing to sign autographs, when people come in up to you and ask for them. So I'll bring a Sharpie just in case.

Sarah Spreitzer: Yes. Bring your autograph book. But it's not just kind of like everything that's going on in DC around higher ed, but you and I were just talking about some of the stuff that's going on, on the state level.

Mushtaq Gunja: Yeah. I think this anti critical race theory movement is really, really picking up steam. It's picking up steam in incredible amounts in the states and maybe it'll come to the federal level at some point as well. But our listeners may well have seen some of the information coming out of Texas. So Lieutenant governor, Dan Patrick threatened tenure, threatened professors that were involved in teaching critical race theory. He vowed to fire them, he vowed to make whether somebody taught critical race theory, sort of a point in tenure considerations and then just vowed to end tenure all together. So, we're getting into crazy season a little bit, I think, and it's going to be really important for all of us in higher ed to know what the lay of the land is, to think a little bit about how we might want to counter some of the extremity in the conversations right now. It'll be certainly a topic of conversation at our annual meeting, I am sure.

Sarah Spreitzer: Yeah. And I just saw, I think it was last week there was a bill that's moving in the Florida state legislature regarding accreditation and whether or not institutions can use the same accreditor for every cycle. And of course, accreditation is a huge issue for an institution of higher education because it not only touches on academic quality, but it's also one of the gatekeepers for qualifying for federal student aid. And so it could have a huge impact, not just on the academics, but really the impact on the students as well as the institution. And so, what we've seen with a lot of those issues is once a state kind of introduces legislation, other states will pick up very similar bills.

We've seen that with foreign gift and contract reporting, where some states have put in additional reporting requirements and then kind of once they're successful, I think other state legislatures will pick those bills up. And so, yeah, it's a lot for institutions of higher education. And I think it's so good, I'm very excited about annual meeting being in person. I think we're taking all the precautions. I myself will be wearing a mask. I know we have to show vaccination status and it'll just be so nice to be with colleagues and in the same room talking about these very important issues.

Mushtaq Gunja: Yeah. I'm excited about annual meeting. I am excited about the conversation you had with Terry and I can't wait to listen to it and we will be right back with that conversation after this short break.

Sarah Spreitzer: Hello, everyone. Welcome to our February public policy popup. My name is Sarah Spreitzer. I'm an assistant vice president here at the American Council and Education. And I am joined with Terry Hartle our senior vice president for government relations. Hi Terry.

Terry Hartle: Hi, Sarah. Glad to be here with you.

Sarah Spreitzer: Glad to be here on a very busy, warm, yet rainy day in Washington, DC.

Terry Hartle: Yeah. Indeed.

Sarah Spreitzer: So I think we have a lot to actually chat with this group. Terry, even though Congress is out of recess this week, there are a few things going on.

Terry Hartle: Indeed. Well, let's start with the legislation, which is where we usually start. Congress, as you know is on recess this week, but they will be back in town next week. And there are three big things that we're sort of watching or hoping Congress will address on the legislative front, the first one COMPETES and the United States Innovation and Competition Act. Normally when we have the Senate pass a bill and the House passes a bill, they go to a conference and they settle the differences, but that doesn't seem to be happening quite that simply this time. So why don't you start by just sort of summarizing for folks where we are on these two massive pieces of legislation.

Sarah Spreitzer: Yeah, thanks Terry. And they are massive pieces of legislation. And these are really the competitiveness bills that are looking to kind of competition with other countries. Specifically with China. We've been following them closely last year, the Senate was able to pass in a bipartisan manner, the US Innovation and Competition Act, which you referenced Terry. And now the House has passed their version, which is the America COMPETES Act of 2022. And really at the heart of both of these bills, they're very large, re-authorizations, authorizations, meaning there's no real money for the science agencies, specifically the National Science Foundation and the Department of Energy Office of Science. But Terry we've spent a lot of time talking about, I think, four major issues, which are in both of these bills or pieces of which are in these bills. And really that's around kind of research security foreign gift and contract transparency, including the provision around CFIUS, which is The Committee for Foreign Investment in the US.

