Higher Ed Policy Predictions for the Fall


​​​​​​​​​​​​​​Aired September 29, 2022

Jon Fansmith and Terry Hartle are back to give their predictions for what Congress will dive into this fall before it adjourns ahead of the midterm elections. On the table are a continuing resolution to fund the government through the end of the year and NDAA legislation. They also talk about how the administration is getting ready for the rollout of its massive student loan forgiveness plan, despite the continuing threat of legal challenges. Terry and Jon answer listeners’ questions, including on the Deferred Action for Childhood Arrivals program regulations and the future of the Higher Education Act.

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

Senate Poised to Vote on Stopgap Funding Measure as Deadline Looms
The Washington Post (sub. req.) | Sept. 29, 2022

CBO: White House Plan To Cancel Student Loan Debt Costs $400 Billion
The Washington Post (sub. req.) | Sept. 26, 2022

Lawsuit Aims To Stop Biden's Student Loan Forgiveness Plan
The Washington Post (sub. req.) | Sept. 27, 2022

New Title IX Rules Get 235,000 Comments
Inside Higher Ed | Sept. 14, 2022

ACE's comments to the Education Department on proposed Title IX regulations

Biden Administration Issues Final Rule on Protections for 'Dreamers'
Roll Call | Aug. 24, 2022

Student loan debt relief FAQs
Federal Student Aid

Student loan debt relief contact information
Federal Student Aid

Public Service Workers Have Until October 31 to Apply for Student Loan Forgiveness Under Temporary Waiver
CNN | Sept. 28, 2022


 Read this episode's transcript

Jon Fansmith: Hello and welcome to dotEDU, the higher education policy podcast from the American Council on Education. In this episode of our monthly interactive recording, Terry Hartle joins me to talk about what's happening in Congress, the administration, and the courts this fall, and what that might mean for your campus. As always, we appreciate your questions and suggestions for show ideas, and you can share those with us at podcast@acenet.edu. That's podcast@acenet.edu. Now, enjoy the conversation.

Well, hello everyone and welcome to today's Public Policy Pop-up. Thank you for joining us as we enter fall here in Washington, DC. I am Jon Fansmith in Government Relations here at ACE, and I am joined by the man, the myth, the legend, the man himself, ACE's senior vice president, Terry Hartle. Hey there, Terry.

Terry Hartle: Hi, Jon. Thanks for that lovely introduction.

Jon Fansmith: You know, I want to make sure I'm showing you the appropriate level of esteem.

Terry Hartle: Yeah, well if it wasn't so sarcastic, I'd feel pretty good.

Jon Fansmith: I said the appropriate level of esteem, right? Well anyway, Terry, Congress is here in town. They are working to resolve some issues before they shift fully into campaign mode going into the midterms. And today we're going to talk a little bit about what's on the agenda for higher education in this fall coming up and what people should expect to see happen. So, before we get into that, just a reminder to people who are participating, if you are listening live please send any questions in through the chat function and we'll do our best to address as many of those as we can. We have already received a number of questions in advance and we'll attempt to answer as many of those as we can get to. So, that out of the way, Terry, what is top of the list in terms of what Congress has to do this fall?

Terry Hartle: I think the first thing we should do for our audience is distinguished between Congress and the executive branch agency and the courts. The fact is we've got three months left in the calendar year. We've got about that much time left in the life of the 117th Congress, and there is very little that they absolutely have to do before the Congress adjourns. They have trouble doing things under the best of circumstances. When we get to the run-up to the election, it gets ever more complicated. I think at the top of the list of things that you and I are watching is what Congress is going to do to keep the lights on of the federal government after midnight on Friday night. As I think all of the folks listening to us know, the federal government starts a new fiscal year on October 1st. As of October 1st they have to have a budget in place to keep the federal agencies operating or all the federal agencies have to shut down.

We're now 72 hours away from that or so, and the fact of the matter is we don't have a temporary spending bill to keep the government operating. The issues are many, because this is a last legislative train leaving the station. So there are a lot of people who want to add a lot of stuff to the continuing resolution, most notably West Virginia Senator Joe Manchin's proposal to ease permitting with respect to environmental projects. Just this morning Senator Manchin announced that he had asked that his proposal be removed from the continuing resolution because he hadn't attracted enough support and he did not want that to delay any longer action on a continuing resolution. So Jon, I would suspect at this point that, while there are lots of smaller things in play, that it's likely that Congress will move forward and continue in the continuing resolution in a timely fashion, that we will not see any sort of shutdown of the federal government. Is that the way you see it?

