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ACE president’s weekly email newsletter to higher education leaders

CURRENT EDITION July 23-27, 2018 ~ Vol. 19, No. 24

Most of official Washington will slow down or stop entirely next week, as the House leaves for its five-week recess. The Senate will continue to work through some of August, but it’s unknown for how long or how much, if anything, it will accomplish. Today’s email will be my last until after Labor Day, unless events warrant further communications.

Of note: Summary motions have been filed in the case against Harvard University’s admissions policy, and we have prepared a brief in support of the university. Also this week, House Democrats introduced their Higher Education Act reauthorization bill, and Congress completed work on legislation to renew the Carl D. Perkins Vocational and Technical Education Act. Details on these developments and more below. ​

  •  ACE, Higher Education Groups to Submit Brief in Support of Harvard in Admissions Case

    ​Along with approximately 35 other higher education groups, we will be submitting an amicus brief Monday supporting the “Harvard model” of holistic admissions review and, in particular, the use of race as one factor in reviewing applicants to achieve the goal of a talented, diverse incoming class.

    A trial in the case Students for Fair Admissions, Inc. v. Harvard is slated to begin in mid-October in federal district court in Boston. Before then, Judge Allison Burroughs will decide motions for summary judgment submitted by both the plaintiff and Harvard. While unlikely, these pre-trial motions potentially could dispose of all the issues in the case without the necessity of a trial.

    Background: In November 2014, Students for Fair Admissions, an organization created by anti-race-conscious admissions activist Edward Blum, sued Harvard, alleging that the university discriminates against Asian-Americans and seeking to prevent Harvard and other colleges and universities from using race as part of their holistic review of applicants.

    You may remember Blum as the person who recruited Abigail Fisher to sue the University of Texas at Austin and supported her challenge to its admissions policies, culminating in two trips to the U.S. Supreme Court (Fisher I and Fisher II). When the Supreme Court ruled in Fisher II in 2016, it marked the fourth time in four decades that the high court reaffirmed that the educational benefit of a diverse student body is a compelling government interest that can justify the narrowly tailored consideration of race.

    Our amicus brief: Our submission does not parse the particulars of the Harvard case; rather, it speaks to issues of diversity and admissions in higher education overall, along with the institutional benefits that come with the freedom to craft a holistic, individualized review of applicants. This is an argument we, along with many of you, have made time and time again.

    It is our strong belief that Blum is using this lawsuit to again try to achieve the sweeping relief sought—and denied—in Texas: the end of the consideration of race in college admissions and the restriction of a university’s ability to assemble a diverse student body. Here, he attacks the “Harvard model” that Justice Lewis F. Powell Jr. specifically cited in the 1978 landmark case Regents of the University of California v. Bakke as an exemplar of race-conscious admissions.

    No doubt, the retirement of Justice Anthony M. Kennedy is seen as an opportunity to torpedo the basic framework for holistic review of applications for admission and upend an approach that has been widely adopted throughout higher education. This case could easily go on for years. We will be attentive throughout this case to ensure the safeguards to these admissions policies provided by the Supreme Court remain in place.

  •  House Democrats Introduce HEA Reauthorization Bill

    ​House Democrats this week introduced their plan to reauthorize the Higher Education Act (HEA), the sweeping law governing federal financial aid and other programs that support higher education in the United States.

    House Minority Leader Nancy Pelosi (D-CA) joined Rep. Bobby Scott (D-VA) and other Democrats in the rollout of the plan, dubbed the Aim Higher Act. The bill, which is almost certain to go nowhere in the Republican-controlled House of Representatives, comes as Republican HEA reauthorization legislation, the Promoting Real Opportunity, Success, and Prosperity Through Education Reform (PROSPER) Act (H.R. 4508), has stalled.

    The Aim Higher Act would be significantly more generous than current programs for students and borrowers, increasing funding levels for Pell Grants, TRIO, and GEAR UP and making loans more affordable. The bill would also revive the Perkins Loan Program, which expired last year, and restructure the Federal Work-Study and Supplemental Educational Opportunity Grant programs. However, the bill would also add significant new requirements for institutions, increasing reporting and regulatory burden.

    Full text of the bill will be made available soon, though information about the bill can be found here. For more information about the reauthorization process, see our HEA resource page.

  •  Congress Sends Perkins Career and Technical Education Bill to President

    ​The Senate late Monday passed a bill (H.R. 2353) to reauthorize the Carl D. Perkins Act, which sets rules for more than $1 billion in grants to states for career and technical education (CTE) at the secondary and postsecondary levels. The House passed its own version of the measure last year and voted Wednesday to approve the Senate’s changes, sending it to President Trump. The reauthorization of Perkins was six years overdue. (Similarly, HEA reauthorization already is five years overdue.)

    Most notably, the bill would eliminate a negotiation process between states drafting goals for their CTE programs and the Department of Education, which approves those plans. Under the new law, states would set their goals and the secretary would approve them as long as they meet the law's requirements. The bill would also require states to make "meaningful progress" toward the approved goals.

  •  Education Department Releases Proposed Borrower Defense Rule

    ​The Department of Education (ED) Wednesday released its long-awaited Notice of Proposed Rulemaking (NPRM) on borrower defense to repayment.

    The proposed rule, in general, rolls back the expansion of the program initiated by the Obama administration and more closely resembles the rule that first went into effect in 1995. In short, borrowers seeking debt relief due to misbehavior or outright fraud by their institutions will face considerably higher hurdles to get that relief. Further, the NPRM would impose financial penalties on those institutions whose former students successfully discharged their loan obligations.

    The proposal also includes changes sought by private institutions to update the way the department assesses the financial stability of institutions, though an additional rulemaking to further refine this process will be needed. The public will have 30 days—once the document is published officially in the Federal Register—to offer comments on the proposal.

  •  IN BRIEF: National Defense Authorization Act
    The FY 2019 National Defense Authorization Act was moving toward final passage Thursday after a House-Senate Conference Committee reached consensus on the bill. The final measure includes a few provisions that will impact universities that host Confucius Institutes (CI) and directs the Department of Defense (DOD) to convene a new forum for research universities and federal agencies to discuss national and economic security issues. One provision (Sec. 1091) would require colleges and universities to receive a waiver from DOD if an institution operates a DOD-funded language instruction program and has a CI. As a condition of the waiver, the institution would need to provide all contracts and memorandums of understanding related to the CI to the department. The provision that requires DOD to establish an initiative to discuss timely security issues with universities that conduct defense-related research is especially important given the recent dissolution of the National Security Higher Education Advisory Board​.​
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