Think Congress for Higher Ed and IT Policy in 2017

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(12/12/16 – Jarret Cummings) Post Summary:

  • The Trump campaign did not address higher education or IT policy in great detail, and the transition has yet to yield significant indicators of potential Trump Administration priorities.
  • The 2016 election ensured continued Republican control of Congress, which provides clues about 2017 policy developments pending more information about presidential priorities.
    • On higher education, House and Senate leaders have indicated interest in deregulation, accreditation reform to spur innovation, institutional risk-sharing on student loans, improved data for student/family decision-making, and modernizing FERPA (e.g., by adding data security/breach notification provisions).
    • IT policy is murkier. Republicans agree on revising or eliminating the FCC’s Open Internet Order on net neutrality. They have yet to reach consensus internally and with Democrats on cybersecurity, data privacy, and breach notification, which could lead to further delay.
  • Presidential and congressional priorities in other areas (e.g., immigration, trade, tax reform, administration and judicial nominations) may push higher education and IT legislation to 2018.
  • EDUCAUSE will continue to work with other higher education groups to maximize institutional flexibility and minimize burdens in relation to federal policies.

Trump Higher Ed and IT Policy Still Taking Shape

Given the overwhelming media coverage that presidential elections generate, it is natural for much of the current post-election conversation to focus on what a Trump Administration is likely to do in any given area. Higher education and IT are no exceptions. For EDUCAUSE members, however, the effects of the 2016 election on Congress are likely to be more telling.

In part, this stems from the fact that Trump didn’t discuss higher education or IT policy in great detail during the campaign, and policy proposals have yet to emerge from the transition process. Trump’s positions on higher education to this point have largely concerned student loans and institutional responsibility for affordability. His positions in other areas, like immigration, have higher education implications, though, which ACE’s Jon Fansmith discusses well in his Higher Education Today post, “What Can Higher Education Expect From the Trump Administration?

Trump’s pick for Secretary of Education, Betsy DeVos, also fails to shed light on the higher education direction a Trump Administration might take. As many outlets have reported, including Inside Higher Ed and The Chronicle of Higher Education, DeVos’s policy interests have focused almost exclusively on K-12 issues, such as school vouchers and charter schools. Given her lack of a track record on higher education, which is not unusual for a Secretary of Education, colleges and universities may have to wait for the appointment of the Undersecretary of Education, the department’s primary higher education leadership position, for indications of the administration’s higher education priorities.

When it comes to technology, Trump has commented on the field largely as it relates to other areas. For example, he has framed cybersecurity in the context of potential unfair trade practices by other countries, and he has discussed IT workforce issues in light of concerns about the use of H1-B visas for highly skilled tech workers (see Network World and International Business Times). In touching on those issues, the BBC also addresses Trump’s likely support for a rollback of at least some aspects of the FCC’s Open Internet Order, which could impact or eliminate the net neutrality rules currently in place. As the article notes, however, Trump’s public statements on the issue are limited, leading to speculation about what his appointment of major net neutrality opponents to his transition team will ultimately mean.

Past Is Prologue: Continued Republican Leadership of Congress

We may not yet have clear markers for what the incoming administration will try to achieve on higher education and technology. By sustaining Republican control of Congress, though, the 2016 election presents us with some solid indicators of how the legislative branch is likely to approach these areas. And with Higher Education Act (HEA) reauthorization on deck for next year, the clues on higher education policy that we can glean from the current Congress are particularly important.

Higher Education Policy Issues

Nowhere is the continuity of control more impactful than in the U.S. Senate. Lamar Alexander (R-TN) will stay as chairman of the Senate Health, Education, Labor, and Pensions (HELP) Committee, which has jurisdiction over the HEA. Equally important, Patty Murray (D-WA) will continue as the committee’s ranking Democrat. The partnership between Alexander and Murray, a throwback to the Senate’s history of bipartisan collaboration, led to the unexpected reauthorization of the Elementary and Secondary Education Act (ESEA) as the “Every Student Succeeds Act” (ESSA) at the end of 2015. Given their accomplishment in resolving concerns stemming from the “No Child Left Behind” ESEA era, there are hopes that they can achieve similar success with HEA, which was last reauthorized in 2008. Since any bill will have to be able to withstand a Democratic filibuster in the Senate, much of what happens with HEA in the next Congress will depend on Murray and Alexander reaching a bipartisan agreement.