Jon Fansmith: Yeah. No, I think that's exactly right. We've had situations in the past where a shutdown has been forced by one party or the other for political reasons. This is clearly one where nobody wants a shutdown. The CR is projected to run out December 16th, so before the end of the year. All indications are both parties want to get to this, get it done, get it out of the way so it's not hanging over their heads as they head out to the midterms.

There's a couple things working here too. That deadline of the 16th, it keeps it in this calendar year. That's kind of important because Senators Leahy and Blunt, the chair and ranking member of the appropriations committee in the Senate, they're both retiring, so this will be their last year. This is the end of their time in Congress.They would both have said publicly they would like to resolve appropriations before they leave. They don't want it kicking into the next year. They don't want to see the sort of thing we saw this last appropriations cycle where it went into March. They would like to do it and retire on that note.

Otherwise, in terms of what we are looking at, there's really not much in the CR that's of particular impact to higher education. You mentioned Senator Manchin had the energy permitting piece. Beyond that, there's money for the Ukraine. There was some discussion about money for COVID or monkeypox. It doesn't look to have made it into the final version. The administration in the higher ed world had asked for additional money for Department of Education loan servicing. That also did not make it in.

Really the last question mark about this, working under the assumption that Congress wants to pass this, the Senate will pass this, is exactly what they'll do to do it, and whether amendments will be attached. As we record this, both Democrats and Republicans in the Senate are having their party lunches. The big remaining question is, will there be a push for amendments? If so, how many will be offered? What will be considered? There's a very likely possibility amendments will not be considered and they will get to a vote either late today or tomorrow, the goal, of course, for the Senate being to get out of town by Thursday afternoon. If they do that, they have a relatively clean CR without controversial pieces like the Manchin piece that was stripped out, the House should be able to take it up relatively quickly and pass it before that Friday midnight deadline.

Terry Hartle: Right. So we now expect the CR to move forward in a regular, more or less normal fashion. We expect Congress to adjourn for the election sometime next week, most likely Thursday or Friday. We expect the continuing resolution to run through December 16th, which means we will have a lame duck session. Presumably Congress will reconvene after Thanksgiving, probably take a couple of weeks after the election to see how all the close races turn out, and then they will try to decide what to do next. And the options when we get to December will be to kick the can further down the road and give us a continuing resolution that will go until February, say, or maybe March, or to pass permanent spending bills that will provide a budget for all of fiscal year '23.

Obviously from our perspective, getting a final budget passed gives campuses and students much more certainty about what money will be available and what changes will be coming. But this is one of those things where the needs and desires of the higher education community really don't come into the political calculation people will be making on the Hill.

Jon, when we get to the lame duck, the other thing that's hanging out there is the National Defense Authorization Act. For those who don't know, this is a massive piece of legislation. It does pass annually. It's one of the few things Congress manages to do every year. It is essentially an annual reauthorization of the Defense Department. Jon, what do you want to share with folks about the NDAA bill this year?

Jon Fansmith: It's an interesting one. And I will say also that our colleague Sarah Spreitzer follows this as closely as anyone. So she's been keeping our members updated on what's going on with that.

But as you pointed out, Terry, this is a bill that passes annually. It passes with huge bipartisan majorities. There's been discussions since the spring about what we're going to do on NDAA, what might be included in NDAA, in part because it's that Christmas tree bill, right? It gets thousands of amendments offered to it. It turns out to be the place that, because of those large bipartisan majorities, because a lot of members don't want to take a vote, no matter how well intentioned, saying they oppose reauthorizing the Defense Department, you tend to see a lot of things that get attached to it that frankly aren't really related to defense spending or defense policy, but are things that Congress can use to resolve business before they go to the end of the year. It makes a lot of sense that this is falling to the lame duck session. It allows members to put things forward, to get things to their leadership to clear the decks on a lot of little things before the Congress switches over in the new year. We will keep tracking that.