There was a provision included in the Senate bill, which would require CFIUS, which is a committee that sits at the US Department of Treasury to examine gifts or contracts to institutions of higher education over a million dollars. And we pointed out to the Senate and to the House that this would really slow down kind of international partnerships that were over a million dollars because CFIUS does not usually examine partnerships with nonprofits. They are a committee that's been set up to look at business dealings in the for profit world. And then secondly, we've watched very closely changes to section 117, which is foreign gift and contract reporting. The Senate bill would lower the reporting threshold from the current $250,000 down to $50,000. The House takes more balanced approach and we're to lower that reporting threshold to 100K, but would still capture a lot more foreign gifts and contracts than institutions are currently reporting.

And then both bills also will create a new section 124 to the higher education act, which would require some institutions of higher education to create and maintain databases, to collect information about foreign gifts and contracts to individual faculty and staff. The Senate version of section 124 has no reporting threshold. So that could include anything such as a cup of coffee that a visiting scholar might buy a US faculty member. The House bill actually puts a reporting threshold in there at 50K. And we think that, that is a more balanced approach because that would really try and capture kind of a contract that a faculty member has signed with a foreign government. And then I would say that the third big issue that we're following is some provisions related to green cards for STEM graduate students that were included in the House bill.

There's provisions that would make it easier for a PhD, a STEM PhD holder from a US institution or a foreign institution to get a green card and to come to the US and use their skills and get a job here. We are very supportive of those provisions, but that language is not included in the Senate version. And so it's unclear where that might end up in any sort of conference. And then finally there is a difference between the approach taken in the authorization of the science agencies between the House and the Senate. And so we're continuing to watch that closely. Did I forget anything, Terry?

No. I think you pretty well covered the landscape, but the CFIUS provision, the provision essentially would give the government prior right of approval on any federally funded research projects, is in the Senate bill, but it's not in the House bill, so that could go away. And that's certainly what we are pushing for. The section 117 and 124 increased data reporting requirements. Those seem very likely to happen one way or the other, because there are provisions in both bills. Green cards for STEM holders, something we've wanted a STEM degree holder, something we've wanted for a long time that is in the House bill, but not in the Senate bill. And the one thing we haven't talked about yet is an amendment added in the House that would authorize funding for short term programs under the Pell Grant program.

Something we've sought for a long a time, and the same amendment would authorize the college transparency act and would create a unit record system at the federal level for keeping track of how students are doing. I think these are the four major issues that ACE will put in a community letter. There are obviously dozens of more specific issues that other associations will be commenting on. But as I mentioned at the start, usually when the House passes a bill and the Senate passes a bill, we go to a formal conference committee. But this time the Senate is thinking about maybe passing another bill, rather than trying to go to a conference committee. You want to talk a little bit about what the Senate's thinking is there?

Sarah Spreitzer: So the Senate bill passed with bipartisan support. They had 18 Republicans support that bill, the House only passed with only one Republican voting for the package and actually one Democrat voting against it. And the House bill has, I think a lot of the House Democrats priorities, included in there, including the STEM visa provisions that I just talked about. And so the Senate wants to keep kind of the USICA bill as written, or at least Senate Republicans want to keep that because that is what they agreed to. They were able to get to the 60 vote threshold to pass it out as the Senate. The House bill as written doesn't really have a chance of passing the Senate and reaching that 60 vote threshold. And so there is some discussion about whether or not leader Schumer will introduce a new bill in the Senate that can actually be conferenced with the House bill and therefore not have to go through the 60 vote threshold needed in the Senate, because if it's conferenced, they're able to pass it with a simple majority.

Terry Hartle: Right. So basically we've got a situation where the parliamentary situation is somewhat confused at the present time. We have provisions in both bills we like, we have provisions in both bills we're a little uncomfortable with or uncertain about. In terms of a short term Pell and the college transparency act, I personally think a big issue here is going to be what the Senate Republicans do with this. One of the things that a majority of leader Schumer's particularly pleased with about the USICA legislation was it passed with 18 Republicans voting for it. He is very anxious to send a bipartisan piece of legislation to the White House. He will want to keep Senate Republicans on the bill. Senate Republicans in general have objected to a lot of items that the Democrats added into their version of this legislation as it was passing the House. It appears House Democrats thought, well, we might lose control of the House in the fall elections.

If we do that, we better get stuff in law right now because we won't be able to get this stuff in law if we do lose control of the House. So this is sort of a wishlist of items that Senate Republicans have raised concerns about. So will the short term Pell and the college transparency act happen? It could. I suspect that this will be one of those items that Senate Republicans are going to be very anxious to see pushed overboard because it's unrelated really to the underlying purpose of the legislation, which is investment in research and research security. And if that's the case, I think it'll be hard for House Democrats to carry the day on this one. It's not to say they won't, but I think how the Senate Republicans are going to be very key in terms of how this one moves forward in any legislation.

