dotEDU Live: What’s on the Policy Agenda for Higher Ed This Fall?


​​​​​​​​​​​​​​Aired September 21, 2023

A government shutdown is looming on the horizon, and ACE’s Jon Fansmith and Sarah Spreitzer are back to answer your questions and break down what this means for the higher education community, as well as other issues on this fall’s policy agenda.

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

Democrats Move to Suspend Senate Rules to Advance Stalled Spending Bill
The Hill | Sept. 18, 2023

House GOP Considers Stopgap Spending Bill to Avert a Shutdown
The New York Times (sub. req.) | Sept. 17, 2023

Government Shutdowns and Higher Education
American Council on Education 

Federal Budget Uncertainty Casts Doubt on the Fate of Federal Work-Study, Funding for Other Higher Ed Programs
American Council on Education | Sept. 8, 2023 

Survey on the implementation of proposed regulations for digital accessibility-due by Sept. 22
American Council on Education 

Federal Judge Again Rules DACA Is Illegal
The New York Times (sub. req.) | Sept. 13, 2023 

U.S. Posts August Budget Surplus After Student Loan Cost Reversal
Reuters | Sept. 13, 2023 

Federal Student Loan Borrowers Prepare to Resume Repaying Their Loans
NPR | Sept. 18, 2023 

‘Highly Disruptive’: Proposed Overtime Rules Raise Concerns
Inside Higher Ed | Sept. 6, 2023

ACE Launches Office on National Engagement
American Council on Education | Sept. 11, 2023


 Read this episode's transcript

Jon Fansmith: Welcome to dotEDU Live, the public policy podcast from the American Council on Education. I'm your host, Jon Fansmith, and I am here with my co-host, Sarah Spreitzer. And welcome, everyone, to the 95th episode. Sarah, can you believe we've already had 95 episodes of dotEDU Live in its various permutations?

Sarah Spreitzer: That makes me feel like I'm 200 years old.

Jon Fansmith: Not why I raised it, but good to know.

Sarah Spreitzer: But it's great, it's great. Yay.

Jon Fansmith: It is great.

Sarah Spreitzer: [inaudible 00:00:32]. We're almost to 100.

Jon Fansmith: That's right. We are back after a summer break that, for Sarah, for me at least, was just about as productive as Congress's summer break. So happy to be back with our viewers here on our fifth season, we are kicking off our fifth season. So great to be here. There is a lot obviously happening in Washington DC right now, a lot of it quite chaotic. I know we're going to dig into that and some other things. But Sarah, how did you spend your break? Three, four trips to Europe, was that on the agenda? I forget. I lost track at a certain point.

Sarah Spreitzer: So many trips to Europe. Well, you're just saying that because I'm leaving for Europe at the end of this week, assuming, of course, Jon, that everything would be in good shape with appropriations and the end of the federal fiscal year.

Jon Fansmith: So how are those plans looking?

Sarah Spreitzer: Yeah, not that great. And I don't know if you just got the Politico email that said it's an all-out funding fiasco. Anyway, how was your summer?

Jon Fansmith: It was lovely. Got out of town for a little while, did some things, saw some shows, saw some friends. Good stuff. Nothing crazy but very nice. And no offense to our friends at Politico, but aside from the nice alliteration of funding fiasco, that's not really news.

Sarah Spreitzer: What is going on, Jon? There's a lot of activity. I know there were high hopes for a minibus in the Senate and something going on in the House with a continuing resolution. And we're two weeks to go to the October 1st deadline, so what is happening?

Jon Fansmith: Yeah, it's quite a story, right? And maybe it's easier to start with the Senate because frankly, that's easier to explain, easier to understand and easier to keep track of. The House is a whole bunch of things right now. But in the Senate, they passed all 12 of their appropriations bills out of committee. They were on their way bipartisan, a lot of bipartisan agreements. Pretty clear consensus around the overall levels, the top line levels. So the Senate was kind of being held out as the model of how things should be done. They were putting together a minibus, which you referenced. For people who don't know, a minibus is a package of more than one appropriations bills. In this case it was three, Agriculture, Military Construction and Veterans Affairs and Transportation and HUD. These are widely seen as the least controversial bills. They generally are pretty easy to get support for.

