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November 2, 2020 — Lewis-Burke Associates LLC
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A VIEW FROM WASHINGTON
The Trump Administration continued its regulatory efforts to shape the flow of international students and scholars to institutions of higher education. Those efforts include a proposed rule to set time limits for student and exchange visitor visas, an interim final rule to restrict which occupations qualify for H-1B visas, and a rule currently in effect that could result in higher wages for individuals with H-1B visas. Several organizations, including multiple universities, have filed litigation contesting the legality of the H-1B changes. Institutions of higher education and Members of Congress have submitted comments opposing the proposal to set time limits for student visas. This proposal would be a stark departure from the current “duration of status” policy, which allows international students to stay in the U.S. until they have completed their course of study.
The U.S. Department of Education (ED) released several updates on its Section 117 foreign gift reporting efforts. Section 117 of the Higher Education Act (HEA) requires institutions to disclose gifts or contracts from foreign sources when valued at a combined total per country of $250,000 or more. At a briefing on Section 117, ED released a new “Report on Institutional Compliance with Section 117 of the Higher Education Act of 1965,” which summarizes ED’s investigation around Section 117 compliance. The Department also released an unofficial notice, which lays out ED’s interpretation of its enforcement authority, including subpoena power, for failure of institutions to adequately report foreign gifts.
With mere hours remaining until the November 3 election, forecasting on potential impacts of the election on higher education is provided below. As the 116th Congress winds down and efforts to prepare for the 117th Congress begin, education issues confronting federal policymakers include the need for COVID-19 relief, final fiscal year (FY) 2021 spending for ED, and further regulatory developments (especially if there is a change in Administration).
Finally, the U.S. Senate confirmed Amy Coney Barrett to become the 115th Associate Justice on the United States Supreme Court. The Supreme Court is expected to take up several cases in the coming months with potential implications for education, including lawsuits dealing with the consideration of race in the admissions process. While on the U.S. Court of Appeals, Justice Barrett wrote a ruling in a Title IX case that many observers note could open up gender discrimination claims against institutions of higher education.
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CONGRESSIONAL UPDATES AND NEWS
House Democrats Continue ED Oversight Efforts
The relationship between the House Education and Labor Committee Democrats and the U.S. Department of Education (ED) could be described as less than amicable. ED officials, including Secretary of Education Betsy DeVos, have received numerous oversight inquiries and their testifying before the Committee has often been tense. Recently, the Committee issued subpoenas to several ED officials regarding the Department’s treatment of a for-profit college chain. A press release announcing the subpoenas states, “Due to the Department’s obstruction, the Committee’s only available avenue to obtain an accurate understanding of the Department’s role in the Dream Center collapse is to pursue depositions of the knowledgeable Department officials under subpoena…The Committee will continue its oversight of this matter with the goal of getting answers about Dream Center’s collapse.”
Impact of the 2020 Election on Key Congressional Education Committees
Due to the retirement of Chairman Lamar Alexander (R-TN) at the end of the 116th Congress, the U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee will have a new chair no matter which party controls the Senate after the 2020 election. Should Democrats take control of the Senate, it is widely expected that Ranking Member Patty Murray (D-WA) will become Chairwoman. If Republicans maintain their majority in the Senate, it is less clear who would take over as the head of the committee. In addition to setting priorities for the committee, the Chair/Ranking Member relationship often sets the tone for what can be accomplished in a bipartisan manner on the committee.
The House Education and Labor Committee is not likely to see as much turnover as the Senate HELP Committee, because both Chairman Bobby Scott (D-VA) and Ranking Member Virginia Foxx (R-NC) are unlikely to lose re-election and Democrats are expected to maintain control of the U.S. House of Representatives. In the next Congress, we can expect the congressional education committees to work on a host of important issues to higher education, including reauthorization of the Higher Education Act and the Workforce Innovation and Opportunity Act.
Legislative Bills of Note
- H.R. 8468 (Rep. Lori Trahan, D-MA)- STRONG Act of 2020. This legislation would authorize $600 million in funding for current undergraduate students and recent graduates to enroll in teacher residency programs and enter the teaching workforce faster. Representative Trahan’s press release on the legislation can be found here.
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H.R. 8486 (Rep. Mike Gallagher, R-WI)- Student Empowerment and Financial Literacy Act. This legislation would create a competitive grant program through the Department of Education (ED) to promote financial literacy programs in K-12 schools. Representative Gallagher’s press release on the legislation can be found here.