One should not discount, however, the role of the House Education and the Workforce Committee and its next chair, Virginia Foxx (R-NC), in the HEA reauthorization process. Foxx is set to succeed [] the retiring John Kline (R-MN) as chair of the full committee, having served in the current Congress as the chair of its higher education subcommittee. So, while Ed. & Workforce will see a change in leadership, Foxx represents relative consistency in its higher education policy leadership, and she is known for her strong views on limiting federal regulation of education wherever possible. Also, while bipartisanship is a less pressing issue in the majority-dominated House of Representatives, Bobby Scott (D-VA) will remain the committee's ranking Democrat, maintaining continuity in that respect as well.

The relative consistency in congressional higher education policy leadership heading into 2017 allows us to look at the committees’ more recent policy proposals for guidance on the directions they may take next year. Alexander in particular has been very active on this front. As both a former university president and Secretary of Education, Alexander has long raised concerns about the regulatory burden colleges and universities face and its impact on higher education costs. That led him to serve as the driving force behind a task force of higher education leaders charged with identifying ways to reduce federal regulation of colleges and universities. It is widely expected that the task force report will serve as a key input into the Senate HEA reauthorization process. Likewise, the HELP Committee under his leadership released three white papers seeking input on major policy areas for reauthorization – reforming accreditation, particularly in relation to non-traditional education providers; increasing institutional risk-sharing (i.e., “skin in the game”) in relation to student debt; and improving the provision of higher education information to students and families to facilitate better decision-making. These papers serve as significant indicators of Alexander’s, and therefore the HELP Committee’s, HEA priorities.

A former community college president herself, Rep. Foxx has similarly targeted improving the flow of higher education information to students and families as a priority, having sponsored the Strengthening Transparency in Higher Education Act [] in the current Congress. The House Education and the Workforce Committee she is now set to lead has also sought to support higher education innovation; it passed a competency-based education demonstration projects bill [] on a bipartisan basis as a specific marker for HEA reauthorization. As a point of emphasis distinct from the Senate HELP agenda, however, the committee proposed to undertake an overhaul of the Family Educational Rights and Privacy Act (FERPA), introducing the Student Privacy Protection Act with the chair and ranking member of both the full committee and its K-12 subcommittee as sponsors. While the bill originated on the elementary and secondary side, colleges and universities fall under FERPA, too; of particular interest for EDUCAUSE members, the proposed bill introduced federal cybersecurity and breach notification requirements for student educational records for the first time. While the proposed overhaul didn’t advance beyond the committee in this Congress, it is very likely to be reintroduced in some fashion as part of the Ed. & Workforce agenda for 2017.

IT Policy Issues

Turning to technology, congressional Republicans have consistently opposed the FCC’s Open Internet Order. While the FCC worked to finalize the Order in 2015, media reports at the time noted House and Senate Republicans were taking a comprehensive approach to trying to stop it. Much of the concern among congressional opponents, however, seemed to rest less with key net neutrality principles like no blocking and throttling, and more with reclassification of Internet access service as a “telecommunications service” under Title II of the Communications Act, exposing commercial ISPs to potential utility-style regulation. Even as the likelihood of reclassification started to increase, the chairman of the Senate Commerce Committee, John Thune (R-SD), indicated his intent to lay the groundwork for a full update of the Communications Act, consistent with the prior efforts of his counterparts on the House Energy and Commerce Committee. And a stated goal of any such update would be to eliminate the possibility of utility-style regulation of Internet access service.