But second piece of legislation, secondary of legislation or following Sarah is the 2022 spending bills. As everyone on the phone, surely knows Congress is supposed to have passed 12 spending bills by October 1st, when a new fiscal year starts so far, Congress has passed zero. They have kicked the can down the road a couple of times. Most recently they have kicked the can down the road to March 11th were under a temporary spending bill. It expires on March 11th. The appropriations committees in the House and Senate have been very clear that they have a deal. They've reached an agreement as to how they're going to proceed.

This would be an agreement that would encompass both the total spending levels for fiscal year 2022. And it would include how they're going to proceed on policy writers that are normally in the appropriations bills, but nobody seems to know, or at least nobody is saying what those details are. So we have been told that there is an agreement, we've been told that they will have a bill ready for consideration by the House and Senate before March 11th. But we really don't have any idea what's going to be in it. Is that a fair summary?

Sarah Spreitzer: Yeah, that's right, Terry. And I saw this weekend that Senate appropriators were saying, this was the last CR that they were going to pass. They will get something done by March 11th, but there's not a lot of details about what's actually going to be included in that omnibus package, which is all of the different appropriations bills kind of put into one massive bill, but it's clear that they're negotiating. And I think for this audience, one of the really important things we're watching is the funding for student aid. There's an additional $400 that's included in there for the Pell Grant. I think institutions are starting to get nervous as they start to package financial aid offers. And so we need to know kind of where the federal government is going to fall on those funding numbers soon.

Terry Hartle: Well, it's $400 increase in the maximum Pell Grant. There's more money for work study. There's more money for supplemental grants, significantly more money for HBCUs and tribal colleges, minority serving institutions, also a pretty substantial expansion in funding for the national institutes of health, all of that's in the House bill, which we can see, but we can't see the Senate bill yet. So it's not as if we're seeing two bills and we're sort of saying, well, maybe somewhere in the middle, we've got one bill that looks very good. One bill that we haven't seen and a notion that they're going to settle somewhere in the middle. So this too remains uncertain. And it occurs to me that part of what we're seeing here in congressional decision making these days is stuff either happens very quickly as it did with all three of the COVID spending bills, they all came together very quickly and passed in a surge of bipartisan enthusiasm or stuff sort of is done in private.

We don't see very much of it. At the end of 2020, many of the folks on the call will remember that House and Senate passed legislation simplifying the FAFSA, but it was really what four offices agreed to in private. There really wasn't very much that anybody outside those four offices could tell was going on. And that seems to be where we are right now on this massive fiscal year, 2022 appropriations bill. And finally, Sarah bill back better, the president's human capital agenda bill. I don't think we can say that's dead, but it's in a coma. We haven't heard about that for a long time. Democrats continue on to pull pieces of that out and pass them separately, particularly pieces around climate change and possibly the child tax credit. There are a lot of higher education and scientific research provisions in there that we have been supportive of, but there isn't too much conversation about build back better going on. And certainly no specific discussions I'm aware of about the higher education and scientific research elements of that. So that increasingly looks like it is fading into the mists.

Sarah Spreitzer: Yeah. At least until something changes or the White House, again starts talking to Senator Manchin or he perhaps changes his mind. But I think you're right. For now, that is not moving.

Terry Hartle: Yeah. So we've got these three big pieces of legislation, all of which have significant implications for students, for colleges and universities. Congress is having difficulty passing anything, even under the best of circumstances. And the political environment is getting more complicated by the day. The Soviet Union has invaded Ukraine. That is the word that the White House is using to describe it. So the sanctions are going to kick in whatever sanctions they have agreed to put in place. This is likely to create some economic dislocation in the United States. So there'll be controversy around Russia and around the fallout from the invasion.

We expect to see a Supreme court nominee in the next week or two and history any judge, we would expect that to consume all the oxygen in Washington, DC until a decision is reached, whether to confirm that nominee or not, and finally the midterms are coming closer and pretty soon we're going to start seeing primaries being held. And so that's going to distract attention. So I think the legislative road is going to get tougher. It is not going to get easier and we still have big stakes standing out there waiting to see what'll happen.