And it looked like it was on a glide path through the Senate. The Senate would be passing their bills on the floor. It ran into a brick wall end of last week into this week. A number of conservatives in the Senate are objecting, mostly to that approach, bundling the bills together. A couple reasons about that. Part of the reason it's done is because it makes it hard to vote against. You throw so many things together that if you support parts of it, you don't want to vote against the things you like just because you might have concerns about other parts. But the other thing in the Senate that's been interesting this year is the conservatives are concerned because when you do a minibus, or an omnibus, roll them all together, you don't have the opportunity to amend it on the floor. And there has been promises that the process would be more orderly, would allow for the amendments to be added.

Conservatives really wanted that. The minibus approach is a deviation from that. It's not entirely clear how this would be resolved, but frankly, it's probably not that important because until we know what's happening with the House… We already have levels for the Senate. I mean, again, all those bills are public. They passed the committees. We've seen the program funding levels. It's not a big deal. The House is a big deal, and this is what everyone's talking about. We are two weeks out from the deadline to meet to fund the government. Very clearly, they will not hit that deadline. The question is, will they be able to get a short-term extension, a continuing resolution, or CR as we refer to it? That's not looking great either.

It's not clear exactly what will happen in the House right now. But Speaker McCarthy, there was a effort to negotiate among two different blocs of conservatives within the Freedom Caucus, Main Street Republicans and Freedom Caucus members. That produced a proposal for an extension bill, a CR, that would cut overall funding by about 8%, which is massive. It's highly unusual to make cuts in a CR. Usually a CR simply carries forward the existing funding levels. Cuts at an 8% level is, I'm not going to say unprecedented because I haven't actually run that down, but my guess would be that would be highly unprecedented, a cut of that magnitude.

The other thing about the House bill is it doesn't include any money for Ukraine, which the Senate has always said, Senate Republicans, Senate Democrats, they're unified in broad support of including that money. It doesn't include any of the disaster relief funding, which was seen as very popular on a bipartisan basis. So add to that, as soon as it was announced, a lot of conservative Republicans in the House started saying, "I won't vote for this bill." I've seen, I think, six House Republicans who have said publicly, either in interviews or on social media, that they are nos on this bill. Speaker McCarthy has a four vote margin. So if those members hold to those positions, his bill can't get through regardless of what Democrats do, which raises a whole nother set of questions. What do you do if you're Speaker McCarthy? If your conservatives won't move an extension bill and you haven't passed a number of your own appropriations bills and the deadline is looming, what is your path forward?

And that's where everyone in town, I think, is saying, I don't see a path forward. I will say, I don't know what you're hearing, Sarah, but everyone, I talk to, people in Congress, people in agencies, lobbyists around town, folks who follow this, is we will absolutely have a shutdown on October 1st. Really, the speculation right now is how long it's going to go. 10 days? Two weeks? Those seem to be the ones you hear most often, essentially where there's enough of a pain point that it forces people back to the table to make concessions. It's just not clear. And you have some people, you see reports all the time that some of the things that are driving the decision-making here have nothing to do with policy. There are a group of members in the House who don't want Kevin McCarthy to be speaker anymore and see this as an opportunity to challenge his leadership, maybe effectively end his leadership of that chamber.

There are other people who have expressed publicly an opinion that they don't believe that there'll be any harm that results from shutting the government down. In fact, they would see that as beneficial. So they see no downside to doing that. There's absolutely political harm. We have seen this again and again and again, that voters do not like government shutdowns and they tend to take it out on the party they see as responsible. Historically, that has been whichever chamber of Congress is the one essentially holding up compromises there. Historically, that's been House Republicans and they have suffered for it in the following election cycle. Will that be the case here? You don't know. It's never a guarantee how the public will address these things.

But it does seem that it's a dangerous game to play in an election year, which again, and we've talked about this all year, with such narrow margins in the House and the Senate and in a presidential election year, full control of the federal government is really on the table in these elections. So we will see, but maybe more importantly, I think we're going to have a shutdown very soon.

Sarah Spreitzer: Well, Jon, some of our listeners may be having deja vu because this sounds very similar to a conversation we had back in the spring about the debt limit, when Speaker McCarthy came to an agreement to set budget levels for spending this year. And isn't there some clause where if they don't reach an agreement, there's an across the board cut in January of 2024? So there was some incentive to move the spending bills through regular order. And then what we saw was in the markups, the Senate and the House were very different places. And I know you've been following closely the proposed cuts that were in House bills regarding Federal Work Study, SEOG, those types of things, which were totally different than what the Senate had.