With one of the major House players in those discussions, Greg Walden (R-OR), ascending to the chairmanship of Energy and Commerce next year, Thune maintaining his chairmanship of the Senate Commerce Committee, and the ranking Democrats on both committees expressing [] a willingness to revisit the Communications Act on a bipartisan basis, it looks increasingly possible that Congress will decide the long-term future of net neutrality. The meaning and application of another key net neutrality principle — no paid prioritization — is likely to be a major barrier to achieving bipartisan agreement, however. Democrats generally oppose steps that might allow major broadband providers to give preferential treatment to an online content provider. Republicans, on the other hand, tend to see concepts like “zero-rating,” which mobile broadband providers in particular use to allow content-streaming from certain sources without it counting against a user’s data plan, as market innovations that shouldn’t be considered “paid prioritization.”

On cybersecurity and breach notification, the current Congress saw a variety of bills, but it found little consensus on what to do with them. Much of the energy on the issue stemmed from the House of Representatives, where the Data Security and Breach Notification Act, sponsored by Reps. Marsha Blackburn (R-TN) and Peter Welch (D-VT), initially seemed to have momentum. The bill ultimately stalled, though, due to Democratic concerns about federal preemption of existing, potentially stronger state breach notification laws, which eventually led Rep. Welch to vote against his own bill. Blackburn’s appointment to the Trump transition team could potentially position her to reintroduce the bill next year with Trump Administration support, breathing new life into its chances.

Conflicts among corporate stakeholder groups, however, may continue to complicate Republican efforts to unite around a single approach. When the Blackburn bill did not move forward, the House Financial Services Committee decided to advance a bill that would set security and notification provisions developed for the financial services industry as the new federal standard. The retail industry pushed back, though, arguing that requirements intended for banks would be unnecessarily burdensome for retail operations. This led to the de facto tabling of the Financial Services bill, leaving national data security and breach notification standards for the next Congress to address. With Trump’s primary cybersecurity proposal focused on a military-led review of critical infrastructure cybersecurity protection, it seems likely Congress will have to continue trying to resolve these partisan and stakeholder divides on its own.

Finally, while IT accessibility is primarily a regulatory issue at this point, with the U.S. Department of Justice having recently sought to renew its process for developing Americans with Disabilities Act (ADA) web accessibility regulations, higher education, disabilities, publishing, and technology groups have hopes for the Accessible Instructional Materials in Higher Education (AIM-HE) Act in the next Congress. Introduced in the House this fall, the AIM-HE Act reflects the shared proposals of the National Federation of the Blind, the Association of American Publishers, the Software and Information Industry Association, the American Council on Education, EDUCAUSE, and other higher education groups. It calls for the creation of an independent, stakeholder-based commission to develop voluntary accessibility guidelines for postsecondary instructional materials and related technologies. In addition, the commission would leverage its research in developing the guidelines to populate a reference list of IT accessibility standards, annotated to highlight their potential higher education applications. Both resources would be available to colleges, universities, content providers, and technology providers to use in better understanding and supporting accessibility in teaching and learning, as well as in higher education operations generally. EDUCAUSE and its partners are confident AIM-HE will be reintroduced in Congress early next year, setting the stage for its consideration in conjunction with HEA reauthorization.

Progress in 2017, Bills in 2018?

Of course, Trump Administration priorities in immigration, trade, infrastructure, tax reform, and so forth, combined with a backlog of congressional Republican initiatives and the need for the Senate to confirm new administration appointees, promise to consume much of the 2017 legislative calendar. That could ultimately push higher education and IT legislation into 2018, where the mid-term elections could lead to further delays. It remains to be seen whether bipartisan solutions can be found that will allow for faster passage of key higher education and IT bills.

Regardless, EDUCAUSE will continue to work with the larger higher education community to represent member interests. A key objective we share with our peer associations in this respect is to maximize the flexibility our members have to help their institutions fulfill their unique missions. At the same time, the associations work together to minimize the compliance burdens imposed by federal policies, which can create inefficiencies and other operational problems if not properly structured. As with any national election, the 2016 election created a unique set of challenges for higher education and IT policymaking, but the ongoing collaboration of the higher education community will enable it, and EDUCAUSE, to meet those challenges.

Jarret Cummings is director of policy and government relations at EDUCAUSE.