As I mentioned, there are often thousands of amendments offered, obviously not thousands of amendments considered, but every year we see different things that impact higher education. We expect to see that again this year, particularly around things like scrutiny of foreign funding or foreign gifts to institutions, security provisions, things like that. But in the past we've also seen efforts around Pell for short-term programs or the College Transparency Act proposed for this. So, it's a really big slate of things and while we can't guarantee what the higher ed impacts will be, it's very likely there'll at least be discussion of a lot of higher education issues when they take that up.

Terry Hartle: Yeah. I'll simply mention for those who are with us that the one thing we are particularly watching as we head to the NDAA legislation is whether or not any of the provisions involving research, security, and foreign funding that were in the original Senate CHIPS bill, if somebody will try to add those to the Defense Department reauthorization. Some of these could significantly affect record keeping requirements and funding opportunities for any organization that's involved in scientific research. Obviously, colleges and universities would be at the top of that list. It's a little soon to tell, but that's the big thing I think we'll be watching on the NDAA.

As you've mentioned, Jon, we have seen in the past, efforts to put substantive legislation in the NDAA that would affect Title IV student aid funding. Those typically don't get very far, but that doesn't mean we wouldn't see something put forward this year as well. We'll just have to wait and see. But I think this is the end of the Congress we're dealing with. When they come back in December, there will be a lot of desire to do their work to whatever extent they can and go home. So, I think there'll be a great deal of pressure to get the NDAA approved as quickly as possible. But if we're not-

Jon Fansmith: Terry, sorry to interrupt, but on that point we do have a question from Stacy Stout about what is the timing of taking up the NDAA. And I'll just say, I don't think we know other than during the lame duck. We have seen supposed deadlines for things to be considered. We have seen discussions about moving it forward, particularly as you mentioned, Terry, with the CHIPS bill and the innovation bills. There was some idea of pairing provisions there. I don't think we have a specific answer to that other than look to the lame duck for when we'll see NDAA. But you were saying, Terry? I'm sorry for cutting you off.

Terry Hartle: No, what I was saying was that Congress might not be doing much that will have a dramatic impact on higher education in the next 90 days, but we fully expect to see a lot of initiatives going on in the executive branch that could have a big impact on institutions and students. And I think, Jon, this starts with the Department of Education and their plans to implement President Biden's student loan forgiveness initiative. The Department has begun to lay out its plans. Why don't you walk through for folks what we know about the Department's plans over the next 90 days?

Jon Fansmith: Yeah. And I'll say for those of you who are either dotEDU podcast listeners or not dotEDU podcast listeners, we just did a podcast pretty in-depth on the student loan forgiveness proposal with Justin Draeger from the National Association of Student Financial Aid Administrators. Justin is great about this, went into great depth about what the proposals are, how they would work, so I'd recommend checking that out for a little bit deeper dive.

But the Department is now moving forward to implementing this proposal, and they have said first and foremost that the application for borrowers who would be eligible, who would like to get the $10,000 or $20,000 of cancellation applied to their loans, should be available by early October into mid-October. That's the goal. They would very much like to get people applying as soon as possible to keep it within this tax year. The Department has also mentioned that they have about eight million borrowers who they believe they already have existing financial aid information for, income information, that they can award cancellation to directly.

And Terry, since we did that podcast there have been two big developments around this forgiveness issue. The first is that CBO came out with a score this week and said that they estimate that the cost of the cancellation program will be about $400 billion. Now, CBO was also very clear to note that their estimates could vary significantly. There's not necessarily a ton of data, particularly because, as we just talked about, the process has not even begun. The application form is not out there. But $400 billion is a significant amount of money. We have already seen that raised in terms of criticism of the program by opponents of the program, particularly Republicans in Congress. And that is going to be a talking point, particularly as we go into these elections. That is $400 billion of taxpayer money being spent on this. The other thing that happened, and this is very new, yesterday a lawsuit was filed by an attorney, a resident of Indiana, which is one of the six states where loan cancellation is taxable.

And this is the first lawsuit that would challenge the legality of the Department's cancellation program. It is still very unclear exactly what the path forward is for that lawsuit. I know you and I have both talked to a bunch of people who have varying opinions about whether the plaintiff in this case has sufficient standing to have their case heard, whether it's sufficient to bring the case to move it forward. But when this first happened, there was a lot of discussion. I think Senator Ted Cruz talked publicly about the idea of challenging this in the court. We've seen a lot of rhetoric about this idea of being illegal or things like that. This is really the first step in a legal challenge to forgiveness. Terry, just quickly, your thoughts on those things. I know you've been following it pretty closely. Anything you want to add to that?