And so those cuts are still out there and we are still talking about the importance of funding these programs. But for our participants, I think a lot of us have been through shutdowns before. We have a lot of the guidance from previous shutdowns about what's going to happen. And we actually put together a short memo that talks about what institutions can expect during a shutdown. I think a lot of it is timing-wise, as you were saying, is it going to be 10 days? Is it going to be two weeks? The longer it goes on, I think the more painful it is, and both sides have an interest in making it painful for the other side.

Jon Fansmith: And there's two things that really hit on that you said, Sarah, and that was great points to raise too. One of the things about this is there is this deadline. They have to finish funding by the end of the year or else. There's a 1% cut across the board. And all right, 1% doesn't seem like a huge amount of money and so be it. If they're willing to shut down the whole federal government, they might be willing to risk a 1% cut, especially if you think there's already too much spending on government programs. What's interesting about that is it would affect defense spending. In the current proposal, defense spending will go up, non-defense spending will be flat. If you actually go to a 1% cut, it's a big cut for defense because they're not just seeing a reduction which they wouldn't otherwise see, but that increase they would've gotten is going away.

So a lot of people who historically would say they're strong proponents of defense funding but are also taking this fiscally conservative approach that they don't want to increase spending overall, may almost ironically be causing a backdoor defense cut that will be massive in scale. The other thing that you touched on, Federal Work Study and SEOG, people probably know... I don't remember when we last talked about this. Hopefully, we raised this before because it is deeply concerning. But the House Appropriations bill, we haven't seen the details, they've not publicly released it. But some information has come out and one of those is that they would fully eliminate both of those programs. This is the Federal Work Study program and the Supplemental Educational Opportunity Grant programs. Combined, that's over $2 billion of student aid, which you earn through working or is given to you as a grant.

This is not aid that has to be repaid. It's hugely important. I mean, you and I both were work-study students. It seems like everyone I talk to has an experience with work study. A lot of students, especially Pell recipients, benefit from Supplemental Educational Opportunity Grants. The fact that those two programs are proposed for elimination in their entirety is very concerning. And we have been lucky to hear from so many of our members that they've spoken out, they've reached out to their delegations, they've talked about the importance of those programs to their students.

We have a contact Congress form if people who are watching us now want to be involved, that allows them to do that. I'm sure we'll post a link to that in the chat. But it is important. We are really fighting to raise the profile of those programs and make Congress understand that cuts like they're proposing there have consequences that the public is noticing. So any support people can give, I strongly encourage you to do that. But we had some questions too from the audience, Sarah, on this?

Sarah Spreitzer: Yeah, we did. One of the questions was about any research policy-related provisions in the appropriations bills. And I would just say we're not seeing the types of research security provisions that we saw in previous years, I think attached to the appropriation bills. At least in the Senate, they have been very clear that they want to address those through the authorization bills such as the National Defense Authorization Act. So at this point, there's nothing I would flag as being problematic in the appropriations bills.

Now, there are obviously cuts to the science agencies in the House appropriation bills, which many of our colleagues are advocating against, similar to what you just cited, Jon, on Federal Work Study and SEOG. The Senate bills are a little better, they provide a little more funding. But again, we don't know how this is going to play out even absent the government shutdown. So we'll continue to advocate for funding for those programs and hopefully for a short government shutdown.

Jon Fansmith: And I saw someone else, and this is I think a really great question, asked, how would a pending government shutdown impact the timing of the release of the new 24-25 FAFSA? And I know certainly for financial aid officers and other people who follow federal policy around financial aid, this is a really big question mark right now, because the Department of Education is working to finalize the new FAFSA as mandated under the FAFSA Simplification Act. It's been taking them a couple of years to try and get this process implemented, get the systems stood up. We already know they're going to miss the October 1st... Not really a deadline, it's not a statutory deadline, but what they had been doing for the last several years. And we'll probably have it standing up in the middle of December. I say probably in part because we don't know how a shutdown will impact that.

When the federal government goes into a shutdown, every employee other than those who are designated as essential are not allowed to work. And the Department of Education has lots of people who will be working on FAFSA's implementation at the Office of Federal Student Aid who will not be essential. Generally, agencies are pretty careful about who they designate as essential. I think the last shutdown preparedness memo we had from ED said, what, 10% of employees would be designated as essential? So you're talking nine out of 10 of your staff won't be there.