Sarah Spreitzer: Well, all of that is going on within Congress, as they're discussing these weighty issues. There's quite a lot going on the regulatory front. Also, do you want to speak a little to regulations?

Terry Hartle: Why don't I start off on the executive branch agency front. First, we continue to wait for the Department of Homeland Security to lay out its proposal, its regulations regarding DACA, deferred action for childhood arrivals. As I think everybody in the call knows the Biden administration issued a notice of proposed rule making last fall. They invited comments pursuant to the administrative procedures act. Those comments were submitted. The agency is reviewing the comments. And at some point, hopefully in the not too distant future, they will issue final regulations around the DACA program. This will put DACA on a much firmer legal footing than it has been on since the Obama administration put the program in place about eight years ago. It's not as secure a footing as if it were enacted into law, but it will no longer be a program that was simply created under an executive order.

This will provide a little bit more stability and certainty for people who are in DACA. We would prefer to see it in statute that isn't in the cards. So getting it into the regulations is something that is very important to us. Second executive branch activity involves a pending set of regulations. Title IX regulations. The department of education has been saying for some time that they will have the draft regulations issued in April, excuse me, the department has told us they are still on track to meet a release of an NPRM in April. We understand that the draft regulations prepared by the department have been sent to the office of management and budget for review. This is a procedural step that is always taken. If the past is prologue, the office of management and budget will review the regulations. They will say a lot of it is okay.

And they will say, there's some things that they think the department needs to revise. The package will go back to the department of education before it's finally released, but that is in process. That's going to happen. We don't know exactly when, but we assume it will be the middle of April when we see the draft regulations. Department of education is also moving forward on a couple of negotiated rule making panels. Department of education with respect to title for student aid has to go through a particularly cumbersome process to make sure that public comment is received and that they consider all the views of the higher education community in putting together regulations. This is called negotiated rule making, the department and panels, a group of people who are broadly representative of higher education. They review the regulations that the department is proposing to put into place.

If the panel agrees, the Department of Education can move forward in an expedited fashion to publish final regulations. If the panel does not agree, then the department still has to run through a full notice of proposed rule making under the administrative procedures act. There are two regulatory panels at work, negotiated rule making panel one has finished its work. They had 13 items that the department was hoping to get agreement on. They found consensus on four of the 13. So those four will move through what will be an expedited proforma regulatory process, and will be enacted into regulation. The other nine issues are going to have to go through a full regulatory process with comments. The department will have to review and consider all the comments and then the department will publish final regulations. In fact, the first regulatory panel didn't have too much in it that will affect traditional colleges and universities, significant number of things in there that have great interest to for profit schools.

But the one for traditional colleges and universities is going to have significant implications is the second panel, which is meeting now. They have had two of three meetings. A lot of the discussions in rule making panel number two are focused on gainful employment and how the gainful employment regulations ought to be put back in place. Some of you will remember gainful employment regulations first emerged in the Obama administration. The Trump administration killed the Obama administration's gainful employment regulations. The Biden administration is going to put those regulations back in place, but they will change them when they put them back in place. One of the things that we know is that they're going to keep the debt to earnings ratio that was at the centerpiece of the Obama regulation, but they're going to make changes in the regulations. It appears based on the second meeting of three, it appears that the Biden administration says that if a school fails the test in two years of three, that program is no longer eligible for federal student assistance.

So there would be a bright line after two failures, you would simply be out. Under the Obama administration, schools had a little bit of an opportunity to try and get the debt to earnings ratio back to an acceptable level that Biden administration so far is proposing to take that away. A second thing that's going to happen is that the Biden administration is proposing to include parent loans into the debt to earnings ratio. They will not however include parent earnings as part of that ratio. So the debt that parents incur as part of a parental loan plus loan will be factored into the debt to earnings ratio. The logic here is that students cosign that, students are also responsible for repaying a plus loan. As a result, the administration saying, we're going to include that in the debt to earnings ratio, but we're not going to factor in parental earnings.

So obviously this is going to make the debt to earnings ratios a little starker than they would otherwise be. Third idea that's gotten some attention, just recently is several of the non-federal negotiators in the panel number two have recommended that the federal government prohibit colleges and universities from withholding transcripts, if the student owes a debt to the college or university. This obviously is going to have some implications for institutions. It'll have implications for students, particularly if institutions were to decide that they ought to turn the debts over to a debt collection agency, but this is something that's been introduced into discussion. It's not clear where it's going to fall out in the third session. Finally, they're going to expand the debt to earnings ratio information and provide it to more programs, at more institutions, even though the eligibility tests will not necessarily apply. So debt to earnings data will be calculated for all programs.