Terry Hartle: The legal challenge, Jon, as we understand it, is that the individual who has sued to block this has said that he is in the Public Service Loan Forgiveness program that the Department of Education administers that he is scheduled to have his loan canceled in that fashion. If his loan is canceled via loan forgiveness, the Biden administration's initiative, he will apparently, given the state he lives in, be charged income tax on the amount that is forgiven. And so the issue here is really relevant to people in states where state tax laws would require taxation of a benefit.

Now, just this morning the White House indicated that the Department of Education fully plans to give people a choice to opt out of the cancellation. This is new. We hadn't heard this before. The Department essentially had been saying, “Look, we've got records on eight million people. We can forgive their loans on our own right up front." Now the administration seems to be saying, “Well, we're going to ask those eight million people if they want their loan forgiven." That may well undermine the lawsuit. On the other hand, it adds another big step to this effort that the Department of Education is going to have to make to deal with tens of millions of student loans and deal with individual borrowers.

So I think we've said before that what the Department of Education is going to have to do here is equivalent to building the space shuttle while the rocket is on the launching pad. This is not something the Department has any experience with. This is a completely new undertaking. It's an enormous amount of work. The Department obviously wants to get this correct. The Department is desperate to do this perfectly because it's such a high priority to the Biden administration. But it is such a huge task that I think we have to reasonably expect some things will not go as smoothly as people hope. So I think that's my take on it as of right now. Do you see it any differently?

Jon Fansmith: No. I mean, I think that's it. We have been talking about this before. The Department is in a tricky place in some regards because what they want to do is make this as easy to access and as widely available as possible. But it's combined with, there's an income verification component, now the idea of adding an opt-out to it. We know the more steps you take, even if they're good, responsible steps, it's going to make it harder for people to access that benefit, it's going to make it harder for them to access that quickly.

So I think the Department, this announcement of the opt-out for the people who would otherwise automatically receive it, you can see they're responding to what the lawsuit raised, but they're also trying to walk that tricky line of, is it still easy to access? Can borrowers still get to it? While ensuring that it complies with the policy goals. It's not easy and it's a lot of work. And you take that work for one borrower and, like you said, you magnify it by up to 44 million borrowers in the student loan program, the task before the Department is substantial.

Terry Hartle: I think that's exactly right. And the Department is clearly trying to get this done very fast. The Department plans to release the applications, I think, Jon, early October. They're hoping that people will start to apply by mid-October. They are hoping to have the bulk of the applications received by the end of the year. Again, this could be 20, 25, even 30 million applications that might be submitted. That's a huge workload burden for the Department of Education. Why the rush, Jon, to get this done this year by the Department of Education, or at least to make such a big progress in getting it done this year?

Jon Fansmith: Yeah. I think there's a couple different reasons, and I think some of them are to the borrowers' benefits. To get them done in this tax year so that it's resolved, so that the cancellation is off the books for borrowers.

I think it would also be reasonable to expect that there's some concern about the possibility of change of control in Congress and what that might mean. We talked a little bit earlier that congressional Republicans, House Republicans in particular, have called this program illegal. We've seen that there's a lawsuit that's filed. It was filed by a libertarian group. There will be a lot of scrutiny. And if Democrats do not control both chambers, which certainly for the House is the expectation from a lot of prognosticators, the sooner you can get this program going, the sooner you can get cancellation in place. In some ways you build momentum for keeping it in place before you might have to face the kind of oversight and scrutiny that could throw a wrench into the works.

Terry Hartle: All right. Well, the Department is not simply just doing student loan forgiveness, Jon. They've got a number of other things that are underway. We're waiting to see what they do with some regulatory proposals that they circulated. These were two regulatory packages that stemmed from the negotiated rulemaking sessions that they did. Why don't you summarize for folks where we think we are on those and what the chances are that we will see them by November 1st?

Jon Fansmith: Yeah. And I'll step back to a second and say why we're talking about November 1st. A lot of people probably know this, but the way the Department's rules work, if you get your regulations finalized by November 1st, they take effect by next July 1st. These are for Title IV regulations, which are the ones the Department has mostly put packages out on. If you miss that deadline, it takes a full nother year to implement. So particularly for an administration that's in their second year now, hitting that deadline is really beneficial. It gets their policy preferences in place as soon as possible.

