The 116th Congress will debate a variety of issues of interest to community colleges and their students. However, enacting legislation may prove difficult in a partisan climate. There is promise for movement in some key areas, including infrastructure. At a minimum, annual appropriations must be provided with much at stake for community colleges and their students.
What follows is a brief summary of some major legislative and regulatory areas which AACC expects to be active in 2019 and 2020. AACC’s full legislative agenda can be found here.
Higher Education Act (HEA) Reauthorization
Efforts to reauthorize the HEA will continue in the new Congress, though political and policy differences similar to those encountered in the 115th Congress will make enactment of legislation challenging.
The incoming Chairman of the House Committee on Education and the Workforce, Rep. Bobby Scott (D-VA), is expected to move reauthorization legislation relatively early in the first session of the 116th Congress. In 2018, Scott introduced a comprehensive and hugely ambitious (and expensive) reauthorization bill, the Aim Higher Act (H.R. 6543). The legislation contains a variety of provisions that would greatly benefit community colleges and their students. These include significant increases in Pell Grant funding, Dreamer access to Title IV aid, “second chance” Pell, new eligibility for short-term training, dedicated funding to improve developmental education, grants for community college student success, a national unit record data system, substantial investments in Minority-Serving Institutions, and increased and needed safeguards against abuses by for-profit institutions. The legislation does include some “accountability” provisions that could be problematic.
The Senate reauthorization effort will be guided by the two primary players in the last Congress: Health, Education, Labor and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) and Ranking Member Patty Murray (D-WA). The majority and minority failed to reach consensus on legislation in the last Congress. It remains to be seen whether they can do so in the next one, and, if they do, whether it can clear the Senate. Sens. Alexander and Murray have strong policy preferences on and knowledge of higher education issues. Adding to these dynamics is the fact that numerous members of the HELP committee have introduced legislation on various pieces of the HEA, much of it bipartisan.
AACC continues to urge Congress to pass reauthorization legislation. The sensitive politics and policy issues surrounding the HEA should not obscure the fundamental need to update the statute, last reauthorized more than ten years ago. Not only has higher education changed tremendously during that time, but it has become clear that the HEA is impeding educational innovation.
When it comes to funding, community college students and institutions fared better in the 115th Congress than might have been anticipated. During the past two years significant increases were obtained in a variety of programs, including a $275 hike in the Pell Grant maximum. Looking forward, increases in key programs will hinge on whether Congresses increases the statutory cap on overall appropriations mandated by the 2011 Budget Control Act. This so-called “sequester cap” has been raised three times, spanning six fiscal years, in various deals between Congress and the Executive Branch.
Consequences are dire if these domestic spending ceilings are not raised. The FY 2020 cap is 9.3% below FY 2019 domestic funding, and the FY 2021 cap is 7.1% below that mark. While it is hard to imagine any Congress agreeing to reductions of this size, providing sufficient leeway for appropriators to significantly boost domestic spending will be far some simple, and almost certainly politically charged.
Community colleges will continue to push for boosts to the Pell Grants program, Title III-A, Hispanic-Serving Institutions, the Carl Perkins Act, adult education, ATE, TRIO, and other programs. The new chair of the House Subcommittee on Labor, HHS, and Education Appropriations, Rep. Rosa DeLauro (D- CT), is a big community college supporter. History has also shown that, in election years, spending tends to increase.
Accreditation and Innovation Regulatory Review
In the first part of 2019, the Department of Education (ED) is conducting a major regulatory review and rewrite of accreditation and other key regulations. The revisions largely concern academic activities and their interaction with the Title IV student aid programs, and the stakes are huge.
The central thrust of ED’s proposed regulatory update is to foster greater “innovation” in higher education and, among other things, to review the oversight of institutions by accreditors, states, and ED itself. ED is not required to undertake this initiative; no recent statutory changes necessitate a revision of the rules. In fact, the regulatory effort can be attributed, in part, to Congress’s failure to reauthorize the HEA in a timely fashion.
ED plans to establish a negotiated rulemaking committee along with three subcommittees that will recommend policies to the parent committee for action. ED is required to subject all Title IV regulations to negotiation, and, if consensus is reached, the published rules must reflect that consensus.