Non completion will be calculated for all programs. Job placement rates will be calculated for all programs, a significant amount of additional data. In all likelihood, the department will not reach consensus on regulatory package two. At least not the more controversial parts of it like gainful employment. If they do not reach agreement on it, they will, of course have to go through a full Duress regulatory process before they can put the regulations in place. The key date becomes November 1st, because under the higher education act, the department must publish in final form, any regulations if they are to take effect on July 1st of the following year. In other words, the department has to say by November 1st, this is what the regs are going to look like next July 1st, if they have haven't published them in final form, the clock resets, and they can't take effect until the July 1st of the following year.

So I think what we will see is a significant effort to expand gainful employment, information and consequences. I think the department will not get consensus on it, and therefore won't be able to put it in place for July 1, 2023. But I think it's highly likely we will see those regulations in place as of July 1, 2024. So a lot of things going on, this is sort of natural in the second year of any administration, the agencies get their people in place. They start getting up to speed. They're taking on more activities. And that's kind of what we're seeing right here is the Biden administration's gotten more people confirmed by the Senate. They've got a number of regulatory fronts moving, and we're going to see this across the board. So I've gone on quite a while. Sarah, why don't I stop here and see what things I've left out and what things you might want to add to what I've just said?

Sarah Spreitzer: No, that was great Terry and I think, thinking about the timing of the Biden administration here, I think their first year, a lot of their time was spent unwinding the regulations that were put in place by the Trump administration. And now they are looking to sort of their regulatory agenda. But we've talked about this a bit where given the fact that Congress can't reauthorize the higher education act, or there is the lack of movement within Congress means an administration is going to be very active on the regulatory period. Do you see this as kind of a whiplash thing that's going to happen with each new administration now is going to be this regulatory process that's going to make major changes to things like Title IX?

Terry Hartle: Yeah, I think as long as Congress is unable to act, you will see the executive branch agencies doing more and more things to advance the agenda of the administration that is in power. We saw that in the Obama years, we certainly saw it on steroids in the Trump years. And we're seeing it again very clearly I think with the Biden administration. We are usually pretty lucky in higher education, which is to say that once regulations are put in place, they typically don't change very much. So once institutions know what the regulatory requirements are, they put the processes in place on campus to deal with it, and they don't have to worry about significant shifts in direction. What we're worried about is that as the executive branch has to do more and more stuff itself because Congress can't do it. We might start to see regulations change every four years.

And these could be significant changes. Title nine sexual assaults, the most difficult, complicated regulation that the department of education has. Colleges and universities really need to know what the rules are, what they're expected to do, what the requirements are that are imposed on this, particularly important for smaller schools that might not have a significant administrative staff to sort of work this through predictability and certainty about regulatory requirements as a great value for institutions, particularly thinly staffed institutions. But now I think we have to recognize the possibility that we might see a lot of regulations come and go, depending on which party controls the White House, because it takes a while for the Department of Education to do regulations. The delays caused by negotiated rule making. They can't change regulations quickly, but they certainly can change them once they go into place. They can't be changed again without going back to negotiated rule making. So I suspect in the years ahead, campuses will be paying even more attention than they have in the past to what's going on inside executive branch agencies, because I think that's where the action's going to be.

Sarah Spreitzer: So a very busy spring on the regulatory front, and we've had a few questions come in regarding negotiated rule making. The first is regarding the expansion of gainful to nonprofits. Is that what we're going to see happen through negotiated rule making?

Terry Hartle: I think what we'll end up saying is that the data will be applied to nonprofits but the consequences will not. There are two definitions of institution of higher education in the higher education act. Only one of the definitions deals with gainful employment that usually applies to for-profit schools or largely to for-profit schools. That's where gainful employment was originally aimed. I think what the Biden administration is saying is that the information itself, even if the consequences, the elimination of programs from eligibility, isn't carried through giving students, families, the public, that information about things like debt to earnings ratio, job placement rates, non completion rates, that's important enough stuff that we're going to move to do it, even if we cannot impose the penalty of taking away student aid eligibility.