You look at the two packages on Title IV regulations that they have out there. The first one they moved was on targeted forgiveness. And it relates a lot to this discussion we're having about cancellation. It was changes to the Public Service Loan Forgiveness program, changes to the total and permanent disability discharge provisions. It was a lot of different ways for borrowers to get relief. So you can see this very intensive effort by the administration, and particularly by the Department, to help borrowers, particularly borrowers who might be struggling. They would like to get that in effect as soon as possible.

I'm going to come back to the PSLF in a second. But those changes to PSLF, the regulatory changes, in a lot of ways are designed to do what you can to make the existing PSLF program work the way the current waiver process, which is expiring, works. So, they want to get that in place. Particularly if those regulations are in place, they get them in by November 1st, it would be very reasonable for them to also say, “Let's move forward the implementation deadline so we don't have this gap where the waiver expires October 31st, but the new regs don't take effect till July 1st, and borrowers applying for PSLF in the middle are under the old rules." The timing is important here, I guess is what I'm trying to say in a more complicated way.

It's also interesting because there was a huge number of topics that the Department of Education was considering. They broke those up into two rulemaking processes. They also decided at a certain point after those rulemaking processes had resolved, the negotiating committees, that some of them they just aren't going to be able to take up and they bumped a few into the spring. Some of these are very high profile. The gainful employment regulation's probably highest among them, but also certification procedures and financial responsibility and the ability to benefit and administrative capability, all of those they essentially punted on into the spring. So we won't see those until next year.

Terry Hartle: And when you say bumped them to the spring, what I think you mean is that we will not see the final regulations published until sometime in the spring, which means that they would not take effect before July 1st, 2024. I think, Jon, if memory serves, there were about 16 separate regulatory items in the two negotiated rulemaking packages that the Department of Education presented. The NPRMs that we have seen deal with about eight or nine of those, and the rest are simply going to be postponed.

So this is one of the challenges the agency is facing. It is a challenge all agencies are facing. They've got a lot of things they want to do and a lot of it is regulatory and therefore is very labor- and time-intensive. So the Department of Education is not able to do as much as they want as fast as they want because the regulatory process is so complicated and so long. Again, this is not simply the Department of Education. All federal agencies are wrestling with this in the Biden administration.

I think in terms of other regulatory packages, Jon, Title IX, as everyone knows, comments have been submitted. The Department announced they had received about 250,000 comments on the regulatory package that they had proposed. This is roughly two times the number of comments the Department of Education received on the Trump administration's Title IX regs, and it's probably 15 times more comments than they would normally get on any regulatory package. The agency now has to go through the comments. Every comment has to be looked at, and the Department of Ed has to be able to show that they have considered every single comment when they publish their final regulations. They don't have to do what the commenters ask, but they have to show that they heard what the commenters were asking about, and this is going to take them a while to do.

There've been some stories that the Department of Education would like to get the regulation out by spring so that they could have it in place in the fall of 2023. I think that is an exceptionally ambitious schedule. It took the Trump administration about 16 or 17 months to plow through 120,000 comments. The Biden administration has twice as many comments that they have to deal with. So this is going to be sitting out there for a while. In the meantime, schools are still pursuing Title IX cases following the Trump administration regulations, and that's going to continue.

Another regulatory initiative that is out there and we can't be sure what the administration plans are, deal with transgender students and intercollegiate athletics. As I think the folks on the call will remember, we fully expected the Department of Education to address transgender students in intercollegiate athletics in the Title IX regulation. At the last minute they pulled that specific issue, transgender students in intercollegiate athletics, from the regulatory package and announced that they would do a separate rulemaking on that issue later this year. So sometime later this year we may or we may not see a draft regulation dealing with that specific issue.

In terms of other federal agencies, Jon, I think the one that I would mention is the Department of Labor. As some of the folks on the call know, we have long expected the Department of Labor to issue a regulation changing the status of individuals eligible for overtime pay. Under current federal law, if you make more than $36,000, you are probably a salaried employee and not eligible for overtime. There are some exceptions, but in general the income threshold is $36,000. The Biden administration wants to raise that threshold significantly and make more people eligible for overtime because they think this will help deal with the economic inequality in the country. They think this would be a great help to middle-income families who have to work more than 40 hours a week. We have heard numbers as high as $70,000 or $80,000, which would make a lot more people at virtually every employer in the country eligible for overtime pay. Therefore, the wage burden for employers across the economy could go up considerably.

