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July 1, 2020 — Lewis-Burke Associates LLC
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A VIEW FROM WASHINGTON
Federal policymakers continue to address the COVID-19 pandemic with efforts focused on oversight, providing reopening guidance, and stalled negotiations over additional relief aid. More information on congressional hearings and legislation addressing COVID-19 are available below. The U.S. Department of Education (ED) issued an interim final rule limiting CARES Act emergency student funding only to students eligible for federal financial aid under Title IV of the Higher Education Act (excluding, among others, international and undocumented students). The rule, which is being challenged in federal court, is the culmination of a regulatory process that started back in April and has seen ED backtrack on iterations of the guidance.
Congress will begin the process of providing education funding through the annual appropriations process next week. Funding for student aid, Minority-Serving Institutions, education research and more, is expected to be similar to levels provided in fiscal year 2020. On the Title IX compliance front, several higher education associations have submitted amicus briefs in two federal court cases seeking a delay in the effective date of the final Title IX regulations. ED issued the regulations on May 6 with an effective date of August 14. Finally, ED released a new online portal for institutions to report foreign gifts and contract as required by Section 117 of the Higher Education Act. In a press release accompanying the announcement, U.S. Secretary of Education Betsy DeVos stated, “Colleges and universities owe it to all of us to be transparent about their foreign financial ties.” Section 117 reporting has been a contentious issue for the higher education and research communities, with concerns that ED has overstepped their authority. ED also announced that it will pursue negotiated rulemaking on requiring submission of true copies of original agreements covered by Section 117. In a regulatory filing announcing the forthcoming rulemaking, ED stated "This proposed regulation is necessitated by the ongoing failure of many institutions to comply with the statutory mandate that institutions accurately and fully report covered gifts and contracts from foreign sources in a timely manner."
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CONGRESSIONAL UPDATES AND NEWS
Congressional Committees Examine Impact of COVID-19 on Education
The U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee held five hearings on the novel coronavirus during the month of June. Three of them, “Going Back to College Safely;” “Going Back to School Safely;” and “COVID-19: Update on Progress Toward Safely Getting Back to Work and Back to School” were directly related to education. During the hearing focused on returning to college safely, the Committee highlighted the need for vigilant testing, social distancing requirements, and comprehensive plans to deal with a resurgence of COVID-19 should campuses reopen in the fall. Members and witnesses discussed how athletics fits into reopening and the impact of the pandemic on at-risk students. Furthermore, there was bipartisan interest in the federal government providing clearer guidelines regarding how to safely reopen college campuses. The witnesses asked for additional federal investments in student aid and research relief; carefully crafted liability protections for universities; and clearer federal guidelines. Senate Majority Leader Mitch McConnell (R-KY) and Senate HELP Chairman Lamar Alexander (R-TN) are both in favor of liability protections, which are likely to be included in a future coronavirus stimulus package. The hearing “Going Back to School Safely” assessed the risks associated with reopening K-12 schools in the United States, while the hearing “COVID-19: Update on Progress Toward Safely Getting Back to Work and School” examined what additional federal support is needed to continue to fight COVID-19 and allow Americans to safely return to work and school.
In the U.S. House of Representatives, the Education and Labor Committee also held five meetings on COVID-19 during June, with two of them related directly to education issues. The hearing “Budget Costs and Lost Learning: Assessing the Impact of COVID-19 on Public Education” examined how COVID-19 has impacted state and local government revenue and how shortfalls will worsen existing educational inequities across the United States, with a focus on K-12 public schools. The second hearing, “Inequities Exposed: How COVID-19 Widened Racial Inequities in Education, Health, and the Workforce,” examined steps that Congress can take to address racial inequities in education, as well as healthcare and the workforce, that have been exacerbated by the novel coronavirus. Regarding education, the Committee specifically considered how racial bias and chronic underfunding of schools serving minority communities have created achievement gaps. Several members of Congress have indicated the need to include additional support for higher education in a future COVID-relief bill. Senate Democrats recently released a proposal that would support $132 billion for higher education. Some Republicans have suggested lower levels of support.