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H.R. 8693 (Rep. Ro Khanna, D-CA)- 21st Century Jobs Act. This legislation would create a Federal Institute of Technology (FIT) and provide $900 billion in R&D funding for emerging technologies like Advanced Manufacturing, Synthetic Biology, Artificial intelligence, Biotechnology, and Cybersecurity. Representative Khanna’s press release on the legislation can be found here.
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ADMINISTRATION AND AGENCY UPDATES AND NEWS
ED Continues Foreign Gift Reporting Oversight Campaign
As highlighted above, the U.S. Department of Education (ED) continues to enhance its oversight of foreign gift reporting by institutions of higher education. In addition to publishing a report, ED has announced its intention to issue a notice of proposed rulemaking to require institutions to submit true copies of any gift or contract under Section 117 reporting and to affirm the Department’s right to issues subpoenas related to Section 117. The proposed rule has not yet been posted. ED has also released a new “Foreign Gift and Contract Online Search.” The tool and other ED efforts on Section 117 can be found here.
Joining ED officials at a briefing announcing these efforts, was Department of State’s Under Secretary for Economic Growth, Energy, and the Environment Keith Krach, at the who reiterated the concern of undue influence by China on institutions of higher education. During the briefing, panelists noted ED’s involvement in the research integrity work being done by the White House Office of Science and Technology Policy and ED’s intention to continue to work with Congress on Section 117 enforcement.
Proposed Limitations for International Students Causes Alarm
As noted above and of tremendous concern to the academic and research communities, the Department of Homeland Security (DHS) announced a proposed rule in late September that would replace the current duration of status policies for F, J, and I visa holders with fixed time periods of admission, as a way to increase oversight over these categories of nonimmigrants. The proposed fixed length of time would not exceed four years. For some visa holders, admissions would be limited to up to two-years for those from countries on the State Sponsor of Terrorism List, those from countries with higher overstay rates, or those students who are enrolled in specific courses of study of national security concern. Additionally, nonimmigrants enrolled in unaccredited schools or at programs not participating in E-Verify or would face shorter stay limits. The rule would allow for a transition period from the Duration of Status framework for current visa holders to the fixed date model, not to exceed four years from the rule’s effective date.
For those F, J, and I nonimmigrants seeking additional time for admission, individuals will have to apply for an extension of stay directly with DHS or to depart the country and apply for admission at a port of entry. DHS also proposes new procedures and standards to request extensions. For F-1 visa holders, the rule proposes new limitations on the number of times a student could change educational programs and would limit language training to 24 months of study in aggregate. DHS notes that these changes have the potential to reduce the nonimmigrant student enrollment and exchange visitor participation.
The proposed rule, which was accepting comments for only 30 days, received over 32,000 public comments. Over 80 higher education associations joined an American Council on Education (ACE) response letter in opposition to the proposed rule. The rule has also received push back from some Senate and House Democrats who sent letters to DHS asking for the proposed rule to be withdrawn and some House Republicans who asked DHS for a more targeted approach. The Trump Administration is now in the process of reviewing the comments in preparation for a final rule.
Open Funding Opportunities
ED FY 2021 Seminars Abroad Program
The Department of Education (ED) issued an update on their Fulbright-Hayes Seminars Abroad program, which provides U.S. educators who teach in the focus areas of social sciences and humanities to travel abroad for a short period of time to improve “their understanding and knowledge of the peoples and cultures of other countries”. Applications are now available for the summer 2021 program where U.S. Postsecondary faculty are eligible for the seminar in Mexico titled “The Third Root: Exploring African Heritage in Mexico” for four weeks between July 2021 – August 2021.
Applications are to be submitted on www.G5.gov by December 18, 2020 by 11:59:59 P.M. Eastern Time (ET). You must be a full-time faculty member or work two half-time permanent positions and be a U.S. citizen to be eligible to apply. Applicants will be chosen on a points system, with new applicants receiving three points and faculty members of a community college or a Minority-Serving Institution (MSI) receiving an additional point. Please note that these dates may change due to the ongoing COVID-19 pandemic. More information on the opportunity can be found here.
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FACTS AND FIGURES: Trends in Pell Grants and Tuition and Fees
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WHAT WE'RE READING: IES Director Announces “Operation Reverse the Loss”
“We are now nearly eight months into arguably the greatest education crisis the nation has faced in our lifetime. As I discussed last month, if the estimates of learning loss resulting from COVID-19 as presented by the Annenberg Center in June and, more recently, by Macke Raymond, are anywhere near correct, our nation is facing a catastrophe.
We will reposition as much money and resources from our existing budget as we can to support Operation Reverse the Loss. Given the gravity of the situation and the size of the problem, we intend to seek additional resources to support this work.”
https://ies.ed.gov/director/remarks/10-26-2020.asp
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