This is a really complicated process. It takes a lot of not just the work on the front end of building out what the changes will look like, but you think about 44 million borrowers, you think about tens of millions of applicants, you think about the impact of filling that form out. There can be real impact of that if we go into an extended shutdown. Now, I think probably the agencies are hoping to plan and address that. I think they're as aware of the shutdown as we are. But it's certainly a level of uncertainty we don't need on something that's so important to campuses.

Sarah Spreitzer: Yeah. Jon, the last thing I'll say on the shutdown is usually a day or two before the funding runs out, at midnight on September 30th, the agencies will start making their guidance public. And so beyond what we have in our shutdown memo, we will be sharing that broadly, whether it's through our president's weekly newsletter, but that will be made available and so we may get more details then.

Jon Fansmith: And I want to highlight, I just noticed two comments in the chat from two just awesome colleagues. William Gill wrote in to say that he had been on a call with another association and the Department of Ed. And ED said that the shutdown will not impact the rollout of the FAFSA. They're planning for it and will deem employees as essential. So that's very good news. I mean, not sure I love being completely rebutted on our webinar here, but rather get good information out. So William, thank you for that.

And then Jarret Cummings makes the point that if for whatever reason they are not able to address it, there will be cybersecurity implications of that because this is the year federal tax info is being introduced into the system, and we already know how complicated that process can be. Ed's been struggling with that for a while too. So a lot to think about in this area. But that's not the only thing Congress is doing, or not doing as the case may be, Sarah. There's a few other things happening including a bill you've been spending a lot of time on.

Sarah Spreitzer: Yeah. So it's the time of year again for the National Defense Authorization Act, which is the authorizing bill that's done annually that authorizes every program at the U.S. Department of Defense. And so it's a big deal, especially to Department of Defense, and it generally has bipartisan support because obviously it supports the military. And I don't think there's ever been a time when it hasn't actually passed within a year, but the House and the Senate have passed their versions of the National Defense Authorization Act for fiscal year 2024. And in the past few years, what we've seen it as is it's become much more of a vehicle for legislation that's been unable to pass on its own or that may have some sort of defense-related aspects. So for example, on research security, we have had several amendments in previous years, and actually this year too, proposed on Section 117, foreign gift reporting, things that have kind of that national security side to it.

And so this year, the House and the Senate are coming in at very different places, not so much on the funding or the programs that they're supporting, but the House is using it as a vehicle to make statements regarding diversity, equity and inclusion, or DEI activities, at the Department of Defense and whether or not DOD actually needs to be involved in diversity activities, and putting some policy restrictions on how DOD funding can be used for those types of things.

For our institutions of higher education, there are also two provisions in the House bill that we are watching very closely. There is Section 214, which would create a new reporting requirement for DOD-funded researchers, and not just for who we think of as the researcher, the primary investigator or the PI, but that would also include graduate students working on a DOD R&D grant. And it would require those researchers to share personal information such as place of birth, date of birth, country of citizenship, that then DOD would be able to put up on a public website. So we think that this would be very discouraging for faculty that were interested in working on DOD funding.

Jon Fansmith: You could say that, yeah.

Sarah Spreitzer: Yeah, I think it would also lead to some issues with identity theft and personal information being stolen. And also it's unclear what the national security concern is here, how this is being addressed beyond that information that's included by a researcher when they apply for a DOD-funded grant. And so we are going to be sending up a letter to the Senate Armed Services and the House Armed Services, asking that that provision be struck in conference.

And then there's another provision in there, also in the House passed bill, which would create a new 25% cost share requirement. So anybody receiving Department of Defense research and development funds would be required to come up with an additional 25% out of institutional funds or non-federal funds for DOD-funded research, which is very problematic and also a little strange since last year, they actually created a new program to fund DOD research at institutions that have not historically done well in DOD research, such as HBCUs and MSIs. And so this seems to go against new programs that they actually just created last year. So the House and Senate have their versions of the bills, but it's unclear how this conference is actually going to work, Jon, because the House and Senate don't seem to be talking on many of these issues. And so I think they're waiting to see how it's going to settle out on appropriations before they can actually think about moving the NDAA. So we're going to wait and see on that.

Jon Fansmith: So really the theme of Congress for the fall is chaos, uncertainty, lack of communication. I mean, I'm noticing certain trends here.

Sarah Spreitzer: Well, I will say, though, I think everybody and their brother is here in DC this week talking about their priorities. So it is very important for people to weigh in with their congressional offices about these priorities because staff are still talking and they're going to have to do something.