Senate Armed Services Committee Approves Defense Policy Bill, Includes Workforce Provisions
The U.S. Senate Armed Services Committee (SASC) approved its version of the fiscal year (FY) 2021 National Defense Authorization Act (NDAA), an annual bill that authorizes programs and sets policies for the U.S. Department of Defense (DOD) and national security. While the bill primarily focuses on defense policy, it commonly includes provisions related to the education and workforce needs of the defense enterprise. Notably, the SASC-approved NDAA bill continued the trend of proposing policies focused on foreign interference and competition with China, as well as a focus on emerging technologies and workforce needs. Provisions would:
- Create a university consortium with well-established education and research programs in cybersecurity and critical infrastructure protection for national cybersecurity education, training, and workforce development efforts;
- Direct the Space Force to partner with academic institutions to develop the “workforce of the future” to enable next-generation space capabilities;
- Require the DOD to develop recommendations on graduate education policies intended to strengthen the defense industrial base and supply chain;
- Establish a program for providing part-time or term employment for faculty or students from institutions of higher education at DOD laboratories, including at least five positions focus on artificial intelligence and machine learning activities;
- Direct the Secretary of Defense to partner with the National Academies of Sciences, Engineering, and Medicine to analyze talent recruitment programs employed by China;
- Require background checks for individuals applying to the DOD Technology and National Security Fellowship program.
The committee report accompanying the SASC NDAA is available here. Additional changes to the Senate NDAA bill may be made during the floor amendment process this week. The House is also expected to begin consideration of their version of the NDAA, and Lewis-Burke will continue to provide updates on relevant provisions as the bills advance.
Legislative Bills of Note
- H.R. 7308 (Rep. DeGette, D-CO) – Research Investment to Spark the Economy (RISE) Act. The RISE Act would authorize $26 billion in emergency funding for federal science agencies to award to institutions of higher education and national laboratories to continue working on research projects that were disrupted due to COVID-19. Representative DeGette’s press release is available here.
- S. 3947 (Senator Kaine, D-VA) - Coronavirus Relief Flexibility for Students and Institutions Act. The Coronavirus Relief Flexibility for Students and Institutions Act would provide increased flexibility for colleges and universities to use CARES Act education funding by expanding the types of students eligible to receive emergency aid, allowing institutions to use CARES funds to cover revenue losses from the pandemic, among other items. Senator Kaine’s press release is available here.
- S. 3997 (Senator Portman, R-OH) – Safeguarding American Innovation Act. The Safeguarding American Innovation Act was introduced in response to growing concern around science and security issues in the U.S research enterprise. This legislation would lower the Section 117 gift reporting threshold to $50,000, make it a federal crime to fail to disclose foreign ties on a federal grant, and allow the State Department to deny visas to researchers. Senator Portman’s press release is available here.
- S. 939 (Senator Kennedy, R-LA) - Concerns Over Nations Funding University Campus Institutes in the United States (CONFUCIUS) Act. The CONFUCIUS Act would require Confucius Institutes (CI) at U.S. institutes of higher education to protect academic freedom on campus, prohibit the application of foreign laws on campus, and grant full control over the CI to the institution where it is located. This bill passed the Senate on June 10, 2020. Senator Kennedy’s press release is available here.
- S. 4004 (Senator Rubio, R-FL) – Fairness in Collegiate Athletics Act (FCAA). The FCAA would require the NCAA to implement rules for student athlete compensation for their name, image, or likeness by June 30, 2021 and provide preemption of state laws based on name, image, and likeness, among other items. Senator Rubio’s press release is available here.
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ADMINISTRATION AND AGENCY UPDATES AND NEWS
Supreme Court Upholds DACA in 5-4 Decision
The Supreme Court, in a 5-4 decision, rejected the Trump Administration's attempt to dismantle the Deferred Action for Childhood Arrivals (DACA) program, which protects nearly 650,000 immigrants who arrived in the United States as children from deportation. The majority argued that the Department of Homeland Security (DHS) did not comply with procedural requirements, including consideration of hardships DACA recipients could face if the program were to be ended. The day after the Supreme Court released their decision, President Trump tweeted that the Administration would be attempting to end the DACA program again through “submitting enhanced papers to properly fulfill the Supreme Court’s ruling,” though he did not provide a timeline for any additional action. Further attempts by the Administration to end the DACA program a second time are not likely to be resolved before the November 2020 presidential election. President Trump’s vow to attempt to end DACA again has led lawmakers, including Republican Senator Lisa Murkowski, to acknowledge that Congress will need to act to permanently address the status of DACA recipients. However, congressional Democrats, seeing a potential full takeover of the White House and both chambers of Congress after the November election, are considering waiting until the new year to push immigration legislation.
