This post provides a brief overview of several general higher education policy issues affecting EDUCAUSE member institutions, if not higher education IT directly, including Section 117 of the Higher Education Act, the legal challenge to the attempted repeal of the Deferred Action for Childhood Arrivals program, and the US Department of Education's proposed free speech regulations.
While the EDUCAUSE Policy Team normally focuses on federal issues directly impacting the role of IT in higher education, in this blog post, we wanted to give members a sense for a few of the general policy matters affecting the higher education community as a whole.
Section 117 Foreign Gift Reporting
As detailed in an excellent summary from the American Council on Education (ACE), the US Department of Education (ED) took a renewed interest last year in Section 117 of the Higher Education Act (HEA), which imposes specific reporting requirements on colleges and universities regarding contracts and gifts of $250,000 or greater from foreign sources.1 Originally added to the HEA in the mid-1980s, Section 117 had been a little-known provision that sparked minimal compliance interest or effort from ED. For example, while the Department did incorporate foreign gift reporting into its online application for institutional participation in Federal Student Aid programs, it never developed implementing regulations to clarify the reporting requirements. This left significant aspects of what should be submitted to institutional discretion, leading to a wide range of reporting compliance.
The growing concern in Congress and the Trump Administration about foreign efforts to compromise research security and illegally acquire intellectual property put a bright new spotlight on Section 117, however, as ED began to face questions about the limited attention paid to foreign gift reporting over the preceding decades. This led ED to ask the federal Office of Management and Budget (OMB) to approve an emergency request to revamp its "information collection" requirements for Section 117. Unfortunately, as explained in a higher education association letter led by ACE, the Department failed to establish the basis for an "emergency" change, and its proposal went well beyond simply revamping the reporting process.2 In essence, it would greatly expand the extent of reporting and related documentation that institutions would be required to submit, and it would do so without a legal foundation for that expansion. (For more details, see further comments and legal analysis from ACE.)
OMB ultimately declined ED's request for emergency approval,3 and ED subsequently resubmitted its proposal as a regular "information collection" change request, although at least one aspect of its proposal will have to go through negotiated rule-making—the potential mandate that institutions submit "true copies" of all relevant contracts and gift agreements, regardless of the confidentiality provisions involved. ED's revised request also reflects some changes it previously accepted as a result of higher education community comments, such as dropping a question about whether a particular gift or contract had unduly influenced an institution's curriculum. However, it still contains problematic provisions that include a mandate that institutions disclose the names and contact information of anonymous donors, which would likely have a chilling effect on major gifts. Thus, higher education associations as a group will likely continue to seek revisions in both the information collection request and the now-pending rule-making on contract/agreement submission, with the understanding that ED will probably try to have at least the new set of information collection guidelines in place by the next reporting deadline this summer.
Deferred Action for Childhood Arrivals
Established by executive order in the Obama Administration, the Deferred Action for Childhood Arrivals (DACA) program grants temporary legal status to undocumented immigrants who came to the United States as children. This allows them to legally work and/or go to college in the United States while also shielding them from potential deportation. However, in 2017, the Trump Administration sought to discontinue the program, which would lead hundreds of thousands of DACA recipients to lose their legal status and its protections. In addition, the information they provided in registering for the program might then conceivably be used by federal immigration authorities to locate and deport them, even though many DACA recipients came to the United States at such young ages that they have no memory of living anywhere but the United States.
The Trump Administration's DACA repeal was immediately challenged in federal court, leading to multiple decisions at the district, appeals, and Supreme Court levels that have had the effect of keeping the program in place for DACA recipients who registered before the attempted repeal while the legality of the Trump Administration action remains under review. The process of actually assessing the legality of the Trump repeal finally reached the Supreme Court last fall. (Previously, the Supreme Court had only ruled on the appropriateness of the lower court injunctions blocking the repeal as well as administration efforts to skip lower court review of its efforts.) EDUCAUSE joined with more than 40 other higher education associations to support an amicus brief urging the Supreme Court to uphold lower court rulings and keep DACA in place. The brief cited the legal problems posed by the Trump Administration's failure to follow appropriate administrative processes in issuing its repeal as well as the significant negative effects the repeal would have on DACA recipients, who entered the program in good faith, and the higher education institutions that serve them.4
The Supreme Court has since heard oral arguments in the case, with media reports (for example, see the Washington Post, New York Times, and USA Today) generally indicating that the court's conservative majority seemed inclined to side with the Trump Administration.5 The court has yet to rule, though, making DACA a prominent item for resolution on the court's spring agenda. Even if the Supreme Court allows the repeal of DACA to proceed, what will happen to DACA recipients and when will remain open questions, which the higher education community will most likely seek to resolve by renewing its previously expressed support for the DREAM Act, a law that would provide DACA recipients and similar undocumented immigrants with the opportunity to gain permanent citizenship.
US Department of Education Free Speech Regulations
While the Trump Administration seeks to overturn the Obama-era executive order on DACA, it continues to release executive orders of its own to advance Trump Administration objectives. As a case in point, last spring the White House released an executive order tying college and university access to federal research and education grants to what the administration sees as more rigorous adherence on college campuses to free speech rights. This emphasis from the Trump Administration stems from the perception among the administration's supporters that higher education institutions either actively or passively block politically conservative speakers and students from freely expressing their views on college campuses.