Jon Fansmith: Yeah, that's a great point, Sarah. And I wanted to just touch on because without fail, every time we do one of these, someone asks a question about when will HEA be reauthorized. And I mean, this is going back, I don't know, probably all five seasons of dotEDU. And the answer, frankly, is always the same. Well, Jarrett chimed in to say, "Never." He might be correct. Who knows? Certainly no time soon. I will say, and we have talked a little bit about this at previous ops, we may have some action on HEA, at least. That's interesting. Virginia Foxx came into this Congress as Chair of the Education & Labor Committee. She has very much always wanted to manage and push forward a reauthorization of the Higher Education Act. She tried that with the PROSPER Act back the last time she was chair of the committee, and we fully expect that she will do that.

Again, you're beginning to hear rumors that October might be a time that would be unveiled, that it's maybe not as far off as people had been expecting. Obviously, no guarantees of that, this is rumor and innuendo. But it might be a very interesting time to start seeing some of the proposals that have come out. It's been a few years since we've seen a comprehensive HEA proposal. Seeing some ways where the discussion has shifted, what the proposals on the table are. So something to keep an eye out for.

Something else we're tracking though, Sarah, moving away from Congress, the courts, and particularly the status of DACA students.

Sarah Spreitzer: Yeah, and Jon, I wish that this would involve Congress, but we haven't seen any path forward on any immigration legislation this year. But what happened just last week is DACA had another court decision against the program. A district court ruled that it is unlawful based on how it was created, because remember, it was created through executive policy under the Obama administration. So the Biden administration had taken steps to protect and fortify the DACA program by going through a formal rulemaking process. And basically the district court ruled that wasn't enough to actually reach the threshold where it was lawful in its creation.

So now it is going back to the Fifth Circuit Court where they're likely to also agree that it was created in an unlawful way, and we are actually expecting it to be kicked up to the Supreme Court. Timing-wise, though, it's really unclear when this is going to happen. I know our general counsel, Pete McDonough, just this week was saying he doesn't think it will likely happen this term, perhaps next term in the Supreme Court. But obviously we're going to be following this very closely, and unfortunately, I don't think that it provides any more pressure on Congress to actually take action and address getting DACA into statute. And so that is unfortunate.

Jon Fansmith: Yeah, very disappointing. And particularly for the people in the program, just the continued uncertainty, and I can only imagine the frustration of that. So would be great to see Congress act, but as you point out, an election cycle is a tough time to do immigration legislation, even for a population that has strong bipartisan support.

Sarah Spreitzer: Yeah, and Jon, sorry, I should have added that it really is kind of existing in this weird stasis where people that are already in the DACA program can renew, but new applicants can't come into the DACA program. So what we're seeing is that the DACA population is starting to get smaller. We have more young people that would like to register for DACA, and unfortunately they are unable to do that. So just wanted to share that.

Jon Fansmith: Compounding the limbo status.

Sarah Spreitzer: Correct, correct.

Jon Fansmith: Well, moving on from the courts, and I was going to say on a happier note, but I'm not sure this is really a happier note.

Sarah Spreitzer: No, I don't think so.

Jon Fansmith: No. Particularly for those of us who are resuming repayments. Student loans, our repayment is resuming as of October 1st. Interest has been accruing since September 1st. I think we've known these dates for a while. A couple things that are interesting, the Department of Education actually released some data. And technically it wasn't the department, it was the Treasury released this data, and it was payments from the different agencies into the Treasury's general fund, which just to unpack for a second, is the Treasury being the bank of the government sort of, they take in deposits. Those deposits are routed to them through different agencies, and different agencies have different programs that generate revenue. Obviously, you think of the IRS as the biggest revenue generating one, but the Department of Education collects loans. When those loans are repaid, they deposit that into the Treasury.

They reported a billion dollars early in October in one day as deposit, the Department of Treasury. They're reporting big numbers throughout this cycle. It looks like people have already started repaying relatively large amounts even before the October 1st deadline. I think the other concern we had going into this period, and I'll talk about these two in a second, how they're combined, was that we'd start to see issues with borrowers not able to access information, not be able to transfer their plans. So far, aside from maybe a small handful of examples, and we haven't started full repayment yet, we have not seen that. So a lot of concern coming into the fall about what this would look like, all the uncertainty around loan repayment, and the department's ability to implement this with other changes underway, what we're seeing is large amounts of revenue are being paid. People are repaying their loans already at a pretty high volume, and that we are not seeing reports of issues with doing that. So knocking wood here, still a couple of weeks until the formal deadline to start, but it looks like it's going relatively smoothly.