The primary, overarching negotiating committee is to examine “Accreditation and Innovation,” while the three proposed subcommittees will address Distance Learning and Educational Innovation, the TEACH Grant program, and Faith-Based Entities. The latter will focus on ensuring that the federal government does not impinge upon faith-based institutions’ activity. In a change from previous practice, and to expedite the negotiating process, ED plans to provide draft regulations at the first meeting. This positive step reflects the fact that, given the wide range of potential regulatory changes on the issues, a common jumping off point will help focus discussions.
Although these regulatory processes by definition do not involve legislation per se, they are so consequential and high profile that they invariably will involve Congress, especially the HEA reauthorization.
Title IX Regulations
The same can also be said for ED’s proposed regulations that defines sexual harassment that constitutes sexual discrimination under Title IX and details when and how institutions must respond. Because these regulations do not deal with Title IV, they are being promulgated through the traditional rulemaking process rather than negotiated rulemaking. ED is accepting comments on the proposed regulations until January 28, with an eye to implementing final regulations later in 2019. The regulation marks a watershed in Title IX policy, as it is the first time that the government has promulgated a formal Title IX regulation addressing sexual harassment. Previously, implementation of the law in this area has been done through sub-regulatory guidance, which lacks the same clear legal force of regulation or the enabling statute.
In brief, the regulations would somewhat narrow the definition of what constitutes sexual harassment under Title IX, narrow the set of circumstances under which an institution is required to respond to a complaint (only when the institution has actual knowledge of a complaint), and prescribe a legalistic set of procedures that institutions must follow upon receipt of a formal complaint. These procedures are primarily intended to buttress due process for accused students. AACC’s summary of the regulations can be found here.
AACC will develop its own comments and participate in developing higher education community comments in the regulatory proceeding, and advocate for community college interests in the inevitable legislative activity in this area.
The Democratic takeover of the House of Representatives may bode well for renewed Congressional action on legislation that provides a path to citizenship for Dreamers, but crafting a package that can garner the 60 votes necessary in the Senate and President Trump’s signature remains a daunting challenge.
Congressional efforts to pass various iterations of immigration legislation all failed in the 115th Congress because no one package contained the right combination of protection for Dreamers, border security and other immigration reform measures to succeed. The House, under Democratic control, may have the inclination and votes to pass legislation that focuses primarily or exclusively on the Dreamer issue (a so-called “clean” Dream Act), but Senate passage will likely need to address a similar combination of issues as legislation considered in the last Congress. The strengthened Republican Senate majority may make it harder to pass anything. President Trump has given no recent indication that he is changing his demand that immigration legislation address the border wall, reduction of family-based migration and elimination of the visa lottery system in addition to protection for Dreamers. On the positive side, there is still strong public support for protecting Dreamers and any move towards President Trump’s position on border wall funding in the FY 2019 appropriations process may change the legislative dynamic on immigration legislation for the better.
The federal judiciary has taken significant pressure off Congress to act immediately by issuing several injunctions that have kept the Deferred Action for Childhood Arrivals (DACA) program in place for those seeking renewal of their DACA status. Most recently, the 9th Circuit Court of Appeals affirmed one of these injunctions. The Supreme Court may be the final arbiter on the judicial front, and the prospects there are likely not positive.
AACC continues to urge Congress to pass the Dream Act or similar legislation.
The Democratic takeover of the House also brought with it renewed discussions of legislation to invest significantly in the nation’s infrastructure. Many see infrastructure as one issue where Congressional Democrats and President Trump may be able to work together.
While there may be some common ground between the parties on “doing something” on infrastructure, there are significant differences between them that will need to be overcome. First and foremost is the amount of federal resources that would be dedicated to an infrastructure program. The Trump administration’s plans in the 115th Congress were largely based on spurring large amounts of private investment with relatively small federal outlays. Democratic proposals have called for significantly more federal resources. Sharply increased budget deficits fostered by last December’s tax cut legislation and increased federal spending will make it harder to bridge this policy division.
At the outset of the Trump administration and the 115th Congress, when infrastructure was a top issue (albeit briefly), AACC proposed aiding community colleges with their ongoing infrastructure needs, and helping train the workforce needed for any large infrastructure initiative. AACC will continue to advocate these positions in the 116th Congress.