Reauthorization of the Higher Education Act: Where Do We Go From Here?

Sarah Mancoll, SPSSI Policy Director

The Higher Education Act (HEA)—the major piece of federal legislation that guides higher education policy in America—is up for reauthorization. Although the HEA reauthorization process—like many reauthorizations—is slow, it is important to keep in mind some of the key issues at stake, and to consider how changes to the law would affect SPSSI members, their colleagues and students, and institutions. Below, I summarize two important areas contained within the bills put forth by House Republicans and House Democrats.

Federal student financial assistance. In December of 2017, House Republicans introduced the Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act (H.R. 4508), which would reauthorize HEA. The bill included a number of provisions that the higher education community welcomed, such as the creation of a $300 Pell Grant bonus for students who take 15 credits per semester and simplification of the Free Application for Federal Student Aid, or FAFSA, Form. However, the bill also proposed numerous cuts to financial assistance programs that benefit graduate students (e.g., Federal Work-Study ineligibility, Grad PLUS Loan elimination), and included a number of other concerning provisions (e.g., not making permanent inflation indexing for Pell Grants, eliminating subsidized undergraduate loans).

This past summer, House Democrats introduced their bill, the Aim Higher Act (H.R. 6543). The higher education community has been more welcoming of this bill, which would increase the maximum Pell Grant award by $500, preserve the Federal Supplemental Educational Opportunity Grant, or FSEOG, and protect struggling borrowers from the severe consequences of default by placing borrowers who are more than 120 days delinquent into an income-based repayment plan.

For more information, visit this SPSSI webpage to read about SPSSI’s 2018 Advocacy Day on the topic of preserving federal student grant and loan programs. The webpage includes links to a fact sheet and open letter that provide greater detail on what’s at stake.

First Amendment protections and civil rights protections. Several sections of the House Republicans’ PROSPER Act include provisions that, at face value, reaffirm the First Amendment rights to free speech, assembly, and free exercise of religion in higher education settings. For example, Section 111 of the PROSPER Act articulates that “free speech zones and restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment of the Constitution” and that “no public institution directly or indirectly receiving financial assistance under this Act should restrict the speech of such institution’s students through such zones or codes.” The language in Section 115 of the bill states that religious student organizations must not be denied the same privileges afforded other student organizations “because of the religious beliefs, practices, speech, membership standards, or standards of conduct of the religious student organization.” Section 117 of the bill states that the government may not prohibit or penalize an institution for “acts or omissions by the institution that are in furtherance of its religious mission or are related to the religious affiliation of the institution.”

According to The New York Times, these provisions are “correcting what they [House Republicans] see as antipathy toward conservative beliefs on American campuses” and could be seen as a license to discriminate against, for example, LGBTQ students. As a result, House Democrats are deeply concerned. Here is what Ranking Member Bobby Scott (the most senior Democrat) of the House Education and the Workforce Committee had to say during a recent hearing:

“The increased presence of students of different races, religions, socioeconomic backgrounds, gender identities and sexual orientations on our campuses has the opportunity to grow the number of voices, and the types of speech that are valued on our campuses. But with this growth has also come a rise in the partisan defense of First Amendment rights. While it is not always the case, many students only hear an invocation of the First Amendment on campus when they are being asked to tolerate speech and ideas that are intolerant of them.”

Needless to say, the House Democrats’ Aim Higher Act includes provisions intended to strengthen compliance around Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.

To learn more about the legal cases, arguments, and decisions that inform current debates, consider reading “The Intersection of title VI, Title IX, the First Amendment and Academic Freedom,” a paper presented at the 2015 annual conference of the National Association of College and University Attorneys.

Additional concerns of note. Although I do not have the space here to explore the many, many issues at stake in HEA reauthorization, I will note a few areas that will be of particular interest to SPSSI members. This article in The New York Times does a good job of touching on them.

• Preventing and responding to campus sexual assault. The two House bills differ in how they respond to growing public concern over sexual assault on campus. Education Secretary DeVos has also proposed a controversial new rule that may increase protections for accused students while at the same time decreasing protections for students who file (or would have filed) accusations.

• Regulating for-profit institutions. Under President Obama, the Department of Education created new regulations following the revelation of widespread abuses at for-profit institutions. The two House bills differ in how they would respond to such institutions. Education Secretary DeVos might also continue to unwind Obama-era regulations and kill investigations as we head into 2019.

The 116^th Congress. As speculated recently in The Chronicle of Higher Education, with Republicans maintaining power in the Senate and White House, and Democrats taking power in the House of Representatives, HEA reauthorization is unlikely to happen in the 116^th Congress. First, in the Senate, Chairman Lamar Alexander and Ranking Member Patty Murray of the Senate Committee on Health, Education, Labor and Pensions are unlikely to come to agreement on a compromise bill. Second, Democrats may be hesitant to reauthorize HEA while Secretary of Education Betsy DeVos remains in power as she would be the one implementing the new law and interpreting it through regulations.

Interested in staying on top of HEA reauthorization? Check out the Higher Education Act webpage of the American Council on Education. The Association of Public and Land Grant Universities, the Council of Graduate Schools, and the American Association of University Professors also have a number of useful resources on their websites. 

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