What's not going relatively smoothly is loan forgiveness, something we spent a lot of time talking about. As everybody knows, the Supreme Court back in June overturned the administration's proposed loan forgiveness program of 10,000 or $20,000 for everyone under $125,000 in income. The department is moving forward with a rulemaking process where they're going to take another bite at the apple and try to implement a regulatorily-based procedure to do loan forgiveness. They have asked for nominees to join the negotiated rulemaking session, and they're in the process of identifying and selecting who the people will be who will serve on that committee.

Not abundantly clear what the timeframe is for convening those groups, how long that process will take, how speedily it will move. To a very real extent, given the Supreme Court's ruling that they didn't have statutory authority under the HEROES Act, which is probably legally the strongest case for loan forgiveness they had, it seems unlikely that whatever will come from this would survive an additional legal challenge, which it will certainly face. But they're moving forward. They're committed to this. They're clearly committed to showing the supporters of loan forgiveness that they're going to try every avenue to get there that they can, regardless of what you might think about the likelihood of success. So a lot happening in that area. A lot happening on the regulatory side too, Sarah.

Sarah Spreitzer: Yeah, so we also have another one that has been a priority for a long time, I think, for the Biden administration. We've seen the Department of Labor overtime exemption rule, Jon, which has to do with whether or not you are overtime exempt or non-exempt. And I think that you've been following this a little more closely, not as closely as our colleague Steven Bloom, who's heading up our efforts on this, but do you want to give an update on that?

Jon Fansmith: Yeah, and I will stumble my way through and hopefully Steven won't be wincing as I do, but he has briefed me a bunch of times, and sadly I only retain so much of it. But the Department of Labor does this on a periodic basis, they have for decades, where essentially, and summarizing this as simply as I can, they set a threshold, and there's other aspects to this, but there is a salary threshold below which you are eligible for overtime, above which you would not be. And there's other things, professional status and other things that go into that test. It is currently at about, and I may get the number slightly wrong, maybe somebody in the chat can correct me, but about $32,000 and it is proposed to go up to about $55,000. The other aspect of this is that the proposed rules that have come out from Labor would also add in a three-year automatic inflation-based adjustment, so the rate would keep going up every three years.

Historically, this has been done every seven to nine years. There was a proposal under the Obama administration that the Trump administration sort of watered down, and then there was expectations when the Biden administration took office that we would see this rule relatively soon. It took a couple years for them to get to that point. The bigger thing is, and I don't probably need to tell this audience this, but the impact of setting that threshold $23,000 higher than it currently is, is going to have an enormous impact on institutions, how we approach our staffing, what roles we assign to people. When you add the overtime calculations at that much higher salary threshold, a lot of positions simply become more expensive. So you have to think about what are the career paths for your employees, how many employees you can afford to retain doing certain roles.

It will be massively impactful. And I think one of those things, one of these issues we see from time to time where higher education is not the focus of the policy. This does not apply solely to colleges and universities, this is nationwide. This impacts every employer. So it will have a massive impact nationally, but certainly given how a lot of staffing has happened. And just like I said, somebody correct me on the numbers, currently the threshold is $35,600. It would go up to approximately $55,100. So they're the accurate numbers. Thank you again, Jarret. Really, Jarret chiming in. It will have-

Sarah Spreitzer: And Jon, I think the $55,000 might actually just be the proposed. It could actually go up higher. And at issue is anyone that you're not paying at that threshold, then you would have to figure out how to pay them overtime. Our friends at CUPA-HR have been working a lot on this to think about the impact on our institutions. Because as you said, we're not the only ones that are going to be impacted, but for institutions of higher education, I think there's going to be some unintended impacts on our institutions.

Jon Fansmith: And we are working with CUPA-HR and our colleagues at other associations to file formal comments. We have done this in the previous efforts, really trying to explain the impact specifically on higher education and how that our institutions are uniquely affected as employers given the differences we have from other sectors of the economy. But we'll keep you all updated on that, and you can certainly track on our website what we're doing.