The Department of Labor has said they intend to have the regulations out this fall. Whether they will make that self-imposed deadline is uncertain. Frankly, we haven't heard much about this draft regulation for a few months, so we don't really know what the status of it is, but it's something that is clearly coming sooner or later.

Jon Fansmith: Yeah. And I would note too, people who are listening, ACE has tracked this. We have, I believe, filed formal comments with that. Those are all available on our website. We can link to them in the show notes.

Terry Hartle: Jon, one final thing that we're talking about in terms of what might happen in the next few weeks or months: DACA. The Biden administration has now published regulations establishing the DACA program pursuant to the requirements of the Administrative Procedures Act. DACA was originally put in place by the Obama administration as an executive order. Because it didn't go through the regulatory process it was vulnerable to a challenge that it had not been properly promulgated.

Well, at the present time the Biden administration has gone through an NPRM. They have now published final regulations, but we are waiting from a court decision from the Fifth Circuit Court of Appeals in Texas about the legality of the DACA program. The Circuit Court did receive, at their request, a briefing on the Administrative Procedures Act and the regulations the Biden administration has published, but we're just waiting for them to issue a decision that will essentially say, “Yes, this program was properly created," or in all likelihood it will say, “No, this program wasn't properly created."

If they conclude that the program, even though it has now been through the regulatory process, was not properly created and is therefore void, it raises a whole lot of questions about what will happen to people who are currently in the DACA program. We're not taking new registrants in DACA. The number of people in DACA has been declining, but there's still hundreds of thousands of people, a good number of whom are on college and university campuses. Depending on what the court rules and the specific elements in their decision, their status could be threatened very quickly. We would expect this to be appealed to the Supreme Court whichever way it goes. The court may or may not elect to take it up. But we haven't talked about DACA with folks for quite a while, but it's very much something that could be on the front page in the newspaper very quickly.

And Jon, one final thing. The Supreme Court's going to hear, on Halloween, the two cases dealing with the use of race in college admissions, one involving Harvard, one involving North Carolina. We're not entirely sure if the Supreme Court is going to allow the oral arguments to be audibly available at the time of the arguments. They had been doing this during the pandemic. It was widely commented on as something that was very good in the interest of transparency. Not clear whether the court will continue it. But as of October 31st, we will have the Supreme Court wading once again into the issue of race in college and university admissions. And obviously the implications here are pretty big for colleges, universities, and everyone else.

Jon Fansmith: And to be clear for folks, that will not be a decision by the Supreme Court. It'll just be the hearing on it.

Terry Hartle: You're right.

Jon Fansmith: But which will be important. The lawyers here and that we've talked with have pointed out, you can tell a lot about where the judges may be going, where the votes may be going based on the questions they ask and the responses they hear and their follow-up. So, obviously, if we are able to hear that, hopefully it will shed a lot of light on the thinking of the court and what we might expect when we do ultimately see a decision. But Terry, before we get into some of the other questions that have been submitted, going back to DACA, and this actually is a question that had been submitted in advance, somebody asked, and setting aside what may happen with the Fifth Court, the Biden administration's regulations around DACA, they re-regulated, they established a regulatory basis for it, would that provide Title IV aid eligibility for DACA recipients?

Terry Hartle: No. Title IV aid eligibility is not provided to DACA recipients. Under Title IV, one has to be a citizen or a green card holder to receive federal student aid. So DACA in theory provides some protection for those people to remain in the United States, but it would not make them eligible for Title IV student aid.

Jon Fansmith: Thank you. And one more piece of housekeeping before we go on to some of the questions. People have asked about how do you find out around the loan cancellation information from the Department of Education? We are very eager that you talk to the Department of Education about that and not ACE about that. So I think our producers are going to put in the show notes, maybe even the chat too for people who are participating live, that the Federal Student Aid Information Center has a contact number. They have FAQs and email form. Those are the things you should be using and you should be directing people who ask you to use. And it looks like they're putting those links in.