White House Efforts to Restrict Immigration Continue
This past month, the White House continued its push to limit immigration with President Trump’s issuance of a “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” The June 22 proclamation is an extension and expansion of previous presidential proclamations restricting immigration. While the proclamation impacts visas important to higher education and research (H-1B, H-4, and some J-1 visas), it does not impact the Optional Practical Training (OPT) program, as was initially feared by the university community. The proclamation suspends through December 31, 2020, the entry of certain individuals who are outside the United States and do not have in their possession, as of June 24, a valid and unexpired visa or related travel document. The suspension of visas comes with several exceptions. The proclamation directs the Department of Homeland Security (DHS) to consider issuing regulations “ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers." DHS, Department of State, and the Department of Labor are also directed to recommend modifications to the proclamation within 30 days of June 24 and every 60 days thereafter. As such, restrictions could be extended to visas and programs not currently affected, including the OPT program, and additional restrictions to H-1B visas could potentially be promulgated.
ED Continues to Release CARES Act Guidance
The U.S. Department of Education (ED) continues to publish and update guidance on the allocation and use of funding provided in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. ED published a notice establishing a deadline of August 1, 2020, for institutions of higher education that did not initially apply for their allocations from the Higher Education Emergency Relief Fund (HEERF) to submit their applications.
On June 17, ED published an interim final rule outlining student eligibility for CARES Act emergency funding, offered under the Higher Education Emergency Relief Fund (HEERF). The interim rule, which was likely issued in response to pending lawsuits, reiterates the Department’s on-going position that student eligibility for Title IV aid is required for HEERF student grants. In a press release, ED noted that aligning eligibility for CARES Act student aid grants with Title IV eligibility means “foreign nationals and most other non-citizens would not be eligible, as well as those who: (1) are dual-enrolled in secondary school; (2) do not meet academic progress standards; (3) are in default on a federal student loan or owe any refund relating to a federal student grant; (4) are without a high school diploma, GED certification, or recognized equivalent or exception; or (5) are in programs that are not Title IV-eligible programs.” ED also released “Supplemental Frequently Asked Questions under Section 18004 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.” The guidance document addresses questions on the deadline to spend HEERF funds, the use of HEERF funds during summer and fall terms, and the use of CARES Act funds for scholarships, among other questions.
Open Grant Competitions at ED
Reimagine Workforce Preparation Grant Program Announced
The U.S. Department of Education (ED) recently announced a new higher education discretionary grant program, the “Reimagine Workforce Preparation (RWP) Grant Program,” which is funded through the Education Stabilization Fund (ESF) authorized by the CARES Act. The Reimagine Workforce Preparation Grant competition is open to a State Workforce Board, which may award subgrants to institutions of higher education. Grants may be used to develop and implement short-term education and training programs and/or career pathways programs (Absolute Priority 1). Grants may also be used to support the development of small business incubators located on the campuses of, or developed in association with, institutions of higher education (Absolute Priority 2). A State may submit only one application in response to this notice to implement a proposed project that addresses either Absolute Priority 1 or Absolute Priority 2, but not both.
The Department will determine the number of awards to be made under each absolute priority based on the quality of applications received consistent with the selection criteria and priorities. It will also determine the size of an award made to an eligible applicant based on a review of the eligible applicant’s budget. ED anticipates $127.5 million to be available through this grant program.
The optional notice of intent to apply is July 13, 2020. Applications are due August 24, 2020. Additional information on the RWP grant is available here.
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FACTS AND FIGURES: Learn More, Earn More
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As workers’ educational attainment rises, their unemployment rates decrease and earnings increase.
Source: https://www.bls.gov/careeroutlook/2020/data-on-display/education-pays.htm.
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WHAT WE'RE READING: ACE’s CONNECTED IMPACT Unlocking Education and Workforce Opportunity Through Blockchain
“With so many students, workers, colleges and universities, employers, and other stakeholders seeking to document, verify, and share evidence of learning, it is easy to see how blockchain’s unique attributes of a tamper-proof, shared ledger could optimize human capital and promote competitiveness and social mobility. College registrars, hiring managers, students, and workers all could share a distributed ledger in near real-time, making education and labor market transactions to mutual benefit. Importantly, blockchain would enable more individual student and employee agency, giving them more control over their own human capital record.”
Source: https://www.acenet.edu/Documents/ACE-Education-Blockchain-Initiative-Connected-Impact-June2020.pdf.
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