Other set of regulations that we're working on, the Department of Justice has a notice of proposed rulemaking out. They submitted proposed rulemaking revisions to Title II of the Americans with Disabilities Act. This concerns basically the accessibility of online tools for public accommodation. So public governments, one of the things you think about is DMVs or state governments, but also public institutions.

The last time the Department of Justice took this up was in 2016. ACE in partnership with a bunch of colleague associations put together pretty significant comments, talking about what that impact would look like, some of the things that made the higher education space unique in terms of meeting different standards for accessibility, and really just trying to inform the conversation. Again, one of those things not really targeted at higher education, but where there will be a massive impact on how we operate. So comments on that are due October 3rd. We have recently, as of Friday, asked for an extension of the deadline to file comments.

As I mentioned, this is very complicated. There's a lot of technical issues with this, and we're also trying to get more information from the field about how this would impact individual institutions so we have some data to share with the Department of Justice on this. We are looking for more time to do that. We will be prepared to meet the October 3rd deadline if we don't get an extension, but we really would like to make it as fulsome and comprehensive an answer as possible. But that is moving forward. And again, check the website, check your communications from ACE. We'll keep you updated on that process.

Sarah Spreitzer: Jon, I noticed you didn't call this Regulation Roundup.

Jon Fansmith: I know. Our producers, are they sending angry notes to us through the chat that we didn't use the term?

Sarah Spreitzer: No.

Jon Fansmith: Missed opportunity.

Sarah Spreitzer: But there is a lot going on on the regulatory front, and I think in thinking about Congress and everything going on there, we sometimes forget that the agencies are still going about their work, and there's a lot of things that higher ed's working to comment on. But one thing that you didn't talk about, Jon, that we did get a question on was the issue of the big NPRM package that's going through the Department of Ed that has gainful employment in it, and we're waiting to see that move forward. We did get a question on state authorization and where that issue is. So do you want to say anything about the Department of Ed's rulemaking?

Jon Fansmith: Yeah, and that's a really timely question, actually, because my colleague Emmanuel, who has been on dotEDU Live before, just let us know earlier today that he had checked out. So little background, context: gainful employment, which people are probably familiar with, this is a proposed rule that essentially sets standards for what are known as gainful employment programs. These are really any program at proprietary institutions and then non-degree programs at public and private nonprofit institutions. Basically trying to set up a debt-to-earnings ratio below which those programs would not be eligible for federal financial aid. It was raised by the Obama administration, challenged in court. A court-approved version was promulgated at the very end of the Obama administration. The Trump administration essentially ended that policy, and the Biden administration has come in and wants to restore it. The question particularly about state authorization in that, there was other policy, regulatory proposals that were bundled together along with gainful employment.

The gainful employment rule itself has gone to the Office of Management and Budget. I know a lot of people know this, but just in case, that is relevant because that is the last stage before the rule is finalized. The agencies will look at a rule, they'll get the proposed rule, they'll put it out for comments, they'll review the comments, and then they send it to OMB for a final sort of policy check. Make sure that what they're proposing aligns with the administration's goals, make sure it's meeting statutory requirements, essentially making sure that the rule is compliant. Once they have done that, that returns to the agency and is finalized.

The question about state authorization, Emmanuel checked in on this, it is only gainful that is with OMB right now. The rest of that package, the other elements, have not been submitted. There is an expectation they will be submitted as part of a larger package a little bit later. Exact timeframe, I think, is to be determined. Bob Moran, another amazing colleague -- we have lots of great friends joining in today, so happy to see all these people, or I guess, see all these people -- but saying is the rumor's they're finished at the White House so we might be seeing that gainful employment rule really any day now if that's the case. So keep an eye out for that. We certainly will be doing that too.

Sarah Spreitzer: Great. And Jon, we have about five minutes left and we had some really good questions that I think were submitted. And there's one on international students, so I may take that one really quick before-

Jon Fansmith: You definitely should.

Sarah Spreitzer: ... to talk about. One of the questions was what's going on with international student enrollment, outreach, recruitment, immigration, OPT, anything happening there? And again, I would say immigration legislation does not seem to be moving. But in kind of a preview of November, we are waiting to see what IIE and the State Department are going to tell us about international student enrollment last year and for this academic year that we are in now, and hoping to see our enrollments continuing to bounce back post-COVID. I think the Open Doors Report last year demonstrated that the US remained a destination of choice for international enrollment. I think that the Biden administration through joint work with the Department of Education and the Department of State and the Department of Homeland Security, have done a lot to try to send this more welcoming message to our international students.