Seeking to be the first out of the gate among higher education funding agencies with implementing regulations, ED released its proposed rules for institutions in relation to the order earlier this year as part of a larger rule-making seeking to facilitate more equitable treatment of faith-based institutions under ED programs. The Department summarized the intent of its new rules as follows:
To protect and preserve First Amendment freedoms at public institutions and to hold private institutions accountable to stated institutional policies regarding freedom of speech, including academic freedom, we propose to add regulations that require public institutions to comply with the First Amendment as a material condition of a grant and that require private institutions to comply with their stated institutional policies on freedom of speech, including academic freedom, as a material condition of a grant.6
As noted in the higher education community response submitted by ACE on behalf of nearly two dozen associations, including EDUCAUSE, higher education institutions already have a foundational commitment to protecting free speech and academic freedom:
All colleges and universities take seriously their responsibilities to comply with all applicable federal and state laws, including the First Amendment for public institutions, as well as with their stated institutional policies. Fostering academic freedom and open, engaging, and diverse intellectual and civic inquiry and debate is fundamental to our campuses and to our institutions' educational missions.7
With that in mind, the community response focused on the significant problems that implementation of the Department's proposed regulations would impose. For example, the new rules would allow ED to deny an institution access to grant funding from the Department if a court registers a single "final, non-default judgement" that the institution or any of its employees had violated an individual's free speech rights. If other federal agencies covered by the executive order adopted this provision in their regulations, the potential loss of grant funding from a single negative ruling could expand greatly.
As ACE notes, this would likely lead to a significant increase in lawsuits as well as the costs associated with any given legal action, as institutions would be heavily incentivized to appeal any adverse rulings to avoid a "final, non-default judgement." The ability of a finding that a single employee made a mistake in this area to put all of the institution's ED grant funding (and conceivably that of major research agencies) at risk further adds to the dramatic increase in legal exposure that the proposed regulations would generate.
The Department's proposal also confuses the concepts of "freedom of speech" and "academic freedom" by viewing the latter as simply another aspect of the former. It therefore seeks to extend the new regulations to academic freedom issues despite the fact that neither the legal references cited in the rules nor the executive order address academic freedom at all. This would sow further confusion and inappropriately create new opportunities for unfounded legal action that could threaten institutional research and education grants.
In light of these and other concerns, the higher education response recommends that ED substitute the original text of the executive order for the Department's problematic interpretation of that text and its requirements in the proposed regulations. As another option, ED could simply issue regulatory guidance (as opposed to new regulations) that reinforces the responsibility that institutions have to follow existing law in order to be eligible for ED grants. If the Department decided to move forward with new regulations anyway, it could greatly improve them through steps such as:
- Removing a single adverse judgment as the trigger for loss of grant funding and instead base such an action on a pattern of repeated, serious adverse court rulings
- Clearly defining the criteria for determining whether an institution should lose access to ED grants
- Deleting references to "academic freedom" from the regulations
- Increasing the time an institution has to notify the Department about an adverse ruling (so that it has more space with which to decide whether or not to pursue an appeal)
- Eliminating references to actions by a single individual (who could be acting outside the scope of his/her/their authority and in violation of institutional policy) as providing the basis for loss of grant funding
Conclusion
While the EDUCAUSE community faces unique policy challenges of its own, the issues cited above—Section 117 foreign gift reporting, DACA and its possible repeal, and regulations tying free speech compliance to federal grant funding—serve to illustrate the types of federal policies that can impact the institutions served by higher education IT leaders and professionals. If not developed and implemented appropriately, those policies can deprive colleges and universities of the resources needed to invest in technology to advance their missions or otherwise violate core principles on which higher education, and EDUCAUSE members, stand. Therefore, EDUCAUSE works in partnership with its fellow higher education associations to support and advance the unique interests of our membership as well as the overall interests of higher education.
For more information about policy issues impacting higher education IT, please visit the EDUCAUSE Review Policy Spotlight blog as well as the EDUCAUSE Policy page.
Notes
- ACE Government Relations, "Section 117 of the Higher Education Act Foreign Gift and Contract Reporting: Background and Summary of Issues of Concern," September 12, 2019. ↩
- Terry W. Hartle, letter to Stephanie Valentine, Agency Information Collection Request – Foreign Gift and Contracts Disclosure – Docket No. ED-2019-ICCD-0154, December 17, 2019. ↩
- American Council on Education, Education Department Withdraws Emergency HEA Section 117 Information Collection Request, February 11, 2020. ↩
- American Council on Education, ACE, 43 Other Associations Submit Amicus Brief Urging U.S. Supreme Court to Uphold the Legality of DACA, October 4, 2019. ↩
- Robert Barnes, "Trump Administration Defends Ending DACA, and Supreme Court's Conservatives Seemed Receptive," Washington Post, November 12, 2019; Adam Liptak, "Supreme Court Appears Ready to Let Trump End DACA Program," The New York Times, November 15, 2019; Richard Wolf, "Supreme Court Leans Toward Trump Plan to End DACA Program for Nearly 700K Undocumented Immigrants," USA Today, November 12, 2019. ↩
- US Department of Education, "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State Administered Formula Grant Programs, Developing Hispanic Serving Institutions Program, and Strengthening Institutions Program," Federal Register, Vol. 85, No. 12, January 17, 2020, p. 3191. ↩
- Ted Mitchell, Letter from the American Council on Education and related associations concerning Federal eRulemaking Portal (www.regulations.gov) Docket ID ED-2019-OPE-0080 ("Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State Administered Formula Grant Programs, Developing Hispanic Serving Institutions Program, and Strengthening Institutions Program," Federal Register, Vol. 85, No. 12, January 17, 2020), February 18, 2020 (https://www.acenet.edu/Documents/ACE-Higher-Education-Associations-Comment-Letter-on-Jan-17-2020-Free-Speech-NPRM.pdf). ↩
Jarret Cummings is Senior Advisor for Policy and Government Relations at EDUCAUSE.
© 2020 Jarret Cummings. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.