Sarah Spreitzer: So we're now on our third negotiated rulemaking panel, right? Because there was one last year, do you see the department carrying out future negotiated rulemaking panels? Is this just the start or are they going to be... Is this going to accomplish everything they want to accomplish through rule making?

Terry Hartle: Oh, I'm sure that they have a much broader set of things that they're hoping to accomplish. But one of the challenges, the department faces is simply having the bodies to do all the things that they want to do. Remember like many agencies, the department of education lost a significant number of staff during the Trump administration with fewer people. You can't do as much as you might otherwise be able to get done. It creates a lot of choke points in the executive branch. Putting regulations into place is an extraordinarily complicated, slow, cumbersome process that can't be done quickly. There really aren't too many shortcuts. Indeed the Department of Education because of negotiated rule making sometimes has to take an exceptionally long path. So while I think the Department of Education would like to do more, I think they're going to find themselves challenged because they won't have the bodies to do it with.

In addition, as I mentioned earlier, we're going to have the title IX regulations that will come out this spring. Last time we had title IX regulations, the department got over a hundred thousand comments on them. Later this spring, we think the Department of Education is going to begin to restart student loan repayments, that too is likely to be a complicated time consuming labor intensive activity for the agency. So yeah, I think the department probably has a much longer list of things they'd like to do on the regulatory front. But I think the challenge they will face is just having the bodies to get it done.

And I think when we have the fall election, if the Republicans take back control of the House or Senate, you're going to see either or both arms of Congress taking steps to slow down agencies from putting regulatory changes in place. So the Department of Ed really has a window right now, between now and the end of the year, if they lose control of either the House and Senate, when they can really move things pretty quickly. But you do have the possibility of congressional involvement if they don't get it done this year and Democrats lose control House or Senate. So yeah, the agendas the people that carry it out are not necessarily there.

Sarah Spreitzer: So Terry, that tees up, I think our last question that we received from the participants, looking forward to the midterms and looking into your crystal ball, if Republicans take over Congress, the House and the Senate next year, what can higher education expect?

Terry Hartle: Well, I think what we'll end up with is sort of a more contentious political environment than we have at present. You will have a House and Senate that may not have a substantive policy agenda, but they will certainly want to put the spotlight on the Biden administration and whatever it is that the Biden administration is doing. They will start the, to the run up to the 2024 presidential election very early. So I've noticed that to date Republicans have not said, if you turn control of the House or the Senate over to us, we pledge to do these three things. Right now, they're not running on a, we have an agenda that we're going to carry out. They're running on an agenda that says somebody really needs to pay attention to these guys. And we're going to watch them real closely. Now, one of the questions is will the Republicans decide to nationalize the election by, in essence saying, elect us and we promise to do these three things or five things.

Now we've seen this before. This was what the Republicans did in the 1994 midterms, was the first midterm of Bill Clinton's administration, where they proposed the contract with America and promised to pass 10 pieces of legislation if they took back control of the House. They did take back control of the House. They did pass all 10 pieces of legislation, none of which were ever enacted into law, but they sort of established a framework around the election that said, this is the positive stuff we're going to do. So far Republicans haven't done that. It's early, they're talking about doing something like that, what they would do remains to be seen. I think if Republicans take back particularly the House, we can look at some of the controversies we're seeing in some of the state Houses right now about education and think that those might be brought into play at the federal level as well. So the spectacle that is the American national government will continue to elude easy description or prediction about what's going to happen next.

Sarah Spreitzer: Great. Well, I think that's a great place for us to end on. That was quite a lot to talk about on a week when Congress is in recess and it would otherwise be quiet, but that gives our participants a lot to think about. So thank you to everybody for joining us. And we look forward to seeing you in March for our next Public Policy Popup.

As always podcast friends, you can check out earlier episodes and subscribe to dotEDU on Apple, Google podcast, Spotify, Stitcher, or wherever you listen to your podcast. For show notes and links to the resources mentioned in the episode, you can go to our website at ACEnetdotEDU/podcast. And while there please take a short survey to let us know how we're doing. You can also email our us @podcastacenetdotEDU to give us suggestions on upcoming shows and guests, and a very big thank you to the producers who helped pull this podcast together, Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony TrueHart, Isani Stenson and Fatma Gome. They do an incredible job making this happen and making John, Mushtaq and I sound as good as possible. And finally, thank you so much for listening.

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​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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