Terry Hartle: So in other words, Jon, people can call the Department of Education and ask if they are eligible for student loan cancellation.

Jon Fansmith: Yes, and what they might need to do.

Terry Hartle: 45 million student loan holders. Okay.

Jon Fansmith: Yeah. Who's eligible and on what terms and answer all those questions.

Terry Hartle: All right. And you-

Jon Fansmith: So that you don't have to.

Terry Hartle: ... can also fax a question, I think, can't you?

Jon Fansmith: We were joking about that, but I have not seen a fax number. We can dig that up though, if anyone's really interested. So, Terry, we have talked a little bit about on the omnibus. We've talked about the CR. There's a bunch of questions about the budget and appropriations process. I think I'd start with a big picture. Someone asked, “What are the Department of Education's funding priorities for..." They have, I think, for 2023, but I think they mean for the next fiscal year, for the 2024 fiscal year.

Terry Hartle: I think that at this point, Jon, I would say that the best indication of what the administration's funding priorities will be for just about anything can best be intuited by looking at what they've asked for funding for in the past couple of years. I don't think we've seen any major new higher education priorities pop up that are likely to result in funding. And indeed, given the controversy over the student loan forgiveness, I think the Biden administration probably doesn't want to pick up on any more controversies in higher education than absolutely necessary.

So we would expect to see an increase in funding for the Pell Grant program. We would expect to see an increase in funding for HBCUs, Hispanic-serving institutions, tribal colleges, and the other specialized institutions that currently receive funding from the special appropriations, because the Department of Education and the Biden administration is very committed to those institutions. We would expect to see more money for TRIO and GEAR UP. We would expect to see more money for biomedical research. We'd hope to see more money for National Science Foundation, and we probably will, but we probably won't see anywhere near as much money as we would hope to see in those areas.

But Jon, other than those broad areas, I don't think there's anything we can point to and say we think that we're going to see a new initiative affecting higher education along the lines of X. There just hasn't been any discussion of it. There's no evidence of new policy proposals being developed. And as we've been at pains to point out in this conversation, the Department of Education has plenty of other stuff on their plate at the present time.

Jon Fansmith: Yeah. And I would say, following up on that, we had a question from Tristan Schmidt. You touched on this a little bit about administrative increases to college access and support programs. And Tristan specifically mentioned TRIO and GEAR UP. You pointed out those are likely to get increases.

The other one I think that's been kind of interesting about the Biden administration where you've seen receptivity from appropriators in Congress is some of these programs where overall relatively the amount of budget spending is pretty small, but these student support services, wraparound services, the completion grant programs, CCAMPIS, which is for childcare for students, those are in line for big increases percentage-wise to what they've been receiving. There's an increased attention to those programs and the importance of those programs. Also, because they're smaller programs, a increase that doesn't necessarily pinch appropriators, they can give it a big percentage increase without it necessarily collapsing other parts of their budget. So that's something the administration has pushed for. They've gotten a lot of receptivity from Congress on that. That's another thing I think we'll see a lot of.

But related to this, and another question speaking to appropriations, someone asked, “What is the likelihood that congressional earmarks will move forward?" And I don't think we're supposed to call them earmarks anymore. They're congressionally directed projects or whatever the nomenclature is. But Terry, you have seen earmarks come and earmarks go and earmarks return. Do you think they're going to stay around?

Terry Hartle: For the time being they will certainly stay around, indeed. I think one of the reasons that there is some possibility that we will actually see some spending bills as opposed to continuing resolutions in December is because, as you mentioned, Jon, there are a couple of very senior members of the Senate who are retiring who like earmarks or congressionally directed spending a great deal and have made considerable use of them for the folks in their state. And they're looking at one last chance to provide funding for things that they care about in their states. So my guess is that, for the short-term, earmarks are going to stick around.

I suppose it is possible that if Republicans take control of the House and/or the Senate, they might move to block earmarks. But earmarks are one of those things that has an upside and a downside. And the upside is it makes it a lot easier for the leadership of the House or the Senate, regardless of whether it's run by Republicans or Democrats, to control their members and get work done. So earmarks have a bad name. That's understandable. Earmarks are popular with elected officials. They're certainly popular with the constituents who get them. And I think they will be sticking around for a while. Nothing is guaranteed in today's political environment. Indeed, the Republicans once before banned earmarks, but they have come back and I think they will stick around for a while.