And in fact, the Department of Homeland Security recently announced the new Homeland Security Academic Partnership Council. They just had their first meeting last week. They talked about needing to send this more welcoming message to our international students. So without legislation, there's not much we can do to get dual intent passed, to get any kind of changes to our student visas. But I think that the Biden administration is really trying to make the visa process a bit easier and really trying to be encouraging about students that are seeking to study in the United States. But I'm excited to see the Open Doors Report. I think it'll demonstrate that the US is continuing to make gains on international enrollment post-COVID.

Jon Fansmith: Yeah, that's great, Sarah. And I know we have a couple minutes left. Maybe we'll do one more question then I just wanted to wrap with a little mini announcement from ACE too. But is there a question in particular you're thinking about or you've seen you want to address?

Sarah Spreitzer: Well, Jon, this may lead to whatever you're going to share at the end, but one of the questions we got was what's happening with the "anti-woke agenda" -- I'm doing that in air quotes -- that we're seeing in the states and how that's playing out with presidential candidates? What is the federal government doing in regards to some of these state efforts, and is there anything ACE can do to help?

Jon Fansmith: Yeah, I mean, that's a timely question, too. I think we certainly have noticed and our members have certainly noticed that this is, I tend to think of it as a national trend that's taking place at the state level. So even though we think about it as state policy, we're seeing the same policies being proposed, in some cases enacted, in state, after state, after state. A lot of times the proposals are pretty much identical across states. So there is clearly an effort. And we've seen the research, there's a growing politicization of higher education. Some of that has a partisan edge to it. And so there's a lot of concern about what that's doing. In terms of what the federal government's doing, there's not a lot the federal government can do. The federal government has very limited authority to intervene into states' policies when states pass laws.

We have the 10th Amendment for a reason. Unless they are clear violations of core rights, federal government doesn't have much of a say in what the states choose to do. I think the bigger concern is less can we get help from the federal government in addressing some of these challenges, and more how do we as higher education respond, and how do we articulate the problems that these policies create, the challenges they impose, the misunderstandings that drive them? And I said it was a timely question because this was what I was hoping to announce at the end. People may have seen this, but it was over the break.

But ACE has launched an office of national engagement here within our government relations division. And we're very, very lucky. Within the last two weeks, we are joined by the head of that unit, a woman named Heidi Tseu, who joins us from Georgetown University. Incredibly talented, incredibly impressive, big task ahead of her. But she's going to look at all of these national efforts, how they're occurring, and then start looking at ways that we can counter some of these false narratives, some of these harmful narratives. Can start equipping people with the ability to challenge those ideas and put forth better ideas and explain why we do the things we do and why that's important. Not just to institutions or not just the students, but to the communities they're located in, to the regions they serve, to our national needs, whether that's economic or national security or scientific, across the spectrum of what our institutions do. So we will be pushing very hard on that. There will be more and more information coming out, new initiatives announced through that office.

We are very excited. You can probably tell by the way I talk about this, I'm very excited about this and really encouraged by the reception we've already gotten in this area. Lots of people reaching out, wanting to see how they can partner with us, how they can engage, offering ideas, thoughts. It's great. And I encourage those of you who are thinking about this, please do reach out. We'd love to work with you. This is an area where we're starting a little bit behind the curve and we've got a lot of ground to make up, but we're going to push very hard to get there. So a lot to be excited about.

Sarah Spreitzer: Yeah, and Heidi's a great colleague. So I think when institutions and other associations start reaching out to her, she's just great to work with.

Jon Fansmith: Yeah, absolutely. And that brings us right to time. We actually did this pretty professionally, Sarah. Good job.

Sarah Spreitzer: I mean, I'm impressed with our professionalism. Very professional. Going into the fifth season, I mean, could we get-

Jon Fansmith: Start on a high note. Yeah.

Sarah Spreitzer: Yeah.

Jon Fansmith: Well, and also, obviously, Sarah, thank you so much for joining me on this. But really, again, I want to thank everybody who tuned in to watch. We got way more questions than we could ever address. Lots of helpful information. Great to hear from so many people we see in our real lives, and certainly some folks that maybe we don't get to see in person all that often. So wonderful to connect with you all. Thank you so much for joining us, and we will see you next month.

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\podcast. While there, please take a short survey to let us know how we're doing. You can also email us at 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 Trueheart, 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.

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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