Jon Fansmith: A couple more questions. There's one I particularly want to end on, so I'm going to ask you first. Somebody asked, “What is the fate of the PSLF program?" And I know I touched on, a little bit, the waiver process, which is expiring soon. There's new regulations. But generally I think probably people are maybe a little bit whiplashed by all the different announcements around Public Service Loan Forgiveness, especially now that cancellation has gotten so much attention. So, Terry, looking forward, what do you think? Where do you think it's going with PSLF?

Terry Hartle: Well, the PSLF program has been operating under a waiver authority that has made a lot more people eligible for Public Service Loan Forgiveness. This is proving very popular. Lots of people who wanted to participate in PSLF and thought they were settled to participate in PSLF that found themselves excluded have now had that door opened again. We have been very outspoken with the Department that we hope they will extend that waiver period. The regulatory waiver that has opened the doors to more people benefiting is scheduled to close on October 31st. We are hopeful that when the administration announces in early October its plans and provides its application for student loan forgiveness, that they will announce that they're going to extend the waiver period for PSLF for another year. So it's still on the books. It has worked very well for the last year. We're hoping the administration will keep it in a position where it will work very well going forward.

Jon Fansmith: Thank you. And this is the question I wanted to end on. Someone asked, “This is the last chance for you, Terry, to use your crystal ball on whether we see reauthorization for the Higher Education Act in our lifetime," mind you. So I think we should probably frame out what lifetime we're talking about. But obviously a little news about you. We'll get to that in a second. But Terry, HEA reauthorization. Are we going to do it next year?

Terry Hartle: No. Higher education reauthorization, I've been telling people for some time, will happen in 2040, give or take a decade. Higher education reauthorization is an amazingly complicated piece of legislation.

You need some bipartisan level of agreement to move it forward. Hard as it is for people to imagine this, in the 1980s, 1990s, higher education reauthorization would pass the House and Senate unanimously. Today, we've seen situations where both House Republicans and House Democrats, when they controlled the chamber, have put forward a bill that they could put together in committee but they couldn't bring forward to the House floor. In the Senate, without some measure of bipartisan agreement, you can't even bring a bill up in committee.

So I think that the complexities of the higher education reauthorization virtually guarantee that we will not see a reauthorization. We could see specific pieces of higher education legislation, and we're already seeing people introduce legislation that could be considered next year. But the extraordinary difficulty that Congress has in bringing forward legislation that can pass both the House and Senate and be signed by the White House means that any complex, complicated legislation is extraordinarily unlikely to make it through the legislative process.

Jon Fansmith: Thank you. That is a great answer. It is what we have expected and come to expect from you over years. And I would be remiss, we're at time, but before we go, the number one comment we received, Terry, was essentially, you recently announced that you will be retiring. The number one comment we received, multiple people wanted to thank you personally for, I'm quoting somebody, “years of incredible leadership." Obviously, we who work with you every day have experienced that in a million different ways. But before we leave, I just wanted to raise the point that so many other people have seen that and they're reaching out to do that. So any last words you want to offer or should we wrap it here?

Terry Hartle: Let me just say, I hope they're not my last words. My heart is filled with gratitude for the opportunity that I have had to be in this job for this long and to work on behalf of colleges and universities and their students, and frankly, to work with so many great people on so many campuses and so many terrific colleagues in my office. I have been truly, truly blessed and feel incredibly fortunate. I'd also emphasize, Jon, I don't know whether you regard this as good news or bad news, but I'm not completely going away. When I do step down, I will become a senior fellow here at ACE. I will not be involved in day-to-day government relations work, but I will be involved in a couple of public-facing projects that Ted Mitchell and I have been talking about. So you'll still have me to kick around for quite a while.

Sarah Spreitzer: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcast, Spotify, Stitcher, or wherever you listen to your podcasts. For show notes and links to the resources mentioned in the episode, you can go to our website at acenet.edu/podcast. 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 finally, a very big thank you to the producers who help pull this podcast together, Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony Truehart, Rebecca Morris, Jack Nicholson, and Fatma Ngom. They do an incredible job making this happen and making Jon, Mushtaq, and I sound as good as possible. Finally, thank you so much to all of you 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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